SHIVDEV SINGH versus THE STATE OF PUNJAB

426

.SUPREME COURT REPORTS [196S)

1962

K. Chinnaswamy Reddy •• State of Andhra P1adeah

Wanchoo J.

other accused should also be set aside and his appeal should also be re-heard in the manner in dicated above. We therefore set aside the order of the High Court with respect to the retrial of the other accused and direct that his appeal will also be re-heard along with the appeal of the appellant.

Appeal allowed.

1962

SHIVDEV SINGH v. THE STATE OF PUNJAB

(And Connected Petition)

..

. (B.P. SrNHA, C.J., P.B. GAJENDRAGADKAR, K. SuB•A RAO, K. N. WANCHOO and J.C. SHAH, JJ.)

Delegated Legislation-Ceiling on land fixed-Exemption of efficiently managed farms-Part of rule going beyond rule making power-Not severable-Whole rule ultra virea-The PEPSU Tenancy and Agricultural Lands Act, 1955 (Pepsu 13 of 1955), as amended by Act XV of 1956, ss. 32A, 32K Rules, 1958, r.31.

The PEPSU Tenancy and Agricultural ·Lands Act was It was amended iil October, 1956, enacted in March, 1955. and Ohs. IV-A and IV-B were added. Chapter IV-A pro vides for ceiling on land and s. 32-A in that chapter fixes the permissible limit of land which could be owned or held by any person as landlord or tenant under his personal culti vation. Section 32K provides for exemption of efficiently managed farms consisting of compact blocks on which heavy investment or permanent structural improvements had been made, and whose· break·up was likely to lead to a fall in production. Rules were framed in March, 1958, to carry out the purposes of the Act. Rule 31 lays down the procedure how the exemption of efficiently managed farms was to be determined. Sub.rule (2) provides that the PEPSU Land Commission, which was to be appointed to advise the State Government with regard to the exemption of lands from the

3 S.C.R.

SUPREME COURT REPORTS

427

ceiling in accordance with the provisions of .s. 32K, shall assign marks in the manner provided in sub-r. (4) in order to decide whether a farm was efficiently managed or not, and whether it consisted of compact blocks on which heavy invest· ment or permanent structural improvements had been made and whose break-up was likely to lead to a fall in production. Farms were classified as Class A, Class B and Class C farms. Class A farm was to be deemed to be an efficiently managed farms, 50% of the area of a farm of Class B was to be deemed to be an efficiently managed farm, and no area under a farm of Class C was to be an efficiently managed farm.

to be deemed

1982

S hivdev Singh .... The Stat• of Punja b

' -...

In writ petitions filed in this court, the petitioners did not challenge the constitutionality of Ohs. IV-A and IV-B, but they challenged the constitutionlity ofr. 31. Their con tention was that the Commission when enquiring into their claim of exemption under s. 32K(i)(iv) of the Act was bound to follow the requirem~nts of r. 31 in addition to the fulfil . ment of the conditions laid down ins 32K(i)(iv). The Peti tioners contended that the standards of yields prescribed in Schedule C under r. 31 were arbitrary, obnoxious, unreason able, hypothetical, completely unrealistic and unattainable in any modern farm and were repugnant to the provisions of the Act. The system of marking evolved under r. 31 was completely alien and foreign to the Act. Rule 31 went beyond the power conferred on the State Government under s. 32K and was ultra vires the Act. The rule was a colourable piece of legislation and the object of framing it was to defeat the purpose of the Act so that no exemption may be granted although the to efficiently managed farms. The rule fettered the judgment and discretion of the Commission which could not be done under the Act.

intended to grant exemption

legislature

Held, that, Ohs. IV-A was a measure of land reform and was intended to provide for equitable distribution of land and with that object s. 32-A provided for ceiling on land holding by an individual. Before a farm could claim exemption from the ceiling fixed in s. 32-A, it had to be proved that the farm was efficiently managed, it consisted of compact blocks, heavy investment or permanent structural improvements had been made on it and its break-up was likely to lead to fall in production. The first three conditions were concerned with the efficiency of the farm and the fourth with the yield from the farm.

196t

Sldvdev Singh y. Thi State of Punjab

428

SUPREME COURT REPORTS [1963]

The Act contemplates the framing of rules

to give objective guidance to the Commission in carrying out its In evolving the marking system as provided in r. 31, duties. the discretion of the Commission was not fettered and its independence was not made illusory. So long as the marking system took into account what was required under s. 32K(i} (iv), that did not go beyond what was contemplated by the legislature. Schedule C did not fix an unattainable standard and was not a malafide exercise of the power to frame rules with the object of defeating the intention of the legislature, The standards of yields were not too high or unattainable.

The creation of Class B farms under r. 31(2) was beyond the provisions of s. 32K, and hence must be held tn be ultra vire& that section. The creation of Class B farms was so integrated with the whole of Rule 31 that it was not possible to excise Class B farms only from that rule and leave the rest of the roile unaffected; therefore the whole of r. 31 along with Schedules B and C must be struck down as ultra vires the provisions of the Act, particvlady s. 32-K.

There was nothing in

the Act to show that once an efficiently managed farm was taken out of the provisions of s. 32-A on the advice of the Commission, the State Govern ment could, later on, cancel the exemption and apply s. 32-A to it, and, hence, r, 31 (3) must be struck down as ultra vire& the Act.

The proviso tor. 31(4)(b) inasmuch as it obliged the Commission to apply Schedule C on a mathematical basis, must be struck down as goinl( beyond the rule-making power conferred under the Act. The Commission had to take into account the quality of the land, natural calamities, and the rotation of crops while determining the yield from land. Ruis 3 I must therefore be struck down as a whole. ORIGINAL JuRISDICTION :-Petitions Nos. 261

and 365of1961.

