State of Mysore Vs. Associate Cement Companies Ltd. and anr. - Court Judgment

Excerpt:
civil - ultra vires - appeal against judgment of high court passed in writ petition declared ultra vires - impugned judgment of high court set aside by upholding validity of rule 71 - appeal allowed. - [ b.p. sinha, c.j.,; a.k. sarkar,; j.c. shah,; k. subba rao and; jafer imam, jj.] these petitions by the holder of kavalappara sthanam, his wife, daughters and soil challenged the constitutional validity of the madras marumakkathayam (removal of doubts) act, 1955 passed by the madras legislature soon after the privy council had declared the properties in possession of the sthanee to be sthanam properties in which the members of the tarwad had not interest. section 2 of the act, which contained the substantive provision, was as follows:-- "2. notwithstanding any decision of court, any sthanam in respect of which:- (a) there is or had been at any time an intermingling of the properties of the sthanam and the properties of the tarwad, or (b) the members of the tarwad have been receiving main. tenance from the properties purporting to be sthanam properties as of right, or in pursuance of a custom or otherwise, or (c)there had at any time been a vacancy caused by there being, no male member of the tarwad eligible to succeed to the sthanam, shall be deemed to be and shall be deemed always to have been a marumakkathayam tarwad and the properties appertaining to such a sthanam shall be deemed to be and shall be deemed always to have been properties belonging to the tarwad to which -.he provisions of the madras marumakkathayam act, 1932 (mad. xxii of 1933), shall apply." the question for decision was whether the impugned act infringed the fundamental rights of the petitioners guaranteed by arts. 4, 19(1)(f) and 31 of the constitution. held (per sinha, c. j., subba rao and shah, jj.) that the three tests laid down by the act were contrary to the well- settled principles of marumakkathayam law with regard to which there could be no scope for doubt and as such not only not germane but extraneous to the object it sought to achieve. they were a device to deprive the sthanam of its properties and vest them in the tarwad and as such directly hit by art. 19(1)(f) and could not be saved by art. 19(5). assuming that the sthanam properties were held in janmam right and as such were estates within the meaning of art. 31a, the impugned act was immune from challenge. that article, properly construed, envisages agrarian reform and provides for the acquisition, extinguishment or modification of proprietary and various other kinds of subordinate rights in a tenure called the estate solely for that purpose and must be limited to it. although it may not be permissible to refer to the statement of objects and reasons of its amendment for purposes of construction, it can be referred to for the limited purpose of ascertaining the conditions prevailing at the time and purpose underlying the amendment. aswini kumar ghose v. arabinda bose, [19531 s.c.r. 1, con- sidered. there is no substance in the argument that since the impugned act seeks to regulate the rights of the sthanee and the junior members of the tarwad inter se it falls within by cl. (2)(b) of art. 31a. that clause has to be read with cl. (1)(a) of the article and since the impugned act does not contemplate any agrarian reform or seek to regulate the rights inter se between landlords and tenants or modify or extinguish any of the rights appertaining janmam right, leaving all its characteristics intact, it does not come within the purview of art. 31a of the constitution. sri ram ram narain v. state of bombay, [1959] supp. 1 s.c.r. 489, and atma ram v. state of punjab, [1959] supp. 1 s.c.r. 748, referred to. fundamental rights have a transcendental position in the constitution and before an article embodying a fundamental right can be construed to exclude another every attempt should be made to harmonize them and not until it is found impossible to do so, can one be made to yield to the other. barring such exceptional cases, any law that infringes any of the fundamental rights must be void. the word 'law' in art. 31(1) must mean a valid law, and such a law must satisfy two tests, (1) that the legislature must be competent to enact it and (2) that it must not infringe any fundamental rights. a law that deprives a citizen of his property must, therefore, be invalid if it infringes art. 19(1)(f) of the constitution. deep chand v. state of u. p., [1959] supp. (2) s.c.r. 8, and basheshway nath v. commissioner of income-tax, delhi, [1959] supp. 1 s.c.r. 528, referred to. article 31 of the constitution, since its amendment by the constitution (fourth amendment) act, 1955, is no longer a selfcontained article providing for a subject different from that dealt with by art. 19, but deals with two different subjects, cis. (2) and (2a) dealing with acquisition and requisition and cl. (1) with deprivation of property by authority of law, and can no longer be construed on the analogy of art. 2 1 so as to exclude the operation of art. 19. the state of west bengal v. subodh gopal bose, [1954] s.c.r. 587, a. k. gopalan v. the state of madras, [1950] s.c.r. 88, referred to. state of bombay v. bhanji munji and any., [1955] 1 s.c.r. 777, held inapplicable. nor does art. 31(1) deal with police power. although such power, as understood in america, is no arbitrary power divorced from social control and public good, there can be no need of importing such a doctrine into the indian constitution. the word 'law' used by art. 31(1) indicates its limitation and refers back to art. 19 and any law made under art. 31(1) can be sustained only if the restrictions it imposes are reasonable and in the interest of the general public. the constitution does not confer on the indian parliament the same power which the parliament of england possesses and while it does contemplate a welfare state, that has to be brought about within its frame-work of the constitution itself. the correct approach should, therefore, be first to ascertain the fundamental right and then to see whether the law infringes that right. if ex facie it does so, it has to stand the test of art. 19(5). in certain circumstances, however, deprivation of fundamental right to property may also amount to a reasonable restriction under the article. narendra kumar v. the union of india, [196o] 2 s.c.r. 375, referred to. individual proprietary rights being ordinarily inviolable unless a clear case is made out for restricting them, there must be a harmonious balancing between the fundamental rights declared by art. 19(1) and social control permitted by art. 19(5). it is implicit in the nature of restrictions that no inflexible standard can be laid down and each case must be decided on its own facts. but the restrictions must not