Sri Clarence Pais Vs. The State Of Karnataka - Court Judgment

Excerpt:
- 1 - wp no.11158/2013 c/w w.p.nos.43928/2012, 11966/2013 23287/2013, 62434/2016 in the high court of karnataka at bengaluru r dated this the22d day of may, 2023 before the hon'ble mr justice krishna s dixit w.p. no.11158/2013(lr) c/w w.p.nos.43928/2012, 11966/2013, 23287/2013, 62434/2016(lr) in w.p.no.11158/2013: between:1. sri. clarence pais, aged about84years, s/o late l c pais, advocate & notary, residing at light house hill, mangaloref-575 001. dakshina kannada district.2. the diocese of mangalore, represented by lord bishop, rev dr. aloysius p d souza, aged about71years, son of late mathias d souza, residing at bishops house, kodialbail, mangalore-575 003. dakshina kannada disttrict.3. srimad anantheshwara temple, manjeshwar kerala state, represented by its trustee, k gokuldas bhat,.....

Judgment:

- 1 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE22D DAY OF MAY, 2023 BEFORE THE HON'BLE MR JUSTICE KRISHNA S DIXIT W.P. No.11158/2013(LR) C/W W.P.Nos.43928/2012, 11966/2013, 23287/2013, 62434/2016(LR) IN W.P.No.11158/2013: BETWEEN:

1. SRI. CLARENCE PAIS, AGED ABOUT84YEARS, S/O LATE L C PAIS, ADVOCATE & NOTARY, RESIDING AT LIGHT HOUSE HILL, MANGALOREF-575 001. DAKSHINA KANNADA DISTRICT.

2. THE DIOCESE OF MANGALORE, REPRESENTED BY LORD BISHOP, REV DR. ALOYSIUS P D SOUZA, AGED ABOUT71YEARS, SON OF LATE MATHIAS D SOUZA, RESIDING AT BISHOPS HOUSE, KODIALBAIL, MANGALORE-575 003. DAKSHINA KANNADA DISTTRICT.

3. SRIMAD ANANTHESHWARA TEMPLE, MANJESHWAR KERALA STATE, REPRESENTED BY ITS TRUSTEE, K GOKULDAS BHAT, AGED ABOUT70YEARS, SON OF LATE A V P BHAT, RESIDING AT "VARALAXMI" - 2 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 NEAR S V TEMPLE, KATAPADI574105. UDUPI DISTRICT.

4. ROSARIO CATHEDRAL, AGED ABOUT55YEARS, CHURCH ROAD, PANDESHWAR, MANGALORE, DAKSHINA KANNADA DISTRICT. REPRESENTED BGY ITS PARISH . PRIEST, REV. FR. STANY GOVEAS5 JANGAMA MUTT, REPRESENTED BY ITS HEREDIATRY TRUSTEE DR U C NIRANJAN, AGED ABOUT49YEARS, SON OF U CHOLAYA, HINDU, RESIDING AT JANGAMA MUTT, OPPOSITE CITY BUS STAND, UDUPI-576 101. UDUPI DISTRICT.

6. OUR LADY OF MIRACLES, MILAGRES CHURCH FATHERS RESIDENCE MILAGRES, MANGALORE-575 001. REPRESENTED BY ITS PARISH PRIEST REV. FR. VALERIAN D SOUZA.

7. SRI. SHASHIDHAR D PANDI, AGED ABOUT74YEARS, SON OF LATE DATTATREYA RAO, PANDIT, RESIDING AT KALYAN BHAVAN, KADRI TOLL GATE, MANGALFORE-575 002. DAKSHINA KANNADA DISTRICT.

8. MRS. MARIETTE MASCARENHAS, W/O LATE STANISLAUS TIMOTHY, MASCARENHAS, INDIAN CHRISTIAN CATHOLLC, AGED ABOUT71YEARS, RESIDING AT ALBERT MANSION, - 3 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 STURROCK ROAD, MANGALORE, DAKSHINA KANNADA DISTRICT.

9. MULGARS AND LAND OWNERS ASSOCIATION(R) LAW CHAMBERS, LIGHT HOUSE HILL, MANGALORE-575 001. DAKSHINA KANNADA DISTRICT, REPRESENTED BY ITS PRESIDENT. MR CLARENCE PAIS. (PETITIONERS NO.1-3 AND78 ARE SENIOR CITIZEN BENEFIT NOT CLAIMED) …PETITIONERS (BY SRI. UDAYA HOLLA., SENIOR COUNSEL A/W MISS. DESIREE., ADVOCATE) AND:

1. THE STATE OF KARNATAKA, REPRESENTED BY ITS CHIEF SECRETARY, VIDHANA SOUDHA, DR AMBEDKAR VEEDHI, BANGALORE-560 001.

2. MULAGENI VOKKALU RAKSHANA VEDIKE (R) SILVA COMPLEX, CHURCH GATE, KULASHEKAR, MANGALURU - 575 005, REP. BY ITS PRESIDENT. …RESPONDENTS (BY SRI. B V ACHARYA., AND SRI. B L ACHARYA., SENIOR COUNSELS & SPECIAL COUNSELS A/W SRI. R SRINIVASA GOWDA., AGA FOR R1; SRI.A G HOLLA., SENIOR COUNSEL A/W SRI.K CHANDRNATH ARIGA AND SRI.NANDEESH FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE KARNATAKA CONFERMENT OF OWNERSHIP ON MOOLAGENI OR VOLA MOOLAGENI TENANTS ACT2011IS UNCONSTITIONAL & STRIKE DOWN THE SAME.-. 4 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 IN W.P.No.43928/2012: BETWEEN: MR. GISELLE D MEHTA, W/O D B MEHTA, AGED ABOUT47YEARS, RESIDING AT8903 ACROPOLIS, LIGHT HOUSE HILL, MANGALORE-575 001. …PETITIONER (BY SRI.B N PRAKASH., ADVOCATE) AND:

1. UNION OF INDIA, REPRESENTED BY REVENUE SECRETARY, DEPARTMENT OF REVENUE, C1/41 BAPA NAGAR, NEW DELHI-110 001.

2. STATE OF KARNATAKA, REPRESENTED BY REVENUE SECRETARY, DEPARTMENT OF REVENU, DR AMBEDKAR VIDHI, BANGALORE. ...RESPONDENTS (BY SRI. H SHANTHI BHUSHAN., DSG FOR R1; SRI. B V ACHARYA., AND SRI. B L ACHARYA., SENIOR COUNSELS & SPECIAL COUNSELS A/W SRI. R SRINIVASA GOWDA., AGA FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT TO STRIKE DOWN THE KARNATAKA CONFERMENT OF OWNERSHIP ON MOOLAGENI OR VOLAMOOGLAGENI TENANTS AT, 2011 (VIDE ANNX-A) AS ULTRAVIRUS & UNCONSTITUTIONAL.-. 5 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 IN W.P.No.11966/2013: BETWEEN:

1. SRI ADMAR MUTT, UDUPI REP. BY ITS MATADHIPATHI. SRI VISHWAPRIYA THEERTHA SWAMIJI, 49 YEARS, CAR STREET, UDUPI – 576 101.

2. SRI PALIMARU MUTT, UDUPI, REP. BY ITS HOLINESS, H.H.SRI VIDYADHEESHA THEERTHA SWAMIJI, 52 YEARS, CAR STREET, UDUPI – 576 101.

3. SRI KRISHNAPURA MUTT, UDUPI, REP. BY ITS MATADHIPATHI, SRI VIDYASAGAR THEERA SWAMIJI, 54 YEARS, CAR STREET, UDUPI – 576 101.

4. SRI PEJAVARA ADHOKSHAJA MATHA, UDUPI, REP. BY ITS HOLINESS, SRI H.H. VISHVESHA TIRTHA SWAMIJI, 50 YEARS, CAR STREET, UDUPI – 576 101. 4(A) SRI.VISHWA PRASANNA, THEERTHA SWAMIJI, AGED ABOUT57YEARS, MATTADHIPATHI, R/AT SRI.PEJAVARA ADHIKSHAJA MATTA, CAR STREET, UDUPI – 576 101.

5. SRI PUTTIGE MATHA, UDUPI, REP. BY ITS HOLINESS, SRI SUGUNENDHRA THEERTHA SWAMIJI. 49 YEARS, CAR STREET, UDUPI – 576 101.

6. SRI SHIROOR MUTT, UDUPI, REP. BY ITS HOLINESS, SRI SRI LAXMIVARA THEERTHA SWAMIJI, 48 YEARS, CAR STREET, UDUPI – 576 101. …PETITIONERS (BY SRI.A KESHAVA BHAT., ADVOCATE AND SRI.S K ACHARYA., ADVOCATE) - 6 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 AND: STATE OF KARNATAKA, REP. BY ITS SECRETARY, REVENUE DEPARTMENT, M.S. BUILDING, DR. B.R. AMBEDKAR VEEDHI, BANGALORE560001. …RESPONDENT (BY SRI.B V ACHARYA AND SRI. B L ACHARYA., SENIOR COUNSELS & SPECIAL COUNSELS A/W SRI. R SRINIVASA GOWDA., AGA) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THE KARNATAKA CONFERMENT OF OWNERSHIP ON MULAGENI OR VOLAMULAGENI TENANTS ACT2011 IS UNCONSTITUTIONAL FOR THE REASON THAT THE PROVISIONS OF THE SAID ACT ARE ULTRAVIRES & VIOLATIVE OF FUNDAMENTAL RIGHT OF THE PETITIONERS GUARANTEED UNDER ARTICLE14OF CONSTITUTION OF INDIA. IN W.P.No.23287/2013: BETWEEN: M. GANESH PAI, AGED ABOUT47YEARS, SON OF LATE MANJUNATH PAI, OLD ROAD, BELTHANGADY - 574 214.DK. …PETITIONER (BY *SRI.N RAVINDRANATH KAMATH., SENIOR COUNSEL FOR SMT.VANAJAKSHI., ADVOCATE) AND: THE STATE OF KARNATAKA, REPRESENTED BY ITS CHIEF SECRETARY VIDHANA SOUDHA, DR AMBEDKAR VEEDHI, BANGALORE560001. …RESPONDENT (BY SRI.B V ACHARYA AND SRI. B L ACHARYA., SENIOR COUNSELS & SPECIAL COUNSELS A/W SRI. R SRINIVASA GOWDA., AGA) *Corrected Vide Chamber Order Dated 24.05.2023.-. 7 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 THIS WRIT PETITION IS FILED UNDER ARTICLE226OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE KARNATAKA CONFERMENT OF OWNERSHIP ON MOOLAGEN OR VOLA MOOLAGENI TENANTS ACT, 2011 IS UN- CONSTITUTIONAL AND STRIKE DOWN THE SAME. IN W.P.No.62434/2016: BETWEEN: SRI. PETER J R PRABHU, S/O H P P RODRIGUES, AGED ABOUT72YEARS, NO.78, KALMANE, LAVELLE ROAD, BENGALURU-560 001. (SENIOR CITIZEN BENEFIT NOT CLAIMED) …PETITIONER (BY SRI.ABHINAV RAMANAND A.,ADVOCATE) AND:

1. THE STATE OF KARNATAKA, DEPARTMENT OF REVENUE, VIDHANA SOUDHA, DR AMBEDKAR VEEDHI, BENGALURU-560 001. REPRESENTED BY ITS CHIEF SECRETARY.

2. MRS. TAJIRABBA, MAJOR, W/O NOT KNOWN TO THE PETITIONER, 3. MR. M. SYED, MAJOR, S/O NOT KNOWN TO THE PETITIONER,.

4. MR. MOHD. ISMAIL, MAJOR, S/O NOT KNOWN TO THE PETITIONER, ALL ARE R/AT ATTARANA VILLAGE, MANGALURU HOBLI, MANGALURU DISTRICT. …RESPONDENTS (BY SRI. B V ACHARYA., AND SRI. B L ACHARYA., SENIOR COUNSELS & SPECIAL - 8 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 COUNSELS A/W SRI. R SRINIVASA GOWDA., AGA FOR R1; NOTICE TO R2 TO R4 ARE HELD SUFFICIENT V.C.O DATED1109/2017) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE KARNATAKA CONFERMENT OF OWNERSHIP ON MOOLAGENI OR VOLA MOOLAGENI TENANTS ACT, 2011 NOTIFIED IN THE GAZETTE NOTIFICATION DTD.12.10.2012 ISSUED BY THE RESPONDENT AT ANNE-A IS UN- CONSTITUTIONAL AND STRIKE DOWN THE SAME AND ETC., THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR

ORDER

, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

ORDER

The following observations of Justice Krishna Iyer, in STATE OF KARNATAKA vs. RANGANATHA REDDY1, at paragraph 53, should prelude the framing of this judgment: “…a glance at the raw realities, to abolish which Article 31(2), Article 31C and Articles 38 and 39 have been enacted, is necessary. Poverty has, for ages, been the omnipresent reality of Indian life. Stark inequalities have been chronic and the 'hidden hunger' (to use Myrdal's phrase) of the people have pushed the Freedom Movement forward in the socialistic direction toward a better life. The fasciculus of clauses in the Constitution we have referred to is calculated to prevent the revolution of rising expectations from becoming a revolution of 1 (1977) 4 SCC471- 9 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 rising frustrations. These compulsions must inform legal interpretation…” Petitioners claiming to be owners of tenanted non- agricultural lands, are invoking writ jurisdiction of this court for laying a challenge to the constitutionality of the Karnataka Conferment of Ownership on Mulageni or Volamulageni Tenants Act, 2011 (hereafter ‘impugned Act’), whereby full ownership is sought to be bestowed on the tenants/sub-tenants on payment of compensation to be determined by the Competent Authority on normative basis. After service of notice, the Respondent-State has entered appearance through the learned AGA and the private Respondents are represented through their Advocates on record. Statements of Objections, Addl. Statements of Objections, Replies/Rejoinders & Statements of Facts have been filed voluminously. II. SUBMISSIONS MADE ON BEHALF OF THE PETITIONERS: (a) The State Legislature lacks competence to enact the impugned Act inasmuch as the subject matter thereof is relatable to Entries 6 & 7, List-III of Seventh Schedule to the Constitution of India and that the field is already occupied by the Central Legislations namely the Transfer - 10 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 of Property Act, 1882 & the Registration Act, 1908. Respondents’ reliance on Entry 18, List-II of Seventh Schedule for supporting legislative competence is misplaced since it does not authorize acquisition of property. (b) Presidential Assent purportedly granted under Article 254(2) of the Constitution, is without due application of mind; there was no sufficient material made available to the President whilst securing his Assent. This apart, purportedly the Assent being for a specific purpose, its efficacy would be confined to that purpose only and therefore, does not put the Act under the protective umbrella of Article 31C, more particularly when it is not intended to give effect to Article 39(b) & (c). (c) Although after the 44th Amendment to the Constitution in 1978, the Right to Property is no longer a Fundamental Right in terms of erstwhile Article 19(1)(f), its being recognized as a human right, assumes the character of a Fundamental Right to the extent other Fundamental Rights guaranteed under Articles 19(1) & 21 depend upon the property for their meaningful exercise; under Article 26, the religious denominations too have a Fundamental Right to own property. The impugned Act being in gross violation of these rights, is liable to be struck down. (d) The impugned Act is violative of Article 300A that guarantees Right to Property inasmuch as there are no elements of public purpose/public interest; the doctrine of eminent domain recognized under the said Article is not invocable; further, the compensation normatively determinable under the Act being apparently illusory, renders the legislative action as a confiscatory measure unsustainable on the anvil of Constitution. (e) The impugned Act is grossly discriminatory inasmuch as it singles out only permanent leases for a - 11 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 detrimental treatment leaving out leases of long tenures such as 99 years, 999 years or the like. It is discriminatory also because of its selective application to the districts of Dakshina Kannada & Udupi, when leases of the kind do obtain in all parts of the State if not the country. (f) The impugned Act has been hastily made without ascertaining the relevant factors such as the number of mulagenidars that are intended to be benefited, the number of muldars that would be detrimented, the critical adjustment of financial positions of muldars & mulagenidars, the number of litigations concerning the mulageni and such other things; the legislature has been swayed away by the untrue statistical data and other factors; thus, the impugned Act suffers from a ‘manifest arbitrariness’ and a ‘massive unjustness’ that render it vulnerable for challenge under Article 14 of the Constitution. III. SUBMISSIONS MADE ON BEHALF OF THE RESPONDENTS: (a) The State has legislative competence for making the impugned Act whose subject matter essentially relates to Entry 18, List-II of Seventh Schedule to the Constitution, since admittedly, it concerns non-agricultural lands; the Entries in the legislative lists being only the fields of legislation and not the units of legislative enablement, have to be construed in their widest amplitude and that there is a strong presumption in favour of constitutionality of the plenary legislations. (b) There was letter correspondence between the legislative department of the State and the office of the President of India which eventually resulted into the grant of Assent to the impugned Act inter alia under Article 254(2); the said Assent being in general terms would extend to other protective provisions of the Constitution such as Article 31C; whether the President had applied his - 12 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 mind before according consent cannot be the subject matter of deeper examination in judicial review. (c) Petitioners cannot much bank upon Articles 14 & 19 of the Constitution for assailing the impugned Act once President has Assented thereto; the very purpose of Assent of the President under Article 31C is to insulate the legislation from attack under these Articles, subject to all just exceptions into which argued case of the Petitioners does not fit. (d) After 44th Amendment to the Constitution, the Right to Property is no longer a Fundamental Right although it enjoys constitutional protection under Article 300A; there is no property that is immune from acquisition for public purpose and ordinarily, on payment of compensation. ‘Right to Property is a human right’ does not make much sense qua muldars in the context of the case; mulagenidars too have human rights that need to be protected and the impugned Act intends to do that by giving effect to the Directive Principles enshrined in Clauses (b) & (c) of Article 39. (e) There is a very strong presumption that the legislature understands needs of the people and legislations are made to address such needs; the impugned Act is made after ascertaining all the relevant factors including the statistical data as to muldars & mulagenidars and of the mulageni litigations pending or potential, as broadly indicated in its Premble; Preambular version of a plenary legislation cannot be challenged; ‘manifest arbitrariness’ is not a constitutional ground for invalidating the legislation; even otherwise, such a ground is not made out; no enactment can be struck down by just saying that it is unjust & unreasonable especially when because of Presidential Assent under Article 31C, invocation of Articles 14 & 19 is barred.-. 13 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 (f) The impugned Act is not confiscatory in nature; it is a piece of acquisition law that is recognized under Article 300A; it is made to effectuate a public purpose; it provides for payment of compensation on capitalization method, which is popularly operated in matters like this; by no stretch of imagination, compensation determined at the rate of 500 or 1000 times of the annual rent can be said to be illusory; our Constitution does not require that the compensation should be determined on the basis of market value; muldars are not the absolute owners of the properties in question, the absolute ownership being vested in the State; in extreme cases, there can be acquisition sans compensation too. IV. Having extensively heard learned Advocates appearing for the parties and having perused the Petition Papers, in the light of relevant of the Rulings cited at the Bar, the following questions are broadly framed for consideration:

1. Whether the State has legislative competence to enact the Karnataka Conferment of Ownership on Mulageni or Volamulageni Tenants Act, 2011…?.

2. Whether the Presidential Assent accorded to the Act under Article 254(2) of the Constitution suffers from any infirmity…?.

3. If the Presidential Assent is secured to the impugned Act under Article 254(2) of the Constitution, does it extend to the protective - 14 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 Proviso to Article 31C, as well…?.

4. Whether the impugned Act is discriminatory inasmuch as it does not critically differentiate between the leases in perpetuity and leases of very long tenures such as 99 years or above and therefore falls foul of Article 14…?.

5. Whether the impugned Act is manifestly arbitrary & massively unjust and therefore, is liable to be struck down in the light of Triple Talaq Judgment of Apex Court…?.

6. Whether the impugned Act providing for transfer of property from muldars to mulagenidars/volamulagenidars lacks in public purpose and therefore, is violative of Articles 26 & 300A of the Constitution…?.

7. Whether the compensation payable to the muldars is illusory so as to render the impugned Act void under Article 300A of the Constitution…?. V. AS TO THE CONCEPT OF MULAGENI LEASES: (a) Canara is the coastal region of Karnataka State. It came under British Rule in 1799 after the defeat of Tippu Sultan. In 1863 Canara was divided into two - 15 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 districts: The Northern part was brought under the Bombay Presidency and the South Canara continued under the Madras Presidency. The history of mulageni lands in South Canara dates back to Vijayanagara Dynasty (1336) of the fame of ‘A Forgotten Empire’2 by Robert Sewell. Harihara Raaya’s Minister had published an official manual on the basis of ‘Paraashara Smruti’ with copious description about the assessment of the lands and conversion of grain revenue/rent into money. Normally, the tenant was paying 1/6th of the crop as rent3. At page 118, John Sturrock, Harold A Stuart4 write: “…The ‘muli’ tenure is the characteristic tenure of Canara and the position of the mulavargdar with regard to Government has been definitely settled in the suit Vyakunta Bapuji v. Government of Bombay5…1876. In the judgment … the origin of the term is explained…Mula is derived from the 2 Robert Swell, ‘A Forgotten Empire (Vijayanagar): A Contribution to the History of India’, 1900 3 John Sturrock, Harold A Stuart, ‘South Canara’, Gazetteer of India, Government of Karnataka, 95 – 96, (1894) 4 Id 5 12 Bom HCR App 1 - 16 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 Sanskrit mul, signifying literally a root and figuratively, inter alia, the root of a tree or origin of a family. Hence arises the character of permanence or perpetuity which we find in it when used in composition as in mulavarga and mulvargdar…in mul-gaini…”. Further, at page 119, they write “…during the time of the Mysore government, when the exactions of Hyder and Tippu and their officers were more than many a States could bear, such escheats were very numerous, but in large number of cases, the lands were still cultivated by tenants or ‘genigars’ who were either the old tenants or new occupiers put in by government…”. (b) A Coordinate Bench of this court in S.NARAYANACHARYA vs. KALIYAMARDHANA SRI KRISHNADEVARU OF SRIKRISHNAPUR MUTT6 reproduced an extract from the Standing Orders of the Board of Revenue of Madras as under: “A mulgenidar is a lessee of the registered holder. The lease is called mulgeni and the registered holder’s right muli. A mulgenidar has a perpetual lease and is not removable by the 6 1968 (2) Mys.LJ439- 17 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 registered holder so long as he pays rent regularly to him and does not break any of the conditions of the lease…” While discussing the nature of mulageni, the Apex Court in RAGHURAM RAO vs. ERIC P MATHIAS7 quoted the following observations in VYAKANTRAYA BIN RAMKRISHNAPPA vs. SHIVARAMBHAT BIN NAGABHAI8, ‘…the mulagenis were only tenants, although tenants in perpetuity holding under their superior landlords, the mulgars, whose estate like that of tenants in fee simple in England, would appear to have been the highest estates in the land known to the law in Kanara; and, further, that originally mulageni tenants were not restricted by the terms of their leases from alienation, the practice had grown up – of leasing the land in perpetuity at a fixed rent, coupled with such and other restrictions.’ Similarly, another Coordinate Bench in CHARLES REGO vs. FATHER MULLERS CHARITABLE INSTITUTE9, referring to ‘the law or land tenure in kanara’ by J.H.A. Mascurenhas quotes the following: ‘A mulgenidar is a tenant holding a perpetual lease not removable so long as he pays his rent and so long as he does not violate the stipulations of the lease entailing forfeiture” 7 (2002) 2 SCC6248 ILR (1883) 7 Bom.256 9 ILR2009KAR487- 18 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 (Called out from Wilson’s Glossary Page 354). And further “….A mulgeni tenancy is a tenancy forever at a fixed rent. This species of tenure is as good as a freehold…” and “…The mulgeni tenure is a permenant heritable tenure alienable in some cases by the conditions of the mulgenichit but in all cases perpetual, though subject to forfeiture under certain circumstances.” ”… …Mulgeni tenants have a perpetual and indefeasible right to occupy the land so long as they pay the rent which is sometimes nominal.” In Mulla’s The Transfer of Property Act10, it is stated: ‘In India, a lease may be in perpetuity. In the case of a benami kabulayet or agreement of lease without a term for an annual rent, the Privy Council11 held that it operated either as a permanent lease, or as a lease from year to year and that no intermediate position was open.’ The sum & substance of the above discussion is: a mulageni in the South Canara is a kind of permanent lease or a lease in perpetuity; VI. AS TO NATURE AND SCOPE OF THE IMPUGNED ACT:

10. D.F.Mulla, ‘Mulla: The Transfer of Property Act’, Eleventh Edition, Lexis Nexis, 773 – 74, (2013) 11 AIR1931PC207- 19 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 (a) There was a statute called The Madras Mulgeni Rent Enhancement Act, 1920 passed by the then Madras Legislature. Its objects & reasons being relevant are reproduced here: “Under the terms of MULGENI lease in South Kanara, the land is held in perpetuity at a fixed rent. In most of such lease deeds granted before the introduction of the settlement of 1902, the rent was fixed with reference to the old assessment charged at the settlement of 1819, the lessors not having made any provision for the contingency of increase….

3. It is therefore considered desirable to pass a short enactment providing for the enhancement of mulgeni rents, so as to secure an equitable distribution of the increased assessment imposed by the resettlement.