be arbitrary and must have a reasonable relation to the object sought to be achieved and shall be in the interest of the general public. state of madras v. v. g. rao, [1952] s.c.r. 597, henry webster v. peter cooper, 14 law ed. 510, and the citizens' savings and loan association and cleaveland, ohio v. topeka city, 22 law ed. 455, referred to. although the redress of a real and genuine grievance of a section of the community may be in public interest, it is impossible to hold that the impugned legislation was either justified or in such public interest. iswari prosad v. n. r. sen, a.i.r. 1952 cal. 273, held in- applicable. marumakkathayam law is a body of customs and usages that have received judicial recognition, and is fundamentally different from hindu law, being a matriarchal system. the family, called tarwad, consists of all the descendants of one common ancestor. it consists of a mother and her male and female children and the children of those female children and so on. only the senior-most male member can attain the sthanam, which is a position of dignity with specific properties attached to it. when he does so and becomes the sthanee he ceases to have any interest in the tarwad properties. occasionally a female member also becomes the sthanee. like a hindu widow or an impartible estate-holder the sthanee has an absolute interest in the income of the sthanam properties or acquisitions therefrom. a member of the tarwad has no right to maintenance from out of the sthanam properties nor can such property be converted into tarwad property by the grant of such maintenance by custom or otherwise or intermingling of the sthanam properties with the tarwad properties by the sthanee. his position approximates to that of a member separated from a hindu family and there can be no scope for the application of the doctrine of blending. like the sthanee who ceases to have any present proprietary interest in the tarwad, the members of the tarwad also can have no present proprietary interest in the sthanam property. they continue to be blood relations with a contingent right of succession to each others' property that is no more than a spies successions. the right of a subsequently born male member of the tarwad to succeed to the sthanam and its property is judicially recognised. case-law reviewed. per imam and sarkar, jj.-the impugned act is protected by art. 31a and is not open to question in the ground that it violates arts. 14, 19(1)(f) and 31(1) of the constitution. there is no basis for the contention that art. 31(1)(a) contemplates a law relating to agrarian reform only. the article makes no mention of any such reform and there can be no doubt that under it a janmam right may be acquired, extinguished or modified whether the land held in such right is agricultural or not. it is not permissible to refer to the objects and reasons stated in the bills, by which the acts amending art. 31a of the constitution were introduced, for the construction of the statute and, therefore, the word 'law' in art. 31a(1) cannot be read in relation to sub-cl. (a) only as a law intended to achieve agrarian reform on the basis of the supposed object of the legislature in enacting art. 31a. aswini kumar ghose v. arabinda bose, [1953] s.c.r. 1 referred to. it is not correct to say that the impugned act does not effect any modification of janmam rights and therefore it does not come within art. 31a. when the article speaks of modification of janmam rights, it does not speak of such rights in the abstract but contemplates the modification of such rights held by a person. it would be as much modification of janmam rights, if such rights held by one person are directed to be held by a number of persons jointly, as when the incidents of such rights are altered. sri ram ram narain medhi v. the state of bombay, [1959] supp. 1 s.c.r. 489, and atma ram v. state of punjab, [1959] supp. 1 s.c.r. 748, relied on.  it is not correct to say that the legislature in giving the provisions of the impugned act retrospective operation or in providing that they should prevail notwithstanding any decision of the court to the contrary, was acting judicially and not in a legislative capacity and that the act was on that ground invalid. the rule obtaining in america that legislative action cannot retract on past controversies and reverse decisions of courts and the relevant american decisions can have no application in india. piare dusadh's case, [1944] f.c.r. 61, referred to.  order1. special leave granted.2. this appeal is preferred by the state of mysore against the judgment of the high court of mysore at banglore in writ petition no. 2781/70 by which a division bench of the high court declared rule 71 of the hyderabad land revenue rules ultra vires following their earlier decision in rajshekar v. state of mysore . number of appeals were preferred against that decision of the high court and they were heard by this court and the judgment is rendered in state of mysore etc. v m.l. nagade and gadag and ors. this court set aside the judgment of the high court and upheld the validity of rule 71. accordingly, this appeal is allowed and the decision of the high court on this point is set aside.3. mr. g.s. ullah, learned counsel for the respondents submitted that there were some other points which could have been agitated either before the high court or before the board of revenue. if there are some points which still survive after the decision of this court, the respondents are at liberty to agitate them before an appropriate forum. accordingly, the appeal is allowed and the judgment of the high court is set aside with no order as to costs.

Judgment:
ORDER

1. Special leave granted.

2. This appeal is preferred by the State of Mysore against the judgment of the High Court of Mysore at Banglore in Writ Petition No. 2781/70 by which a Division Bench of the High Court declared Rule 71 of the Hyderabad Land Revenue Rules ultra vires following their earlier decision in Rajshekar v. State of Mysore . Number of appeals were preferred against that decision of the High Court and they were heard by this Court and the judgment is rendered in State of Mysore etc. v M.L. Nagade and Gadag and Ors. This Court set aside the judgment of the High Court and upheld the validity of Rule 71. Accordingly, this appeal is allowed and the decision of the High Court on this point is set aside.

3. Mr. G.S. Ullah, learned Counsel for the respondents submitted that there were some other points which could have been agitated either before the High Court or before the Board of Revenue. If there are some points which still survive after the decision of this Court, the respondents are at liberty to agitate them before an appropriate forum. Accordingly, the appeal is allowed and the judgment of the High Court is set aside with no order as to costs.