4. The scheme of the Bill is to enable landlord whose lands were leased on MULGENI tenures before the late settlement to apply to the Collector to enhance the rent payable on the lands by an amount not exceeding the difference between the old and the new assessment. The method proposed for the distribution of the increase is the most equitable that can be arrived at in view of the difficulty of assessing the benefit derived by either party from the land at the time when the MULGENI lease was originally granted.” South Canara being part of Madras Presidency, this Act was applicable to the mulageni leases in the region. After the Reorganization of States, this region came to be - 20 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 comprised in the State of Karnataka. This Act came to be repealed by the State Legislature vide the Karnataka Repealing (Regional Laws) Act of 2011 w.e.f. 16.7.2011, as a prelude to making of the impugned Act. Its Statement of Objects & Reasons reads as under: “In the districts of Dakshnina Kannada and Udupi, some types of mulageni leases in respect of non-agricultural lands mainly house sites are prevailing for various reasons. The mulgar's or intermediary's right to recover possession being a remote possibility, the only right available is to receive annual rent. Mulgenidars or volamulgenidars have already invested considerable amount by putting up structures, and improvements to the property either residential or commercial, but are unable to enjoy the holding, to its full extent, on account of reluctance of mulgar or intermediary to give consent for putting up structures or alienation of interest of mulgenidars or volamulgenidars. Therefore, the prevailing system of mulgeni lease is neither advantageous to mulgenidars or volamulagendiars, nor really beneficial to mulgars or intermediary… Therefore, in public interest, it is proposed to provide for conferment of ownership on mulgenidars or volamulgenidars and for matters connected therewith or incidental thereto. Hence the Bill...” This Bill passed by the State Legislature, having been reserved by the Governor under Article 200 for the - 21 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 consideration of President, has been accordingly assented to under Article 201 of the Constitution on 13.07.2012. (b) The salient features of the impugned Act are: There is no dispute at the Bar as to subject lands being non-agricultural in nature. Objects and Reasons as also the very Preamble to the impugned Act employ the expression ‘mulageni leases in respect of non-agricultural lands, mainly house sites’. Sec. 1(1) gives title to the Act; sub-section (2) gives power to the State Government to specify by Notification the date with effect from which the Act shall come into force. Sub-section (3) provides for the initial application of the Act to the district of Dakshina Kannada & Udupi and authorizes the State Government to extend its application to other parts of the State. Section 2 is the dictionary clause of the Act. Sec. 3 confers full ownership on mulagenidar or volamulagenidar, who is in possession of the leasehold, by the extinguishment of interest of mulgar; the proviso preserves mortgage or charge affecting such property. Sec. 4 requires payment of compensation by the mulagenidar or volamulagenidar.-. 22 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 Sec. 5 prescribes the procedure and Sec. 6 provides for enquiry by the Competent Authority into the claims for ownership. Sec. 7(1) provides for determination of compensation; sub-section (2) provides for compensation at the rate of 500 times of the rental where there is no ‘non-alienation clause’ and 1,000 times of the lease rent where there is such a clause. Sec. 8 provides for the issuance of certificate of ownership. Sec. 9 provides for appeal within thirty days. Sec.10(1) bars jurisdiction of Civil Courts; sub-section (2) provides for transfer of pending suits to the Competent Authority. Sec. 11 enacts removal of difficulties clause. Lastly, Sec. 12(1) is rule making power; sub-section (2) provides for laying procedure. In the case of mulageni, the lessor is called ‘mulgar’ or ‘mulidar’; the lessee is called ‘mulagenidar’; sub-lessee who is in possession, is called ‘volamulagenidar’. These terms along with other such as ‘mulageni lease’, ‘mulageni rent’, ‘Competent Authority’ are defined in Sec. 2 of the Act. The Act is published in the Karnataka Gazette dated 25.7.2012.-. 23 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 VII. AS TO LEGISLATIVE COMPETENCE: (a) Article 1(1) of our Constitution says ’India, that is Bharat, shall be a Union of States’. It means a federation of States, may be with peculiarities of its own. Every federation requires a division of powers between the federal government and the provincial ones. In our system, this is effected by Part XI of the Constitution. Articles 245 to 255 deal with the distribution of legislative powers. As was under the Government of India Act, 1935, there is a three-fold distribution of legislative powers between the Union and the States under this Article in terms of three Legislative Lists in the Seventh Schedule. List-I i.e., Union List includes subjects which the Union shall have exclusive power of legislation including 98 items/subjects. List-II i.e., State List comprises 59 items or Entries over which the State Legislature shall have exclusive power of legislation. List-III i.e., Concurrent List simultaneously gives power of legislation to the Union and the State Legislatures over 52 items; the repugnancy between the Central Law and the State Law is resolved in - 24 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 terms of Article 254. This matter has been succinctly discussed by the Apex Court in UNION OF INDIA vs. RAJENDRA N SHAH12: “A cursory reading of these Articles would show that whereas Parliament may make laws for the whole or any part of the territory of India, the legislation of a State may make laws for the whole or any part of the State. Article 246 then goes on to refer to laws with respect to any of the matters enumerated in 3 Lists contained in the 7th schedule to the Constitution of India. List I contains subjects or topics on which Parliament has exclusive power to make laws; List III in the Concurrent List contains topics on which both Legislatures may make laws; and List II … gives the States exclusive power to make laws for such State or part thereof with respect to any of the matters contained therein. So far as Union territories are concerned, Parliament is given power under Article 246(4) without constraint as to subject matter as it may also legislate with respect to topics covered by List II… In a catena of judgments of this Court, it has been declared that whereas Article 246 contains the power to legislate, the topics of legislation contained in the three Lists are described as ‘fields of legislation’…It is equally well settled that the various entries in the three Lists are not ‘powers’ of legislation, but ‘fields’ of legislation. The power to legislate is given by Article 246 and other Articles of the Constitution…” 12 (2021) SCC OnLine SC474- 25 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 (b) Learned Sr. Advocate Mr.Uday Holla who led the arguments on behalf of the Petitioners questioned legislative competence of the State to make the impugned Act. Placing reliance on INDU BHUSHAN BOSE vs. RAMA SUNDARI DEVI13, he argued that the impugned Act is referable to Entries 6 & 7 of Concurrent List which relate to transfer of property other than agricultural lands, whereas Entry 18 of State List relates to agricultural lands. In the second half of paragraph 13 of the decision, the Apex Court has observed as under: “We have felt considerable doubt whether the power of legislating on relationship between landlord and tenant in respect of house accommodation or buildings would appropriately fall in Entry 21 of List II of the Seventh Schedule to the Government of India Act, 1935, or in the corresponding Entry 18 of List II of the Seventh Schedule to the Constitution. These Entries permit legislation in respect of land and explain the scope by equating it with rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents. It is to be noted that the relation of landlord and tenant is mentioned as being included in land tenures and the expression "land tenures" would not, in our opinion, appropriately cover tenancy of buildings or of house accommodation. That 13 (1969) 2 SCC289- 26 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 expression is only used with reference to relationship between landlord and tenant in respect of vacant lands. In fact, leases in respect of non-agricultural property are dealt with in the Transfer of Property Act and would much more appropriately fall within the scope of Entry 8 of List III in the seventh Schedule to the Government of India Act read with Entry 10 in the same List, or within the scope of Entry 6 of List III in the Seventh Schedule to the Constitution read with Entry 7 in the same List. Leases and all rights governed by leases, including the termination of leases and eviction from property leased, would be covered by the field of transfer of property and contracts relating thereto…” (c) Mr.B.V.Acharya, learned Sr. Advocate appearing for the State and Mr.A.G.Holla, learned Sr. Advocate appearing for the private Respondents per contra contended that the subject matter of impugned Act is not the private transfer of property by way of contract as is contemplated under Sec. 5 of the Transfer of Property Act, 1882 (hereafter ‘1882 Act’) but, it is statutory transfer; Entry 18, List II is widely phrased and therefore, needs to be construed expansively to include transfer of all kinds of land by operation of law. In support of this, they bank upon UNION OF INDIA vs. VALLURI BASAVAIAH - 27 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 CHAUDHARY14. Mr.A.G.Holla submitted that strictly speaking, the subject matter of the Act does not involve transfer of property as is understood in the realm of law of contract. He reasons out this by telling that there is extinction of the interest of muldars and enlargement of that of mulagenidar to the level of full ownership. (d) This court is broadly in agreement with the submissions made on behalf of the Respondents. Reasons for this are concisely stated as under: (i) The Five Judge Bench in INDU BHUSHAN, supra had said something about Entry 18, List II, sans articulation, and rightly so because, that case apparently related to regulation of house accommodation in cantonment area in terms of Entry 3, List I. In the middle of paragraph 13, the Bench specifically clarified the position: ‘…However, it is not necessary for us to express any definite opinion in this case on this point because of our view that the relationship of landlord and tenant in respect of house accommodation situated in cantonment area is clearly covered by the Entries in List I...’ That being the position, a passing observation on which Mr.Uday 14 AIR1979SC1415- 28 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 Holla heavily banked upon cannot be treated as “the law declared” for the realm under Article 141 of the Constitution nor as the ratio decidendi; In view of said clarification, remark of the kind would not partake the character of an obiter dicta, too. This view gains support from what Salmond on Jurisprudence15 at page 27 writes: “…A precedent is not destroyed merely because it was broadly argued, inadequately considered, and fallaciously reasoned. Thus, a rather arbitrary line has to be drawn between total absence of argument on a particular point, which vitiates the precedent, and inadequate argument, which is a ground for impugning the precedent only if it is absolutely binding and indistinguishable. There appears to be an exception if the court in deciding the precedent expressly intimated that the matter had not been fully considered…” (ii) The observations made in VALLURI BASAVAIAH, supra by another Five Judge Bench as to State’s legislative competence under Entry 18, List II renders the question no longer res integra, the same having been answered in so many words in the affirmative; following are the observations at paragraphs 27, 28 & 29:

15. P.J.

Fitzgerald, ‘Salmond on Jurisprudence’, Sweet & Maxwell, Twelfth Edition, 27, (1966) - 29 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 “Next, it is urged that the impugned Act passed by the Parliament was without legislative competence. It is said that the resolution, as passed by the State Legislature, gave authority to Parliament to legislate on a particular subject, i.e., 'ceiling on immovable property', whereas the Parliament contrary to the resolution, passed a law on a different subject i.e., 'ceiling on urban land'...It is, accordingly, urged that the impugned Act, insofar as it provides for ceiling for acquisition of vacant land by the State was not in conformity with the real intendment of the resolution. We are afraid, the contention cannot be accepted. It is not disputed that the subject matter of Entry 18, List II of the Seventh Schedule i.e., 'land' covers 'land and buildings' and would, therefore, necessarily include 'vacant land'. The expression 'urban immovable property' may mean 'land and buildings', or 'buildings' or 'land'. It would take in lands of every description, i.e., agricultural land, urban land or any other kind and it necessarily includes vacant land. …The State Legislatures were, therefore, aware of the position when they passed a resolution authorising the Parliament to make a law in respect of urban immovable property. Their intention was to include the lands within the territorial area of a municipality or other local body of an urban area and also its peripheral area...” (iii) A Division Bench of the Apex Court having examined several Entries including Entry 18, List II in - 30 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 JILUBHAI NANBHAI KHACHAR vs. STATE OF GUJARAT16, at paragraphs 10 & 12 has said as follows: “Land in Entry 18 is not restricted to agricultural land alone but includes non- agricultural land etc. The words “rights in” or “over land” confer very wide power which are not limited by rights between the land holders inter se or the land holder or the State or the land holder or the tenant. It is seen that restriction or extinction of existing interest in the land includes provision for abolition and extinguishment of the rights in or over the land… 12. Land in its widest signification would therefore include not only the surface of the ground, cultivable, uncultivable or waste lands but also everything on or under it. In Jagannath Singh v. State of U.P., AIR (1960) SC1563p. 1568, this Court held that the word "land" is wide enough to include all lands whether agricultural or non-agricultural land…” (iv) In RAM KRISHAN GROVER vs. UNION OF INDIA17, which Mr.A.G.Holla pressed into service a three Judge Bench of the Apex Court inter alia having considered INDU BHUSHAN, has made the following observations at paragraph 27: “A Constitutional Bench judgment of this Court in Indu Bhushan Bose v. Rama Sundari Debi and Another 8 had inter alia examined Entry 3 in List I, Entry 18 in List II and Entries 6, 7 and 13 in List III to observe that the general power of legislating in respect of relationship between landlord and tenant can 16 (1995) 1 SCC59617 (2020) 12 SCC506- 31 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 be traced either under Entry 18 of List II or Entries 6 and 7 of List III. The expression ‘land tenures including the relation of landlord and tenant’ appearing in Entry 18 of List II, it was observed, was used only with reference to the relationship of landlord and tenant in respect of vacant lands and does not cover tenancy of buildings or house accommodation. Nevertheless, the Court did not give a finding in definite terms as the relationship of landlord and tenant in question was in respect of a house accommodation situated in a cantonment area and therefore was covered by Entry 3 of List I which vests exclusive power to make laws for the cantonment areas in the Parliament…” (v) It has been a settled position of law that ordinarily, when a decision of a larger Bench is construed by a smaller Bench of the Apex Court in a particular way, it is not open to any court lower in the hierarchy to construe it in variance thereof. Added, the Division Bench of this court in H.MUNISWAMY GOWDA vs. MANAGEMENT OF KARNATAKA STATE ROAD TRANSPORT CORPORATION18 while stressing the need for Smaller Benches to follow the decisions of larger Benches, reiterated the position that the hierarchical system of courts prevalent in our country mandates upon each lower tier including the High Court to accept loyally the decisions of the highest tiers. That being the position, the plea of per incuriam which Mr.Uday 18 ILR1997KAR509- 32 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 Holla vehemently pressed into service, has to remain miles away. In the light of above discussion, this court answers the first question as to legislative competence of the State to make the impugned Act, in the affirmative. VIII. AS TO INVALIDITY OF ASSENT OF THE PRESIDENT: (a) It was argued on behalf of the Petitioners that Assent of the President is no Assent in its true sense and therefore, the impugned Act is not a legislation; Assent was secured without furnishing necessary & relevant material; due application of mind in the assenting process is not demonstrable by records; the Assent of the President being even otherwise unsustainable, the impugned Act is liable to be struck down in its entirety. In support of this, they pressed into service the doctrine of occupied field. Learned Sr. Advocates Mr.B.V.Acharya and Mr.A.G.Holla controverted the same, adding that the - 33 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 Assent of the President having been secured in general terms, is in lieu of that of the Governor and therefore, there need not be duplication of Assent by the Governor; Assent of the President under Article 254(2) is essentially that of the Central Government which had a dozen letters of the State Government as to the subject matter; the very clarification sought for by the Central Government and furnished by the State Government demonstrates due application of mind; even otherwise, the constitutional functions like the assenting should be presumed to have been done with due application of mind and in accordance with law. In support of these rival contentions, they banked upon certain rulings. (b) Petitioners’ contention as to invalidity of Presidential Assent granted under Article 254(2) of the Constitution is essentially structured on a premise that the subject matter of impugned Act relates to Entries 6 & 7, List III, with which the 1882 Act & the 1908 Act are relatable. However, as already discussed above, the impugned Act is relatable exclusively to Entry 18, List II.-. 34 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 This court finds it difficult to agree with Petitioners’ plea as to there being any repugnancy of the kind because: Firstly, the impugned Act provides for ‘compulsive transfer’ by the competent authority in favour of mulagenidar/volamulagenidar by order to be made under Sec. 3 read with Sec.

8. Thus, not only there is no essential element of choice with the muldars but transfer happens despite their dissent/objection. The 1882 Act, subject to certain exceptions, does not apply to the cases of transfer by operation of law; the very Preamble to the said Act employs the expression ‘law relating to the transfer of property by act of parties’. Sec. 5 of the Act reads: ‘…transfer of property means an act by which a living person conveys property… to one or more other living persons;...” Added, Sec. 2(d) also excludes cases of transfer of property by operation of law vide BHARAT PETROLEUM CORPORATION LIMITED vs. P.KESAVAN19 wherein, it is observed: “As would appear from the preamble of the Transfer of Property Act, the same applies 19 (2004) 9 SCC772- 35 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 only to transfer by act of parties. A transfer by operation of law is not validated or invalidated by anything contained in the Act. A transfer which takes place by operation of law, therefore, need not meet the requirement of the provisions of the Transfer of Property Act or Indian Registration Act.” (c) There is force in the submission of Mr.A.G.Holla that extinguishment of landlords’ interest in the subject property and simultaneous enlargement of lessee’s to full ownership that happen by operation of law, may not amount to ‘transfer’ even in the generic sense of the term. It is more so in view of very distinct scheme of the impugned Act which unlike in several kindred statutes does not provide for vesting of the property in the State first and then conveying it to the intended beneficiaries. Further, what is payable to the landlord is not the price as understood in common parlance but the compensation whose determination has nothing to do with the market value, notwithstanding its normative determination. On the same analogy, the 1908 Act too essentially focuses on the transfer of property by ‘act of parties’ and not by operation of law, regardless of dissent of its owner. This - 36 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 Act arguably has the trappings of fiscal legislation, does not make it any the less adjective law vis-a-vis the 1882 Act. Section 90 of the 1908 Act, inter alia exempts documents executed by the State effecting transfer of property be it realty or chattel. Whatever reasons for treating the subject matter of impugned Act as not relating to transfer of property stricto sensu, as discussed in the immediately preceding sub-paragraph, would hold good for this Act, as well. (d) There is a wealth of material that repels Petitioners’ contention of repugnancy and as to non- application of mind by the President to the material on record: (i) The letter correspondence between legislative department of the State and office of the President reveals that the impugned Act relates to Entry 18, List II [wrongly printed in this Bill as List III].. In fact, the very Bill itself mentions this. When President’s office vide letter dated 18.4.2011, had sought for clarification, the State Govt., vide letter dated 2.5.2011 specifically stated “…the subject matter of the - 37 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 Bill falls under entry 18 of list II of the Seventh Schedule to the Constitution of India which relate to land… no other Articles of Constitution of India are attracted to any of the provisions of the Bill, other than those already mentioned in letter dated 23.3.2011”. This letter of March also states ‘…The subject matter of the Bill falls under entry 18 of list II of the Seventh Schedule to the Constitution of India.’ It further reads ‘Accordingly, His Excellency, the Governor of Karnataka is pleased to reserve the said Bill for the consideration of the President under Article 200 as required by clause (2) of Article 254 and Article 300A of the Constitution of India.’ This was on the assumption of the Government Officials (not of Governor) that clause 3 of the Bill which provides for conferment of ownership was repugnant to the provisions of 1882 Act and clause 8 which provides for issuance of ownership certificate to the mulagenidars/volamulagenidars, was repugnant to the provisions of 1908 Act, even when there was no question of such repugnancy. It is pertinent to note that the Principal Secretary to the Governor on 21.2.2011 only stated “H.E. the Governor has reserved the Bill for the - 38 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 consideration of the President” and nothing was mentioned about Article 254. It is only from the State Government’s letter dated 23.03.2011 that was addressed to the Central Government that the word ‘repugnant’, and Articles 200, 254(2) & 300A are forthcoming. In other eight letters dated 2/7.05.2011, 18.06.2011, 19.07.2011, 26.08.2011, 24.10.2011, 22.11.2011, 23.12.2011 & 19.01.2012, there is not even a whisper as to repugnancy, Article 200, Article 254(2), Article 300A or Article 304(b). (ii) Of the above letters, one dated 7.5.2011, only rectifies Entry 18 of List III as Entry 18 of List II, by way of reply to the clarification sought for by the Central Government vide letter dated 18.04.2011. In view of this, court has to assume that the Governor had reserved the Bill in his discretion under Article 200 and not under Article 254(2), more particularly when no material is placed on record that these letters were prepared after drawing advertence of the office of Governor. Noticeably, each of these letters enlists the offices to which copies thereof were marked/mailed and that the office of Governor is conspicuously absent therein.-. 39 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 (iii) The expression ‘reserves for consideration’ employed in Article 200 and an almost identical term ‘reserved for consideration’ occuring in Article 201 are of significant import. In D.D.BASU’s ‘Shorter Constitution of India’20, it is aptly stated: “Reserved for consideration.-The words ‘reserved for consideration’ indicate that there should be active application of mind by the President to the repugnancy pointed out between the proposed State law and the earlier law made by Parliament and necessity of having such a law, in the facts and circumstances of the matter, which is repugnant to a law enacted by Parliament. The word ‘consideration’ would manifest that after careful thinking over and due to application of mind regarding the necessity of having State law which is repugnant to the law made by Parliament, the President may grant assent. This aspect is further reaffirmed by the use of word ‘assent’ in Art.254(2) which implies knowledge of the President to the repugnancy between the State law and the earlier law made by Parliament on the same subject-matter and the reasons for grant of such assent. The word ‘assent’ would mean in the context as an express agreement of mind to what is proposed by the State. It indicates the affirmative action of the proposal made by the State for having law repugnant to the earlier law made by Parliament. It would amount to accepting or conceding and 20 D.D.Basu, ‘Shorter Constitution Of India’ 15th Edition, Lexis Nexis, 1399-1400, (2019) - 40 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 concurring to the demand made by the State for such law. This cannot be done without consideration of the relevant material.” In KAISAR-I-HIND (P) LTD vs. NATIONAL TEXTILE CORPORATION21 supra, at paragraph 73, the Apex Court echoed the same as under: ‘The assent of the President envisaged under Article 254(2) is neither an idle or empty formality, nor an automatic event, necessitated or to be given for the mere asking, in whatever form or manner and whether specific, vague, general of indefinite - in the terms sought for the claim that once sought and obtained as well as published, a curtain or vell is drawn, to preclude any probe or contention for consideration that what was sought and obtained was not really what should and ought to have been, to claim the protection envisaged under Clause (2) in respect of a particular State law vis-a-vis or with reference to any particular or specified law on the same subject made by the Parliament or an existing law, in force. The repugnancy envisaged under Clause (1) or enabled under Clause (2) to get excepted from under the protective coverage of the assent obtained from the President, is such that there is a legislation or legislative provision(s), covering and operating on the same field or identical subject matter made by both the Union and the State, both of them being competent to enact in respect of the same subject matter or the 21 2002 (8) SCC182- 41 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 legislative field, but the legislation by the Parliament has come to occupy the entire field…’ (iv) The substantive part of Article 200 vests discretion in the Governor to Assent to or reserve the Bill for the consideration of President. Apparently, it is his individual discretion vide M/S HOECHST PHARMACEUTICALS LIMITED vs. STATE OF BIHAR22, unlike in other matters where the Governor acts on the aid and advice of the State Government as discussed in MARU RAM vs. UNION OF INDIA23. This court is not sure if such a discretion avails to the Governor when it comes to his reserving the Bill for the consideration of President under Article 254(2) if the government so requests him on account of repugnancy. The Bill itself having mentioned Entry 18, List II specifically, one can safely assume that the Governor had reserved the same for the consideration of President in his individual discretion under Article 200, and the matter did not travel to the precincts of Article 254(2), State Official’s letter dated 23.3.2011 to the contra, notwithstanding. (e) It is also relevant to state that a Bill passed by the State Legislature may be reserved for consideration of 22 (1983) 4 SCC4523 (1981) 1 SCC107- 42 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 the President inter alia under Article 200, Article 254(2), Article 31A or Article 31C of the Constitution. The process of consideration that takes place at the hands of the President i.e., the Central Government, arguably varies in degrees though not in kind, depending upon the provision under which such Assent has been sought for and granted. If there was no repugnancy question, why at all the Bill was referred by the Governor for the Assent of President, is answered in the immediately preceding paragraph. There is yet another perspective to the same. A Full Bench of Andhra Pradesh High Court in ANDHRA PRADESH STEEL WOOL INDUSTRIES COOPERATIVE SOCIETY LIMITED vs. LABOUR COURT24, at paragraph 15, has observed as under: “15. We do not find any substance in the argument that the very fact that the President's assent was sought and obtained, established beyond doubt that there was repugnancy between the two legislations. There is no provision in the Constitution which lays down that a Bill which has been assented to by the President would be ineffective as an Act if there was no compelling necessity for the Governor to reserve it for the assent of the President. There 24 AIR1987AP182- 43 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 might be a genuine doubt about the applicability of any of the provisions of the Constitution which required the assent of the President to be given to it in order that it might be effective as an Act. If the Governor in exercise of his discretion decided to reserve the Bill in such a situation for consideration of the President to avoid any future complication, that act could not be put forward as a proof of the existence of repugancy between the parliamentary enactment and the Bill which had been reserved for the assent of the President.” (f) Such precaution of securing Presidential Assent was warranted because of arguable confusion owing to some passing observation in INDU BHUSHAN, supra, as to which item of which Legislative List, the subject matter of the impugned Act in essence was falling into. Bifurcation of legislative powers is not a thing of ease since the legislative power is one thing and the subject matter upon which it is exercised is another. Entries in several Legislative Lists have blurred contours. The legislative items at times keep their arms on each other’s shoulders, like row houses leaning on each other. Entry 18 in List II and Entries 6 & 7 in List III may arguably have a common penumbra. In this regard, if conflict arises, it can be - 44 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 likened to the case of boundary dispute; such a dispute is not as to the existence of boundary but only as to where the blurred boundary lines lie. It is not uncommon for the Governors to reserve certain Bills in their discretion under Article 200 for the consideration of President, if there is a genuine doubt as to repugnancy. What the Apex Court observed in HOESCHT PHARMACEUTICALS, supra, at paragraph 86 being instructive is reproduced: “There may also be a Bill passed by the State Legislature where there may be a genuine doubt about the applicability of any of the provisions of the Constitution which require the assent of the President to be given to it in order that it may be effective as an Act. In such a case, it is for the Governor to exercise his discretion and to decide whether he should assent to the Bill or should reserve it for consideration of the President to avoid any future complication. Even if it ultimately turns out that there was no necessity for the Governor to have reserved a Bill for the consideration of the President, still he having done so and obtained the assent of the President, the Act so passed cannot be held to be unconstitutional on the ground of want of proper assent. This aspect of the matter, as the law now stands, is not open to scrutiny by the courts...” - 45 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 In KAISAR-I-HIND, supra, at paragraph 73, it is pertinently observed: “…The repugnancy envisaged under Clause (1) or enabled under Clause (2) to get excepted from under the protective coverage of the assent obtained from the President, is such that there is a legislation or legislative provision(s), covering and operating on the same field or identical subject matter made by both the Union and the State, both of them being competent to enact in respect of the same subject matter or the legislative field, but the legislation by the Parliament has come to occupy the entire field...” Article 254(2) deals with the question of supremacy and not of legislative competence. In respect of conflicting legislation under the Concurrent List, if the State legislation has received the assent of the President, it will prevail over the Central legislation in that State. The article does not provide that the State legislation without the assent of the President is incompetent vide ITC LTD vs. AGRICULTURAL PRODUCE MARKET COMMITTEE25. Merely because a law is assented to by the President, at times by abundant caution, one cannot hastily jump to the conclusion that such a law invariably fits into some or the 25 (2002) 9 SCC232- 46 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 other Entry in List III only. Otherwise, one would be putting the cart before the horse. (g) A perusal of copies of these letters produced by both the sides leaves no manner of doubt that due consideration of the Bill took place at the hands of President followed by his Assent. No case is made out as to the non-application of mind. Allegations of non- application of mind against high constitutional functionaries discharging constitutional functions associated with legislative process, cannot be entertained as a matter of course. One has to keep in mind the constitutional dignity of such functionaries, before taking up contentions of the kind. There may be qualitative difference between Assent of the President to a Bill reserved by the Governor in his discretion under Article 200 and to the one reserved as compulsorily required under the second Proviso to Article 200 or Article 254(2). However, in the context of case, this aspect of the matter does not assume significance, especially when the subject matter of the impugned Act relates to Entry 18, List II and - 47 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 apparently, not to Entries 6 & 7, List III and as a consequence, Article 254(2) stricto sensu was not required to be invoked. The Bill passed by the State Legislature having been reserved by the Governor on 20.2.2011 for the consideration of President under Article 200 of the Constitution, has secured Assent thereto under Article 201 on 30.7.2012. The President wrote “I assent to this Bill”. There was letter correspondence between the State Government and the Central Government that inter alia mentioned Article 254(2), on the assumption that the impugned Act was in derogation of 1882 Act & 1908 Act. As already mentioned above, none of these letters was written with the concurrence of the Governor, nor any copy thereof was marked to his office. (h) Added, the Certificate issued by the State Government through its Secretary, Department of Parliamentary Affairs, as a matter of protocol in the proforma as prescribed in Letter No.19/23/17/JUDL dated 3.8.1972 of the Ministry of Home Affairs of Government of India, mentioned no Article under which Assent of the - 48 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 President was solicited. This is immensely significant. There being no repugnancy, as already observed, this Assent of the President cannot be referred to Article 254(2), stricto sensu. Further, the entire Bill as passed by the State Legislature was sent to the President, is not in dispute. That being the position, it can be safely assumed that the Assent of the President has been given under Article 201 in lieu of Assent of the Governor under Article 200 and resultantly, the Bill became a choate enactment. It is now well settled position of law that a Bill passed by a State Assembly becomes law if the Governor gives his Assent to it or if, having been reserved by the Governor for consideration of the President under Article 200, it is assented to by the President under Article 201. Therefore, Petitioners’ contention that in the absence of any question of repugnancy, the impugned Act being relatable only to Entry 18, List II, Assent of the President secured under Article 254(2) is no Assent and therefore, there is no choate statute, is liable to be rejected.-. 49 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 In view of the above discussion, the second question as to the argued infirmity in the Presidential Assent is answered in the negative. IX. AS TO PROTECTION OF THE IMPUGNED ACT UNDER ARTICLE31 OF THE CONSTITUTION AND CONSEQUENT NON-INVOCABILITY OF ARTICLE14FOR ITS INVALIDATION: (a) Mr.Uday Holla & Mr.Abhinav Ramanand appearing for the Petitioners sought to falter the impugned Act on the grounds of ‘manifest arbitrariness’ in the light of SHAYARA BANO vs. UNION OF INDIA26, and ‘massive unjustness’. Mr.B.V.Acharya & Mr.A.G.Holla per contra repelled the contention and its invocation contending that the impugned Act is made to effectuate the Directive Principles enshrining in Article 39(b) & (c) of the Constitution and therefore, it enjoys protection under proviso to Article 31C, since President has accorded Assent in general terms. They read aloud what the Apex Court said in SANJEEV COKE MANUFACTURING CO. vs. BHARAT COKING COAL LIMITED27 26 (2017) 9 SCC127 AIR1983SC239- 50 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 “When Article 31-C comes in, Article 14 goes out. There is no scope for bringing in Article 14 by a side wind as it were, that is, by equating the rule of equality before the law of Article 14 with the broad egalitarianism of Article 39(b) or by treating the principle of Article 14, as included in the principle of Article 39(b)...” They also quoted what TINSUKHIA ELECTRIC SUPPLY CO. LTD VS STATE OF ASSAM28 observed: “…Articles 31-A and 31-C were significant Constitutional milestones in the harnessing and socialisation of the concept of the right to property which, in its laissez-faire trappings, became an unruly horse. Article 31-C in effect and substance is to urban property what Article 31-A is to agricultural-property...” Mr.Uday Holla countered them by saying that SANJEEV COKE to the extent of being in variance with MINERVA MILLS, is per incuriam and therefore, impugned Act cannot seek refuge under its umbrella. He also argued that the added provisions of Article 31C vide 42nd Amendment Act, 1976 which extended protection to the statutes made to give effect to any of the Directive Principles in Part IV having been struck down in MINERVA MILLS, the original 28 (1989) 3 SCC709- 51 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 position therein is restored and that does not extend protection to the impugned Act under Article 31C. (b) A question arises as to whether the said Assent of the President can be construed as the one inter alia referable to the proviso to Article 31C so that the impugned Act would get insulation from attack on the grounds that traditionally fall under Article 14 of the Constitution. The significance of Assent and the sanctity of assenting process have been discussed by the Apex Court in KAISAR-I-HIND, supra, at paragraph 77, as under: “The assent of the President or the Governor, as the case may be, is considered to be part of the legislative process only for the limited purpose that the legislative process is incomplete without them for enacting a law and in the absence of the assent the Bill passed could not be considered to be an Act or a piece of legislation, effective and enforceable and not to extend the immunity in respect of procedural formalities to be observed inside the respective houses and certification by the presiding officer concerned of their due compliance, to areas or acts outside the besides those formalities. The powers actually exercised by the President, at any rate under Articles 31A, 31C, 254(2) and 304(b) is a special constituent power vested with the Head of the Union, as the protector and defender of the Constitution and safety valve to safeguard the Fundamental Right of - 52 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 citizens and Federal structure of the country's policy as adopted in the Constitution. A genuine, real and effective consideration would depend upon specific and sufficient information being provided to him inviting, at any rate, his attention to the Central law with which the State law is considered or apprehended to be repugnant, and in the absence of any effort or exercise shown to have been undertaken, when questioned before courts, the State law cannot be permitted or allowed to have predominance or overriding effect over that Central enactment of the Parliament to which no specific reference of the President at all has been invited to. This, in my view, is a must and an essential requirement to be satisfied; in the absence of which the 'consideration' claimed would be one in vacuum and really oblivious to the hoard of Legislations falling under the Concurrent List in force in the country and enacted by the Parliament. To uphold as valid the claim for any such blanket assent or all round predominance over any and every such law - whether brought to the notice of the President or not, would amount to legitimization of what was not even in the contemplation or consideration on the basis of some assumed 'consideration'...” (c) There is absolutely no material placed on record from the side of Respondents to indicate that the consideration of the Bill at the hands of the President was sought for under the Proviso to Article 31C or that the President having otherwise adverted to that aspect of the matter has accorded the Assent. In none of the letters - 53 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 (i.e., nine from the State Government & one from the Central Government) that constituted the official correspondence, there is any whisper as to Article 31C nor to Article 39(b) & (c). The expression ‘general term’ occurring in RAJIV SARIN vs. STATE OF UTTARAKHAND29 cannot be construed out of the context. It has to be understood keeping in view the broad theme of the said decision. That being the position, the contention that the subject Assent of the President arguably granted in general terms could be effective for all purposes including the Proviso to Article 31C and therefore, the impugned Act is insulated from challenge on the grounds that normally fall under Article 14, cannot be countenanced. An argument to the contrary would undermine the significance of the Assent and its processual sanctity which the Apex Court has emphasized several times. Courts have to keep in mind that the provisions of the Constitution cannot be construed as those of a Cattle Trespass Act. 29 AIR2011SC3081- 54 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 (d) The other contention of Mr.Uday Holla as to SANJEEV COKE arguably being in variance with MINERVA MILLS, is per incuriam and therefore, the impugned Act does not get any protection in terms of Proviso to Article 31C, does not merit examination, because: Firstly the impugned Act is made to give effect to the Directive Principles in Articles 39(b) & (c) which figured in the original text of Article 31C and continue till date; if that be so, one need not see what happened to 42nd Amendment of 1976 in MINERVA MILLS. Secondly, whether such a protection extends to the laws made to give effect to all other Directive Principles contained in Part IV is being examined by a Bench of Nine Judges in PROPERTY OWNERS ASSOCIATION vs. STATE OF MAHARASHTRA30. Thirdly, as already discussed above, no Assent of the President is secured to the impugned Act in terms of proviso to Article 31C. Fourthly, SANJEEV COKE, supra, having adverted to MINERVA MILLS, extends protection to the statutes that are made to give effect to any of the 30 (2013) 7 SCC522- 55 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 Directive Principles in Part IV of the Constitution, of course subject to Assent under the Proviso to Article 31C. Even in the latest decision in UNION OF INDIA vs. TARSEEM SINGH31, the view of SANJEEV COKE is not diluted. D.D.BASU, supra, at page 539, writes: “5. But the decision of the majority in the Minerva Mills case to the effect that the 1976 amendment, extending the shield of Art. 31C to all the Directives included in Part IV was unconstitutional, so that Art. 31C is confined to its pre-1976 position, namely, protecting only laws implementing Art. 39(b)-(c), has not yet been overruled by any larger Bench.” In view of the above, the third question as to Assent of the President being in general terms can be construed as the one given under Proviso to Article 31C and therefore, challenge to the impugned Act under Article 14 does not lie, is answered in the negative. X. AS TO IMPUGNED ACT DOING RANK DISCRIMINATION & THEREFORE, FALLING FOUL OF ARTICLE14OF THE CONSTITUTION: (a) Learned Sr. Advocate Mr.Uday Holla vehemently argued that the impugned Act suffers from the vice of a blatant discrimination and therefore, the same is liable to be struck down under Article 14. He submitted 31 (2019) 9 SCC304- 56 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 that all leases of immovable property constitute one homogenous class and therefore, singling out only leases in perpetuity for a detrimental treatment offends the rule of reasonable classification. He highlighted that when leases of 99 years and 999 years are permissible and do obtain all over the country, there is no logic in putting an end to mulagenies, artificially treating them as a class apart. M/s B.V.Acharya & A.G.Holla appearing for the Respondents per contra contended that the impugned Act having been made to give effect to the Directive Principle specified in clauses (b) & (c) of Article 39, the State has done the classification of the leases on normative basis in its legislative wisdom and therefore, it cannot be struck down as being discriminatory. Mr.Uday Holla disputed the ‘argument of nexus’ between the Act & Article 39 contending that there is not even a whisper in the text of impugned Act about this Article. Mr.Acharya rightly retorted that there is no such requirement in the Legislative Practice and that even otherwise, nexus can be ascertained from the text & context of such a statute.-. 57 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 (b) Article 14 of the Constitution which guarantees equal protection of the laws and equality before the law does not prohibit reasonable classification founded on the basis of intelligible differentia which bears a rational nexus with the object sought to be achieved by the legislation. When a statute is challenged as being violative of Article 14, it is necessary in the first place to ascertain its underlying policy and the object which it seeks to achieve; thereafter, the Court has to apply the dual test namely, whether the classification is rational and based upon an intelligible differentia which distinguished the persons or things that are grouped together from others left out and whether the basis of differentiation has rational nexus with its avowed policy & objects. Added, Article 14 does not insist that the legislative classification should be scientifically perfect or logically complete, since the legislature & the judiciary are not doing their exercise in the realm of theoretical physics. The legislature in its wisdom has chosen mulagenidars/volamulagenidars for a protective discrimination keeping in view the enormous - 58 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 difficulty being faced by them despite holding the subject properties on the basis of lease in perpetuity. All other leases are left out by the legislature in its wisdom and court cannot falter the same, when these lessees constitute a separate class. Which group of people being distinct requires preferential or protective discrimination, again is a matter falling within the domain of legislature which understands the difficulty of its people and knows how it should be tackled. The Apex Court in RAM KRISHNA DALMIA vs. JUSTICE S.R.TENDOLKAR32 observed as under: “…that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest…” 32 (1959) SCR279- 59 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 An enactment cannot be struck down on the ground that Court thinks it to be unwise or unwarranted. Legislatures being composed of the elected representatives of the people are supposed to know what is good for the citizenry. (c) The impugned Act conferring ownership on the mulagenidars/volamulagenidars is to non-agricultural property what the agrarian laws which confer occupancy on the tillers of the land or abolish zamindari is to the agricultural land, the difference in modalities of accomplishment of their objects not being relevant. Sub- section (4) of section 5 of the impugned Act provides for the conferment of ownership on mulagenidar/volamulagenidar even when his application in Form 7 filed under Section 48A of the Karnataka Land Reforms Act, 1961 has been rejected by the Land Tribunal on the ground that the land is not agricultural. Mr.Uday Holla’s reliance on the Division Bench decision of Kerala High Court in RATNA BAI vs. STATE OF KERALA33 does not 33 ILR2004(1) KER124- 60 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 come to his aid: Firstly, it did not relate to ‘estate’ as defined under Article 31A and therefore, did not enjoy its protection; secondly, it simply intended to give property of one to another without any real compensation; thirdly, it was apparently arbitrary in taking possession of the property of poor persons that too with a clock running reverse by three decades. That is not the case here and thus, the fact matrix of the case at hands is miles away. It hardly needs to be stated that a decision is an authority for a proposition that it actually lays down in a given fact matrix and not for all that which logically follows from what has been laid down vide QUINN vs. LEATHEM34. The said decision is affirmed by the Apex Court in S.L.P.No.2018-2042/2005 dismissed on 28.2.2005, is of no consequence. The aspects of compensation are dealt with separately infra wherein, Petitioners’ argument as to compensation being illusory, is repelled. 34 (1901) AC495 - 61 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 (d) The objects & reasons specifically mention why the Act is made and what it seeks to achieve. The Preambular text of the Act is as under: “Whereas some types of mulageni leases in respect of non-agricultural lands mainly house sites are mostly prevailing in Dakshina Kannada and Udupi districts; Whereas, for various reasons the mulgar's or intermediary's right to recover possession being a remote possibility, the only right available is to receive annual rent; Whereas, mulgenidars or volamulgenidars have already invested considerable amount by putting up structures, and improvements to the property either residential or commercial, but are unable to enjoy the holding to its full extent, on account of reluctance of mulgar or intermediary to give consent for putting up structures or alienation of interest of mulgenidars or volamulgenidars; Whereas, the prevailing system of mulgeni lease is neither advantageous to mulgenidars or volamulagendiars nor really beneficial to mulgars or intermediary, but on the other hand differences between the two have given rise to speculative transactions. Whereas, conferment of ownership on mulagenidars or volamulagenidars on their paying certain amount to mulgars or intermediary in respect of conferment of their rights and interests in the holdings will put an end to multiplicity of litigation and eliminate scope for vested interests to indulge in speculative transactions and thus benefit mulgars, intermediary, mulagenidars or volamulgenidars; And whereas, for the purposes hereinbefore stated, it is expedient in the public interest to provide for conferment of ownership on mulgenidars and volamulgenidars…” - 62 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 (e) The vehement submission of Mr.Uday Holla that the very contents of Preamble are not true, and that the legislature without any basis has assumed certain things on the basis of which the impugned Act is enacted, is a bit difficult to countenance. In English Legislative Practice, ordinarily the Preamble to the legislation is not quoted in the Parliament and therefore, is not treated as part of the statute unlike in our Legislative Practice. A Preamble unless inserted to a statute retrospectively is a key to open the mind of a legislature. True it is that it has some ideal elements and something in it may not be true too. ‘A Preamble cannot be used to control or qualify precise & unambiguous language of the enactment’ said Apex Court in TRIBUVAN PRAKASH NAYYAR vs. UNION OF INDIA35. The repeal of the preamble simplicitor will not affect the construction of the statute36. As the House of Lords in A.G35(1969) 3 SCC9936 M.J.

Goodman, D. Greenberg, ‘Craies on Statute Law: A Practitioner's Guide to the Nature, Process, Effect and Interpretation of Legislation’, 8th Edition, Sweet & Maxwell, 206 – 207, (2004) - 63 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 vs. H.R.H PRINCE ERNEST AUGUSTUS37 observed, there may be no exact correspondence between Preamble and the enactment. No judicial authority nor any juristic opinion is cited at the Bar to the effect that a statute can be struck down on the ground that what is stated in its Preamble is demonstrably untrue or runs counter to its avowed policy content. Mr.A.G.Holla is right in drawing attention of the court to the observations in SARDAN INDER SINGH vs. STATE OF RAJASTHAN38 wherein, at latter part of paragraph 13, it is observed: “...We should add that the petitioners sought to dispute the correctness of the recitals in the preamble. This they clearly cannot do vide observations of Holmes J.

in Block v. Hirsh [1920]. 256 U.S. 135...” (f) Mr.Uday Holla’s contention that mulageni leases i.e., leases in perpetuity, do obtain all over the country in general and in several regions of the State in particular, is supported by a catena of decisions cited by him namely:

37. (1957) 1 All ER4938 AIR1957SC510- 64 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 (i) mulageni in Sirsi town39; (ii) permanent tenancy in old Mysore area40; (iii) grant of permanent lease in Delhi Municipal area41; (iv) permanent lease of Connaught place on perpetual basis42; and (v) perpetual lease of ‘Srirangam Mutt’ properties43. However, his further contention that the impugned Act detrimentally singling out the lessors of mulageni lands in South Canara region is geographically discriminatory, is bit difficult to countenance. The impugned Act though initially made applicable to Mangalore & Udupi Districts, can be extended by the government vide notification, to other parts of the State. The enabling provision in this regard i.e., sub-section (3) of section 1 reads: “The Provisions of this Act initially apply to the Districts of Dakshina Kannada and Udupi. The State Government may, by notification, extend the application of the provisions of the Act to other parts of the State.” 39 AIR1973MYS20740 (1986) 2 KAR.LJ14641 AIR1983DEL37642 1998 DEL.LT15243 AIR2005MAD129- 65 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 The impugned Act can be termed as a ‘Conditional Legislation’ notion of which is not alien to jurisprudence, world over. The Australian High Court speaking through O’Connor J., in BAXTER vs. A.H.WAY44 observed as under: “Legislation from the very earliest times, and particularly in modern times has taken the form of conditional legislation leaving it to some specified authority to determine the circumstances in which the law shall be applied, or to what its operation shall be extended, or the particular class of persons or goods to which it shall be applied.” This view of the Foreign Court has been approved by our Apex Court in EDWARD MILLS COMPANY vs. STATE OF AJMER45. Hon’ble Justice Alok Aradhe who edited G.P.Singh’s PRINCIPLES OF STATUTORY INTERPRETATION46, having referred to IN RE DELHI LAWS ACT47 eruditely states as under: “A distinction is said to exist between what is called conditional legislation and delegated legislation proper. In case of conditional legislation, the legislation is complete in itself 44 (1909) 8 CLR62645 (1955) 1 SCR73546 G.P. Singh, ‘Principles of Statutory Interpretation’, 15th Edition, Lexis Nexis, 12.2.2,738-38, (2021) 47 AIR1951SC332- 66 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 but its operation is made to depend on fulfillment of certain conditions and what is delegated to an outside authority, is the power to determine according to its own judgment whether or not those conditions are fulfilled… The distinction between the two exists in this that whereas conditional legislation contains no element of delegation of legislative power and is, therefore, not open to attack on the ground of excessive delegation, delegated legislation proper does confer some legislative power on some outside authority and is therefore open to attack on the ground of excessive delegation…” (g) All the above having been said, what the 46th Law Commission Report had said about the introduction of Article 31C assumes relevance: “"By introducing this clause (31-C), Parliament is taking the first major and significant step towards implementing two of the Directive Principles enshrined in clause (b) and (c) of Article 39 in Part IV of the Constitution, and , in that sense, the clause under consideration can be appropriately described as historic. After it is adopted, Parliament will have heralded a new era in the pursuit of the goal placed before the nation by the Constitution to establish social and economic justice in this country… In the Directive Principles, however, one finds an even clearer statement of the social revolution. They aim at making the Indian masses free in the positive sense, free from the passivity engendered by- centuries of coercion by society and by nature, free from the abject physical conditions that had prevented them from fulfilling their best selves."

- 67 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 [This version of the Law Commission finds imprimatur in RANGANATHA REDDY, supra].. In KESAVANANDA BHARATI vs. STATE OF KERALA48, at pages 502-503, it is observed:

"Part IV of the Constitution is designed to bring about the social and economic revolution that remained to be fulfilled after independence. The aim of the Constitution is not to guarantee certain liberties to only a few of the citizens but for all… To ignore Part IV is to ignore the substance provided for in the Constitution, the hopes held out to the Nation and the very ideals on which our Constitution is built. Without faithfully implementing the Directive Principles, it is not possible to achieve the Welfare State contemplated by the Constitution, a society like ours steeped in poverty and ignorance satisfying the minimum economic needs of every citizen of this country. Any Government which fails to fulfil the pledge taken under the Constitution cannot be said to have been faithful to the Constitution and to its commitments…” That being the position, while adjudging vires of a socio- welfare legislation like the one at hands, the fact that it has been made to give effect to one or the other Constitutional Directives assumes some significance, even 48 (1973) 4 SCC225In view of the above, the fourth question as to the impugned act being discriminatory, is liable to be voided under Article 14, is answered in the negative.-. 68 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 in the absence of Presidential Assent under the Proviso to Article 31C. XI. AS TO IMPUGNED ACT BEING MANIFESTLY ARBITRARY & MASSIVELY UNJUST: (a) Mr.Uday Holla vehemently argued that the impugned Act suffers from a ‘manifest arbitrariness’ & ‘massive unjustness’ and therefore, is liable to be struck down in terms of SHAYARA BANO, supra. He contended that without ascertaining the socio-economic status of muldars & mulagenidars, the legislature has brought about the impugned Act, being swayed away by certain statistics furnished by the officials despite their apparent falsity. He presses into service the ‘doctrine of proportionality’ contending that the arguable difficulties of the mulagenidars would have been trimmed off by making suitable provisions in the impugned Act itself like the one that voids the restraint on alienation in absoluto.-. 69 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 Employing an old English adage from John Wycliffe’s Select English Works (1380), he said, the Act provides for ‘robbing Peter to pay Paul’. He also highlighted about frugality of the compensation payable under the Act which aspect will be dealt with in due course under a separate heading. Lastly, he said that in the legislative history of the State, there is no parallel to the Act in question. Learned Sr. Advocates Mr.B.V.Acharya & A.G.Holla per contra contended to the contrary and thereby, sought to justify the impugned Act. They reiterated that Apex Court decisions which broke new ground namely ‘manifest arbitrariness’ for invalidation of statutes are simply per incuriam, being contrary to half a decade of constitutional jurisprudence. (b) It has been a well settled position of law that arbitrariness, being opposed to reasonableness, is an antithesis to law. There cannot, however, be any exact definition of arbitrariness neither can there be any strait- jacket formula evolved therefor, since the same is dependent on the varying facts and circumstances of each - 70 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 case. Arbitrary action is described as one that is irrational and not based on sound reason or as one that is unreasonable. Any decision, be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision and violative of the mandate of Art. 14 of the Constitution. Actions of the State or its instrumentality uninformed by reason, may amount to being arbitrary and be liable to be questioned. Arbitrariness is contrary to rule of law, equity, fair play and justice. In SHAYARA BANO, the Apex Court delineated the idea of ‘manifest arbitrariness’ with the following observations: “Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14”. Legislative action that is too disproportionate or excessive, may suffer invalidation on the ground of ‘manifest - 71 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 arbitrariness’ under Article 14. Judge Aharon Barak of Supreme Court of Israel in his book ‘PROPORTIONALITY: CONSTITUTIONAL RIGHTS AND THEIR LIMITATIONS’, succinctly delineates the doctrine as: “…It requires that a rights-limiting measure should be pursuing a proper purpose, through means that are suitable and necessary for achieving that purpose and that there is a proper balance between the importance of achieving that purpose and the harm caused by limiting the right…”. A Five Judge Bench of the Apex Court in SHAYARA BANO, supra, reiterated that ‘manifest arbitrariness’ avails as a ground for invalidation of plenary legislation. That being the position, this court rejects the contention that this decision and other, are per incuriam. It is not that what the Apex Court said is for the first time and in a sporadic way and therefore, this decision lacks precedential value. Contra contention of Mr.B.V.Acharya & Mr.A.G.Holla cannot be accepted without offending the text of Article 141 of the Constitution and the rudiments of law of precedent as discussed in H.MUNISWAMY GOWDA, supra.-. 72 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 (c) Manifest arbitrariness availing as a ground for invalidation of a legislation is one thing and substantiation of such a ground is another. Contention of the kind needs to be substantiated by cogent material with which the impugned Act is woven or by demonstrating that it brings about massively unjust result which no legislature in any circumstances would have intended, in the constitutional scheme. Despite strenuous submission, counsel for the Petitioners could not make out such a case, to say the least. If tenants of agricultural lands can be conferred with permanent occupancy/ownership under the agrarian legislations like Sec. 48A of the Karnataka Land Reforms Act, 1961, this court sees no reason or rhyme as to why something of that kind cannot be done in respect of urban/housing lands, so that the suffering tenants in actual possession thereof get emancipation from the clutches of landlords/lessors. Therefore, the argument of ‘no parallel’ does not merit acceptance. Even otherwise, plenary power of legislation does not admit an argument of the kind inasmuch as it is always open to the legislature - 73 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 to enact whatever measure it wants to and that the exercise of such power is not controlled by availability or non-availability of precedent or form of the kind. That is how the legislative power conferred by the Constitution becomes plenary in nature and restrictions de hors constitutional jurisprudence are spurned in any civilized jurisdictions. No ruling nor any authority to the contrary is cited from the side of Petitioners. This Act is made apparently to give effect to the Directive Principles enshrined in Article 39(b) & (c), as widely interpreted by the Apex Court in decisions that galore. What Krishna Iyer J., eruditely said in RANGANATHA REDDY, supra, is profitably reproduced: “…The social philosophy of the Constitution shapes creative judicial vision and orientation. Our nation has, as its dynamic doctrine,, economic democracy sans which political democracy is chimerical. We say so because our Constitution, in Parts III and IV and elsewhere, ensouls such a value system and the debate in this case puts precisely this soul in peril… Our thesis is that the dialectics of social justice should not be missed if the synthesis of Part III and Part IV is to influence State action and court pronouncements. Constitutional problems cannot be studied in a socio-economic vacuum, - 74 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 since socio-cultural changes are the source of the new values, and sloughing off old legal thought is part of the process of the new equity-loaded legality… The credal essence of the Constitution consists in its Preamble, Articles 38, 39 (b) and (c), 31 and the bunch of Articles 31A, 31B and 31C... Our emphasis is on abandoning formal legalistics or sterile logomachy in assessing the vires of statutes regulating vital economic areas, and adopting instead a dynamic,, goal-based approach to problems of constitutionality. It is right that the rule of law enshrined in our Constitution must and does reckon with the roaring current of change which shifts our social values and shrivels our feudal roots, invades our lives and fashions our destiny… So we have to view the impugned provisions from the vantage point of socio-legal perception.” (d) The impugned Act intends to relieve the tenants in actual possession by excluding all the intermediaries from any interference whatsoever, so that they become absolute owners of the subject properties and therefore, are no longer subject to any form of feudalistic shackles at the hands of ‘landlords’. It hardly needs to be stated that full ownership enables persons make optimum use of properties. When nature of holding of a property, agricultural or non-agricultural, undergoes statutory change as a matter of State Policy, there will be some - 75 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 victimization which is inevitable. That is the price the victims, if any, pay for being members of a civilized society, that is opening up to the new constitutional order. After all, it is not a case of acquisition sans compensation, to brand the impugned measure as being massively unjust. The Apex Court in JILU BHAI, supra which Petitioners too banked upon observed at paragraph 47 as under: “It is accordingly clear that in a welfare State envisioned in the directive principles of State policy, the basic perquisites are that everyone is entitled to minimum material well being, such as food, clothing, and decent housing. Expanding living standard are possible with the existing or expanding physical resources and scientific knowledge etc., and the State has right and duty to act when private initiative fails. In a democratic society, every individual needs legal protection for the beneficial enjoyment of what he has discovered and appropriated; has created by his own labour (in wider sense); and what he has acquired under the existing social and economic order subject to law and order. Equally welfare consists in adjusting individual interests with social interest by the aid of law as social engineering, which would mean public restraints on property designed to mitigate the privileges which property offers in enjoyment of the things that life has to offer. Restraints on the power to use the property as a delegated power - 76 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 of command is means as of quasi- governmental private control over the major assets of a nation. Properly, thereby, is subject to regulation. The directive principles enjoin the State to reorganise the economic system by law or administrative means and the Fundamental rights are means to that end to make right to life meaningful, equality of opportunity and of status and dignity of person a reality…”. Mr.A.G.Holla appearing for the private Respondents is right in telling the court that the legislative measure in question would bolster the psyche of mulagenidars/volamulagenidars and even such factors lend legitimacy to legislative the actions of the State. In support of this submission, he is more than justified in banking upon STATE OF BIHAR vs. SIR KAMESHWAR SINGH wherein, at concluding portion of paragraph 208, it is observed as under: “In my opinion, legislation which aims at elevating the status of tenants by conferring upon them the bhumidari rights to which status the big zamindars have also been leveled down cannot be said as wanting in public purposes in a democratic State. It aims at destroying the inferiority complex in a large number of citizens of the State and giving them a status of equality with their former lords and prevents the accumulation of big tracts of land in the - 77 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 hands of a few individuals which is contrary to the expressed intentions of the Constitution…” Mr.Uday Holla’s reliance on MANISH KUMAR vs. UNION OF INDIA49 instead of supporting his case, adumbrates that of his opponents. The Apex Court, in the said case reiterated the rule of non-invocability of malice or capriciousness, qua legislature. It also observed at paragraph 211 as under: “…It is well settled that a legislature which has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power of making special laws to attain particulars objects; and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause…” (e) The vehement submission of Mr.Uday Holla that the tenants in possession of the property could have been relieved by making restrictive conditions of lease void, appears attractive at a first blush. However, a deeper examination thereof shows its demerits. Firstly, by what measure difficulty of citizenry should be diminished is a 49 (2021) 5 SCC1- 78 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 matter of legislative policy and judiciary as of necessity has to show due deference to such decisions consistent with the ‘doctrine of separation of powers’ which is recognized as a Basic Feature of the Constitution vide INDIRA NEHRU GANDHI vs. RAJ NARAIN50. Secondly, this court is not sure if by voiding the restrictive conditions of non-alienation or the like, the interference of the landlord would be minimized. Measures of the kind are taken in the accumulated wisdom of the legislatures and that cannot be substituted by the views of Judges. Accepting Petitioners’ argument of the kind, would virtually amount to judiciary evolving a policy much in variance with the one enacted by the legislature in its domain. It hardly needs to be stated that power of the State to change its policy from time to time consistent with changing circumstances cannot be subjected to judicial review even when the changed policy deviated from pronouncements of the Apex Court vide STATE OF PUNJAB vs. LUBHAYA BAGGA51. 50 AIR1975SC229951 (1998) 4 SCC117- 79 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 (f) Petitioners’ contention as to impugned Act being massively unjust, is not substantiated. It is not that the impugned Act snatches away their possession & enjoyment and put the property at the hands of mulagenidars/volamulagenidars. It is tritely said: ‘possession, is nine points of law’52. The lessees of mulagenies have been possessing and enjoying the properties since decades and many of them have put up structures by investing money. Whatever development has been made, does not ipso facto belong to muldars, who will be paid compensation for only the land lost. After all, law shuns concentration of material resources at the hands of few. If distribution of these resources amongst the needy is aimed at, the holders cannot complain especially when the compensation is being paid. The impugned legislative measure is fair both in substance and procedure. The contention of the kind as advanced by the Petitioners can be answered also by adverting to what an 52 G.W.Keeton, ‘The Elementary Principles of Jurisprudence’ 2nd Edition, Chapter XV, (1949) - 80 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 acclaimed American jurist T.M.Cooley53 [1824-1898]. wrote. The same is profitably reproduced: “The rule of law upon this subject appears to be, that, except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the State, unless those rights are secured by some constitutional provision which comes within the judicial cognizance. The remedy for unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the law-making power…” I imn pv ui ge nw e do f t Ah ce t ab bo ev ine g, th me af nif it fh e sq tlu ye st aio rn b, it ra as r yt o at nh de massively unjust, is liable to be struck down as violating Article 14 of the Constitution, is answered in the negative. XII. AS TO IMPUGNED ACT PROVIDING FOR ACQUISITION OF PROPERTY SANS PUBLIC PURPOSE AND THEREFORE VIOLATIVE OF ARTICLE300 OF THE CONSTITUTION:

53. Thomas M. Cooley, ‘A Treatise on the Constitutional Limitations’, 168-169 (1868) - 81 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 (a) Mr.Uday Holla, Mr.Keshav Bhat, Mr.Abhinav Ramanand & *Mr.N Ravindranath Kamath, learned Sr. Advocates vehemently argued that notwithstanding relegation of right to property from Part III to Part XII, it enjoys the constitutional guarantee as a human right/basic right vide STATE OF HARYANA vs. MUKESH KUMAR54; public purpose & just compensation though not textually prescribed, they are indispensible components of valid acquisition of property under Article 300A; that being the position, by a stroke of legislative pen, the subject properties would not have been snatched away from the muldars and handed to mulagenidars by paying illusory compensation that is determinable on irrelevant principles, when over the decades, rupee value has slided abysmally low. Mr.Uday Holla argued that the official number of mulagenidars being less than muldars, the pleaded public purpose is liable to be brushed aside; viewed from any angle, the impugned Act cannot be sustained on the touchstone of doctrine of Basic Structure. Learned Sr. Advocates 54 (2011) 10 SCC404*Corrected Vide Chamber Order dated 24.05.2023.-. 82 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 Mr.B.V.Acharya & Mr.A.G.Holla controverted these submissions contending that the Act is made for public purpose; the compensation payable thereunder is determinable & payable thereunder, is normative & reasonable; Petitioners argument as to sliding rupee value is irrelevant; in a social welfare legislation, acquisition of private property for public purpose even sans payment of any compensation, is permissible vide K.T.PLANTATION PVT. LTD vs. STATE OF KARNATAKA55; strictly speaking, Article 300A is not invocable since impugned Act is not a case of acquisition of property. They too cited certain decisions. (b) The terms ‘public purpose’ & ‘public interest’ that are at times interchangeably employed in legislative instruments and executive decisions do not have fixed contours. The very concept is of variable import. The Apex Court in KAMESHWAR SINGH, supra, paragraphs 208 & 210: “…The expression ‘public purpose’ is not capable of a precise definition and has not a rigid 55 (2011) 9 SCC1- 83 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 meaning. It can only be defined by a process of judicial inclusion and exclusion. In other words, the definition of the expression is elastic and takes its colour from the statute from which it occurs, the concept varying with time and society and its needs... In my opinion, the contentions raised by Dr. Ambedkar, though interesting, are not sound because they are based on the assumption that the concept of public purpose is a rigid concept and has a settled meaning, Dr. Ambedkar is right in saying that in the concept of public purpose there is a negative element in that no private interest will be created in the property acquired compulsorily; in other words, property of A cannot be acquired to be given to B of his own private purpose and that there is a positive element in the concept that the property taken must be for public benefit.…” An acclaimed jurist Dr.D.D.Basu56 having surveyed a catena of decisions has succinctly stated the legal position in the following words: “Public purpose, which is part of the concept of eminent domain, is a condition precedent for invoking Article 300A of the Constitution and therefore a person can be deprived of his property by the legislature only for a public purpose. The question whether the purpose is primarily public or private, however, has to be decided by the Legislature. It is primarily for the State to decide whether for acquiring land there exists a “public purpose” or not. Where 56 D.D.Basu, ‘Shorter Constitution Of India’ 15th Edition, Lexis Nexis, 1517-1518, (2019) - 84 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 such power of the State is exercised mala fide or for collateral purposes or the purported action is de hors the Act, irrational or otherwise unreasonable, or the so-called purpose is “no public purpose” at all and fraud on the Statute is apparent, a writ Court can interfere under Arts. 32 and 226 of the Constitution, but except in such cases, the declaration of public purpose made by the Government is not subject to judicial review. The Court while exercising powers under Arts. 32, 226 or 136 of the Constitution cannot be substitute its own judgement for the judgement of the Government, as to what constitutes public purpose…” To the above needs to be superadded that when it comes to legislative decision as to public purpose, whether articulate or inarticulate, the scope of its scrutiny in writ jurisdiction is further diminished consistent with the doctrine of separation of powers. In K.T.PLANTATION, at paragraph 92, it is observed: “Our Constitution makers were greatly influenced by the Western doctrine of eminent domain when they drafted the Indian Constitution and incorporated the right to property as a Fundamental Right in Article 19(1)(f), and the element of public purpose and compensation in Articles 31(2). Of late, it was felt that some of the principles laid down in the Directive Principles of State Policy, which had its influence in the governance of the country, would not be achieved if those articles were - 85 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 literally interpreted and applied. The Directive Principles of the state policy lay down the fundamental principles for the governance of the country, and through those principles, the state is directed to secure that the ownership and control of the material resources of the community are so distributed as best to sub- serve the common good and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. Further, it was also noticed that the fundamental rights are not absolute but subject to law of reasonable restrictions in the interest of the general public to achieve the above objectives specially to eliminate Zamindari system…” (c) In the light of delineation of this aspect of law as above, let me examine if the impugned Act is structured on public purpose: Firstly, the Act intends to address the difficulties of mulagenidars/volamulagenidars who, because of restrictive clauses in the lease such as non-alienation, non-development, etc., are put to massive disadvantage; they are not in a position to exploit the leasehold properties to their fullest potential, despite holding the same in eternity. As already mentioned above, the muldars & intermediaries were taking undue advantage of servient position of these persons by denying - 86 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 permission for alienation or development of the holdings; at times, they were requiring them to pay exorbitant monies for securing such permission; the persons who apparently constitute a class of small-holders had been in the predicament of an otherwise vulnerable position also, as rightly contended by Mr.A.G.Holla. Therefore, the government having secured necessary information & data in this regard, introduced the Bill; there were interactive sessions between the government and the stakeholders; it is not that the impugned Act came overnight, as a bolt from the blue. The Bill was preluded by the objects & reasons that are duplicated in Preamble to the Act. This statute intends to extinguish interest of the muldars and enlarge that of the mulagenidars/volamulagenidars to the level of full ownership. As of necessity, it excludes all intermediaries in a wholesale way so that the vulnerable section of occupants does not suffer any longer at their hand. It is pertinent to see paragraph 89 of K.T.PLANTATION: - 87 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 “The US Supreme Court in Hawaii Housing Authority v. Midkiff, 467 US229(1984) allowed the use of eminent domain to transfer land from lesser to lessees. In that ruling the court held the government does not itself have the use the property to legitimate taking, it is a takings purpose and not its mechanics that must pass the muster under the public use clause.…” This legislative measure would relieve the vulnerable section of the society from the aforementioned predicament. A careful examination of the purpose & policy content of the impugned Act unmistakably brings to the fore abundant elements of public purpose, in the light of Apex Court observations in the following two cases: In K.T.PLANTATION, supra at paragraph 117: “Deprivation of property within the meaning of Art.300A, generally speaking, must take place for public purpose or public interest. The concept of eminent domain which applies when a person is deprived of his property postulates that the purpose must be primarily public and not primarily of private interest and merely incidentally beneficial to the public. Any law, which deprives a person of his private property for private interest, will be unlawful and unfair and undermines the rule of law and can be subjected to judicial review. But the question as to whether the purpose is primarily public or private, has to be decided by the legislature, - 88 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 which of course should be made known. The concept of public purpose has been given fairly expansive meaning which has to be justified upon the purpose and object of statute and the policy of the legislation…” In RANGANATHA REDDY, supra at paragraph 6: “It is indisputable and beyond the pale of any controversy now as held by this Court in several decisions including the decision in the case of His Holiness Kesavananda Bharati Sripadagalaveru v. State of Kerala(1) popularly known as Fundamental Rights case-that any law providing for acquisition of property must be, for a public purpose. Whether the law of acquisition is for public purpose, or not is a justiciable issue. But the decision in that regard is not to be given by any detailed inquiry or investigation of facts. The intention of the legislature has to be gathered mainly from the Statement of Objects and Reasons of the Act and its Preamble. The matter has to be examined with reference to the various provisions of the, Act, its context and set up, the purpose of acquisition has to be culled out therefrom and then, it has to be judged whether the acquisition is for a public purpose within the meaning of Article 31(2) and the law providing for such acquisition.” (d) The vehement submission of Mr.Uday Holla and other advocates appearing for the Petitioners that the number of mulagenidars being less than muldars, the idea of public interest stands logically excluded, cannot be accepted. Firstly, in matters like this, numerics are not the - 89 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 decisive factors as to there being public purpose. Secondly, official statistical data relating to muldars and mulagenidars which the Petitioners heavily banked upon, is confined only to Dakshina Kannada & Udupi districts; however, as already mentioned above, the Act keeps in view the vulnerable sections of mulagenidars kind throughout the State. In a particular region, number of beneficiaries of a legislation may be arguably less, but that does not assume much relevance in adjudging elements of public purpose, as rightly contended by Mr.A.G.Holla. Any legislative measure intended to give effect to any of the Directive Principles will cause some prejudice to a small section of people. This invariably & inevitably happens in any civilized jurisdiction. Ours being a constitutionally ordained Welfare State, a sectarian utilitarianism has no significant role in matters like this. The following observations at paragraphs 47 of JILUBHAI, supra in this background assume importance: “It is accordingly clear that in a welfare State envisioned in the directive principles of State policy, the basic perquisites are that everyone - 90 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 is entitled to minimum material well being, such as food, clothing, and decent housing. Expanding living standard are possible with the existing or expanding physical resources and scientific knowledge etc., and the State has right and duty to act when private initiative fails. In a democratic society, every individual needs legal protection for the beneficial enjoyment of what he has discovered and appropriated; has created by his own labour (in wider sense); and what he has acquired under the existing social and economic order subject to law and order. Equally welfare consists in adjusting individual interests with social interest by the aid of law as social engineering, which would mean public restraints on property designed to mitigate the privileges which property offers in enjoyment of the things that life has to offer. Restraints on the power to use the property as a delegated power of command is means as of quasi- governmental private control over the major assets of a nation. Properly, thereby, is subject to regulation. The directive principles enjoin the State to reorganise the economic system by law or administrative means and the Fundamental rights are means to that end to make right to life meaningful, equality of opportunity and of status and dignity of person a reality. The fundamental rights and the directive principles are the two wheels of the chariot as an aid to make social and economic democracy a truism…” In view of the above discussion, the sixth question, as to the absence of public purpose in the impugned Act, is answered in the negative.-. 91 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 XIII. AS TO FRUGALITY OF COMPENSATION PAYABLE TO MULDARS AND CONSEQUENT INVALIDATION OF THE IMPUGNED ACT: (a) All the learned advocates appearing for the Petitioners vehemently contended that the right to property is guaranteed as a Fundamental Right under Article 26 to the religious institutions/denominations and it enjoys constitutional protection under Article 300A, even after the 44th Amendment of 1978 and therefore, the frugality of the compensation strikes at the validity of impugned Act. In support of this submission, they heavily banked upon certain observations in COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS, vs. SRI LAKSHMINDRA THIRTHA SWAMIAR57 in re Article 26 and K.T.PLANTATION in re Article 300A. Mr.Uday Holla and Mr.Abhinav Ramanand apprised the court of apportionment of compensation amount as between the lessor and lessee in the ratio of 40:60 when the property is acquired and that even this norm is also spurned by the scheme of impugned 57 AIR1954SC282- 92 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 Act. Mr.Uday Holla & Mr.Keshava Bhat invoked the idea of devaluation of rupee over the decades and this aspect has not been taken care of by the Act while providing the framework for determination of compensation. To put it shortly, in their opinion, what is payable to the muldars is an illusory compensation and therefore, the Act is a fraud on the constitutional guarantee. Mr.B.V.Acharya & Mr.A.G.Holla per contra contended that Articles 26 & 300A do not guarantee against acquisition of private property for public purpose especially when compensation is being paid; the determination of compensation is on the norms usually obtaining in the realm; the interest of the muldars is frugal; muldars getting the property back is almost unthinkable; the Fundamental Right to Property in the sense of erstwhile Article 19(1)(f) is not guaranteed to the religious institutions/denominations and what is protected is their right to own/acquire & administer property vide Article 26(c) & (d). In any circumstance, the property is taken away from the land owners by paying compensation - 93 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 that is determined normatively; lastly, the idea of rupee devaluation is alien to the matter. (b) Sub-section (2) of section 7 of the impugned Act reads: “The amount payable under sub-section (1) shall be 500 times of the lease rental as is evidenced in the records. However, where the Mulageni lease is conditional requiring the permission of the Mulgar for alienation of the property the amount payable shall be calculated at 1000 times of the lease rent.” Thus, at the outset, it is not a case of acquisition of property sans compensation. Whether the amount to be determined as compensation, is illusory, as argued by the Petitioners needs a deeper examination. It has been observed in K.T.PLANTATION that the obligation of State to pay compensation to a person who is deprived of his property in acquisition is in-built in Article 300A of the Constitution. Ordinarily, a law providing for acquisition of private property for public purpose cannot say that no compensation shall be paid. Though in the scheme of constitutional guarantee to right to property, acquisition sans payment of compensation is not totally excluded.-. 94 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 However, the State in such extreme cases will have a very burden to justify a measure of the kind; otherwise, such a confiscatory legislation is liable to be voided on the touchstone of constitutional guarantees. In LAKSHMINDRA THIRTHA SWAMIAR, there is some discussion about the scope & invocability of Article 26(c) & (d), is true. This Article inter alia guarantees the right of religious institutions/denominations to own, acquire & manage their property; but this right too, as any other, is not absolute and does not insulate such properties from acquisition by authority of law. The observations at paragraph 3 of MAHANT RAM KISHAN DASS vs. STATE OF PUNJAB58 are aptly reproduced: “The second objection, grounded on a decision of this Court and using a Constitution missile is that the freedom guaranteed under Article 26(c) of the Constitution to own and acquire property by a religious denomination is imperilled on account of this acquisition, and also has no basis. It is not as if a religious denomination cannot own land. It can under our Constitution hold properties. But such a right is not an absolute one nor unlimited altogether… One thing is, however, clear that Article 26 guarantees inter alia the right to own and 58 (1983) 1 SCC377- 95 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 acquire movable and immovable property for managing religious affairs. This right, however, cannot take away the right of the State to compulsorily acquire property in accordance with the provisions of Article 31(2). If, on the other hand, acquisition of property of a religious denomination by the Stale can be proved to be such as to destroy or completely negative its right to own and acquire movable and immovable properly for even the survival of a religious institution the question may have to be examined in a different light…” It is not the case of Petitioners that the properties that are subject matter of the impugned Act are required for the survival & maintenance of the religious institutions, be they Mutt, Church or Mosque. There is no specific plea in the petitions, nor any evidentiary material on record in this regard. The Apex Court in BIRA KISHORE DEB. RAJA vs. STATE OF ORISSA59, said that this Article cannot be casually invoked unless the Petitioners claim the property in question on behalf of a denomination and such denomination is specified in the pleadings, with full particulars. The right guaranteed by clauses (c) & (d) of Article 26 not being absolute is subject to reasonable regulation by the State provided the substance of such 59 (1964) 7 SCR32- 96 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 right is not affected. The power of State to regulate interests of social welfare as a whole, comes from the Directive Principles enshrined in Part IV of the Constitution; court’s duty is to strike a golden balance between competing claims of different interests. That is how properties of religious denominations are permitted to be regulated and at times, taken away by legislative measures devised for implementing any of the Directive Principles so long as the core of religion is not interfered with. The following observations in KHAJAMIAN WAKF ESTATES vs. STATE OF MADRAS60, lend support to this view: “…It was next urged that by acquiring the properties belonging to religious denominations the legislature violated Art. 26(c) and (d) which provide that religious denominations shall have the right to own and acquire movable and immovable property and administer such property in accordance with law. These provisions do not take away the right of the State to acquire property belonging to religious denominations. Those denominations can own acquire properties and administer them in accordance with law. That does not mean that the property owned by them cannot be acquired. As a result of acquisition they cease to own that 60 (1970) 3 SCC894- 97 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 property. Thereafter their right to administer that property ceases because it is no longer their property. Art. 26 does not interfere with the right of the State to acquire property..."

(c) The vehement submission advanced on behalf of Petitioners that decades ago, the properties were given on lease prescribing frugal sums of money as the annual rents, when the purchasing power of rupee was high and the rental income was being used by the religious institutions (Mutts & Churches), may be true; but is irrelevant, to say the least. Firstly, it is not their case that the rentals fixed in mulagenies are variable on the basis of fluctuating rupee value. Secondly, the compensation on normative determination payable under the Act if deposited in any Nationalized Bank, the interest that would accrue even at lesser rates would far exceed the fixed rentals, as rightly shown by Mr.A.G.Holla by arithmetical calculation. Even if Act is struck down, the rentals payable under the mulageni arrangements would be the same as originally fixed. Lastly, this question is no - 98 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 longer res integra in view of following observations in JILUBHAI at paragraph 56: “… the loss of rupee value is not relevant consideration to adjudge the principle laid by the statute. Giving acceptance to the contention renders every statute ultra vires by the nature of the litigation that the time lag inevitably intervenes an rupee value, during the interregnum gets eroded and every Act thereby because, on its account, unworkable. In normal acquisition, the principle of depletion of rupee value has repeatedly been held to be not relevant to determine market value…“ (d) The contention of Petitioners that real estate prices having skyrocketed, their properties are very valuable and therefore, the rental values long time ago stipulated in mulageni arrangements, cannot be the basis for determination of compensation, again is difficult to agree with. A plea of unreasonableness, arbitrariness, proportionality, etc., always raises an element of subjectivity and therefore, courts cannot strike down a statute that too when the right to property is no longer a fundamental right. In each case, courts have to examine the scheme of impugned Act, its object while treating plea of the kind. In legislative measures designed for giving - 99 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 effect to the Directive Principles of the kind, the compensation need not be determined on the basis of market value, nor be it just or adequate in common parlance. Different statutes prescribe different norms to determine the amount payable to the deprived owner. If these norms bear a just relation to the object of determining the compensation, further examination in judicial review is ordinarily barred. While examining the land owners challenge to the acquisition in a petition filed under Article 226 of the Constitution, courts should not adopt a pedantic approach but should decide the matter keeping in view the constitutional goals of social & economic justice. A host of factors enter the fray whilst adjudging validity of norms prescribed by the statute for determining the compensation. Pragmatically speaking, the real worth of muldars interest in the property is not that great or worthy when compared to a case of any other lease where the prospects of regaining the property by sheer efflux of time, are concrete and assuring. Where rental values decades ago stipulated in these mulagenies - 100 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 being admittedly frugal [in fact, that is the ground urged by the Petitioners for faltering the normative basis enacted for determining the compensation]., it is unrealistic to assume that the mulagenidars/volamulagenidars would not pay such rents and thereby, venture the risk of termination of lease. Even in breach, it is not that, muldar would invariably get right of re-entry in no time, reprieve/protection arguably availing under Section 111 of the 1882 Act or the Karnataka Rent Act, 1999. Thus, the possibility of muldars getting the property to their supardi despite breach of covenants, are too remote to be mentioned. The Apex Court in a case involving mulageni i.e., AMBALAL MANSUKHRAM JOSHI vs. THE ADDITIONAL SPECIAL LAND ACQUISITION OFFICER, AHMEDABAD61 at paragraph 3 observed about the interest of muldar: ‘…The value of his right to reversion - a remote one – is a little or nothing…’. It negatived the contention as to frugality of compensation when the amount if deposited would fetch periodic interest which was in excess of periodic rentals. 61 AIR1974SC591- 101 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 (e) There is lot of force in the submission of Mr.B.V.Acharya & Mr.A.G.Holla that the method of capitalization of income derived from the land is a popularly accepted norm for determination of compensation payable to the land losers. The Apex Court in RAJIV SARIN, supra, at paragraph 68, observed: “…It is to be noted that Article 300A was inserted by the Constitution (44th Amendment) Act, 1978 by practically reinserting Article 31(1) …. Therefore, right to property is no longer a fundamental right but a right envisaged and conferred by the Constitution and that also by retaining only Article 31(1)… and specifically deleting Article 31(2), as it stood. In view of the aforesaid position the entire concept to right to property has to be viewed with a different mindset than the mindset which was prevalent during the period when the concept of eminent domain was the embodied provision of fundamental rights. But even now as provided under Article 300A of the Constitution the State can proceed to acquire land for specified use… When the State exercises the power of acquisition of a private property thereby depriving the private person of the property, provision is generally made in the statute to pay compensation to be fixed or determined according to the criteria laid down in the statute itself. It must be understood in this context that the acquisition of the property by the State in furtherance of the Directive Principles of State Policy was to distribute the material resources of the community including - 102 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 acquisition and taking possession of private property for public purpose. It does not require payment of market value or indemnification to the owner of the property expropriated. Payment of market value in lieu of acquired property is not a condition precedent or sine qua non for acquisition. It must be clearly understood that the acquisition and payment of amount are part of the same scheme and they cannot be separated. It is true that the adequacy of compensation cannot be questioned in a court of law, but at the same time the compensation cannot be illusory…” Even the compensation payable to landlords under Section 40 of the Karnataka Land Reforms Act, 1961 after vesting of the agricultural land in the State is also structured on capitalization method. In view of this, the seventh question, as to illusory or frugal compensation payable to the muldars under the XIV. AS TO SOME MISCELLANEOUS impugned Act is answered in the negative. CONTENTIONS: (a) This court does not agree with Petitioners’ contention that the idea enacted in the impugned Act has nothing to do with ‘distribution of material resources of community’ in the sense of Article 39(b) of the Constitution since the said expression has been expansively construed by the Apex Court in decisions that - 103 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 galore e.g. RANGANATHA REDDY, supra. Petitioners’ contention that right to property is treated as the ‘basic right’ or ‘human right’ by the Apex Court in a catena of decisions, may be true when exercise of other fundamental rights guaranteed inter alia under Articles 19 & 21 is dependent upon property, and not otherwise. It is not the case of Petitioners that the mulageni properties are the only source of livelihood and if they are taken away, it amounts to taking away the means of livelihood. The contention that where the tenanted properties are acquired, the lessor and the lessee generally apportion the compensation in the ratio of 40:60, does not advance case of the Petitioners’ even in the least. Added, such a contention is speculative, there being no plea or material on record as to any mulageni property having been acquired, there is claim by the muldars for apportionment of compensation and the mulagenidar/volamulagenidar is repudiating the same. (b) This court does not cotton with the submission of Mr.A.G.Holla appearing for the private Respondents that - 104 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 the interest of muldars in the subject properties is not of full ownership and that it is akin to ‘ryotwari tenure’. The text & context of the impugned Act presuppose that muldars are full owners of subject properties. His reliance on BALMADIES PLANTATIONS LTD. vs. THE STATE OF T.N62 which essentially involved agrarian lands unlike the case at hands, does not much support his canvass. In the said decision, the court was examining the status of land holders under ryotwari settlement brought about by Col. Read in 1792 consequent to ceding of territories by Tippu Sultan, as described in the Manual of Administration quoted by Baden-Powell, in Vol. III of Land Systems of British India. His reliance on Full Bench decision of Kerala High Court in SUKAPURAM SABHAYOGAM vs. STATE OF KERALA63, again is of no avail. Conversely, the Bench treated ‘mulgar’ or ‘mulga’ as meaning the owner of land keeping in view observation of Justice Gajendragadkar as he then was in LAKSHMAN GOPAL vs. VISHNU62AIR1972SC224063 AIR1963KER101- 105 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 RAGHOBA64. It observed at the latter half of paragraph 61: “…the point to be noted is that in the decision of the Bombay High Court, referred to above, a mulawargadar has always been understood in South Canara to be an owner or original proprietor…”. At the same time, it referred to a variant view of the Apex Court in KARIMBIL KUNHIKOMAN vs. STATE OF KERALA65, does not make much difference. Mr.A.G.Holla’s contention that despite breach of covenant by the mulagenidar/volamulagenidar, no right of entry accrues in favour of muldar being of peripheral significance, does not merit examination. However, his contention that there is no cognizable prejudice to the muldars by statutory adoption of capitalization method for determination of compensation has force, since as already discussed infra, what they get as interest by investing such amount in any financial institution would be far in excess of the fixed rental value. He is also right in submitting that one need not keep in mind the value of whatever constructions the 64 AIR1951Bom. 355 65 AIR1962SC723- 106 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 mulagenidars/volamulagenidars have done in the subject property and that what needs to be focused is only the bare land comprising in mulageni, more particularly when the doctrine of dual ownership obtaining in the realm of 1882 Act. He is also right in contending that the idea of adequacy or reasonableness of compensation does not have much place where a legislative measure is to give effect to the Directive Principle in Article 39(b), even when right to property is constitutionally guaranteed under Article 300A. Lastly, this court does not agree with Mr.B.V.Acharya & Mr.A.G.Holla that ‘manifest arbitrariness’ cannot be a ground for invalidation of plenary legislation, such a ground having been reiterated by the Apex Court in K.S.PUTTASWAMY vs. UNION OF INDIA66. XV. A FEW WORDS BEFORE PARTING WITH THE CASE: (a) In RANGANATHA REDDY supra, the Apex Court quoted the following words of Sir Alladi Krishnaswami Ayyar, a prominent member of Constituent Assembly:

66. (2017) 10 SCC1- 107 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 "..Law, according to me, if it is to fulfil its larger purpose, must serve as an instrument of social progress. It must reflect the progressive social tendencies of the age. Our ancients never regarded the institution of property as an end in itself. Property exists for dharma… the duty which the individual owes to the society from the whole basis of social framework. Dharma is the law of social well-being and varies from yuga to yuga. Capitalism as it is practised in the West came in the wake of the Industrial Revolution and is alien to the root idea of our civilisation. The sole end of the property is yagna and to serve a social purpose..."

In an organized State, law operates as an instrument of social change which the Fundamental Document of the country aspires for. Any such change invariably affects a few, and at times, badly. This cannot be more aptly answered than by the following words of Justice Krishna Iyer at the fag end of paragraph 67 in RANGANATNHA REDDY, supra. “These extreme lurid, recondite picturisations cannot be transformed into probabilities and realities, especially in a case where we find little to complain in fairness of procedure or delivery of the end product. Of course, in a 'radical change' situation, certain classes, invoking varnishing values, may cry 'wolf' and in any welfare legislation stray injustice is unavoidable. Perfection is God's property, to aim at it is - 108 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 human progress. We find no legal flaw in the measure under attack.” (b) All the above having been said, this court is of a considered view that ours being a constitutionally ordained Welfare Governance, State action be it legislative, executive or otherwise should not give scope for grievance of the kind which muldars are debating in these cases. Their arguable grievance regardless of its legal tenability would hopefully disappear, if the rate of compensation i.e., 500 times the rental value in the absence of non- restrictive clause in the lease and 1000 times in the case of restrictive clauses, is upwardly revised. After all, State can legislate mass justice, courts not being the only sanctuary in a democracy. Matter essentially lies in the domain of legislature. This court hopes and trusts that something in this regard would happen at the hands of Powers That Be, before long. In the above circumstances, challenge to the impugned Act fails and all these Petitions are dismissed, costs having been made easy.-. 109 - WP No.11158/2013 C/W W.P.Nos.43928/2012, 11966/2013 23287/2013, 62434/2016 This Court places on record its deep appreciation for the research and assistance rendered by its official Law Clerk Cum Research Assistant, Mr. Faiz Afsar Sait. Sd/- JUDGE cbc/snb