Petitions under Art. 32 of the Constitution of

India for enforcement of Fundamental Rights.

O. K. Daphtary, Solicitor-General of lrulia, K. P. Bhandari and R. Gopalakrishnan, for the petitioners (in Petn. No. 261/61).

...

3 s.c.R. SUPREME COURT REPORTS

429

K. L. Goshin and K. L. Mehta,

petitioners (in Petn. No. 365 of 61).

for

the

s. M. Sikri, Advocate-General for the State of Punjab, N. S. Bindra and P. D. Menon, for the respondentli.

1982

Shi•ieo Sinzh v. Th' Stale of PunjaG

1962. July 27. The Judgment of the Court

was delivered by

·

Wan&hoo J,

W ANCHoo, J.-These two petitions raise a question as to the validiy and constitutionality of r. 31 framed under the Pepsu Tenancy and Agricul tural Landt Act (Act No. 13 of 1955) as amended by Pepeu Act No. 15 of 1956, (hereinafter referred to as the Act) and will be dealt with together. The attack: on the rule is practically siinilar in the two petitions and therefore we shall only give the facts in Petition No. 261 to understand the nature of the attack. The petitioners in Petition No. 261 are landownere ia village Dhamo Majra, District Patiala, in the State of Punjab. They are running an agri cultural farm on a, mechanil'led scale and the area of the farm measures 4-21 acres. This area is a compact block of 11md and it ia said that some part of the area is potentially of high productivity wh~raas other area is of inferior quality and less produc. tive capacity by reason of the presence of alkaline patches of soil therein. The land was originally scrub jungle and was uneven and exten sive reclamation was carried on by the petitioners a.t heavy cost. They spent a large amount far terracing and the land, constructing bundhs, water channels, approach roads and in standardising the area of the fields. Two wells were constructed for providing irrigation&! facili ties and the petitioners have their own electric sub station for the purpol'le. They have also construc ted manure pits and have made permanent structu ral improvements in the shape of construction of roads, servant quarters, tractor sheds, cattle-sheds

levelling

1962

Shfr1dev Sineh v. The State of Panj•b

Waneho3 J.

430

SUPREME COURT REPORTS

3 S.C.R,

and stores, and have in all incurred expenses over rupees three lacs for all these purposes. The peti tioners are carrying on farming on the basis of scientifio cultivation practices, sowing practices and manure practices and because of the use of modern techniqne the overall yield per aore is very high keeping in view the fertility and nature of the soil.

IV-A

On March 4, 1952, the Act wa.s enacted. It was amended on October 30, 1956 and Chaps. IV-A and IV-B were introduced therein. The petitioners have not challenged the constitutionality of these two chapters and their attack is only on r. 31 framed under the powers conferred on the State Government under these chapters. The scheme of Chap. is to provide ceiling on land and s. 32-A thereof fixes the permissible limit of land which can be owned or held by any person iis landowner or tenant under his personal cultivation. ''Permissible limit" is defined in s. 3 of the Act and means "thirty standard acres of land and where such thirty standard acres on being converted into ordinary acres exceed eighty acres, such eighty acres". A "standard acre" is defined in s. 2 (1) as ''a measure of land convertible with reference to yield from, and the quality of the soil, into ordinary acres according to the prescribed ~cale''. Section 32-B prescribes for returns by the person having land in excess of the ceiling. Section 32-D provides that the Collector shall prepare a draft statement in the manner prescribed showing, among other parti culars, the total area of land owned or held by a person, the specific parcels of land which the land owner may retain by way of his permissible limit or exemption from ceiling and also the surplus area. Section 32-E provides for the vesting of the surplus area in the State Government. Section 32F gives power to the Collector to take posseassion of the surplus area. Section 32-G provides for /rinciples for the of payment of compensation and seo. 32-

y

SUPREME COURT REPORTS

3 s.o.R. disposal of the 1111rplus area. Then comes s. 32-~ (1) with which we are ma.inly concerned and the relevant pa.rt of it is in these terms:-

431

1961

Shiwdev 6ingh v. The Stat1 of Pnnjab

'

"32-K (1)-The provisions of section 3?A shall

not apply to-

...

efficiently managed farms which consist of compact blocks on which heavy investment or permanent structural im provements have been made and whose break-up is likely to lead to a fall in production;

(i)

(ii)

(iii)

(iv)

(v) (ui)

Section 32-P which is in Chap. IV-B providea for the establishment of a Commi11sion called the Pepsu land Commission (hereinafter referred to as the Commission). and sub-ss. (4) and (5) thereof are in these terms-

"( 4) Subject to the provisions of this Act and in accordance with any rules which may be made by the State Government in t.his behalf. it shall be the duty of the Com mission to-

(a) (b) ( c) advi!lo

the State regard to exemption ceiling in accordance of section 32.K.

Government with of lands from the with the provision

•

432. SUPREME COURT .REPORTS (1963]

1962

''(5) The advice given by the Pepsu Land .

S/,ivtlev Singh v. Thi Slate •f Punjab

~ Wcnehoo J.

Uommission under clause tc) ofsub-sectiori ( 4) shall be binding on the State Govern ment and notwithstanding anything in section 32-D no final statement shall,· in a case is claimed under scotion 32:K be published unless such advice is included therein."

in which exemption

Section 52 gives power to the Stat.e Government to frame rules to carry out the purposes of the Act.

'r ..

By virtue of the power conferred on the f:tate G'overnment to frame rules, Rules were framed in March 1958 to carry out the purposes ·of the Aot. We are concerned in the present petitions only with rr. 5 and 31. Rule 5 read with Sch. A provides for conversion of ordinary acres into standard aeres and r. 31 lays down how the exemption of eflkien- tly managed farms shall be determined,· Shh-rule (I) thereof provides that if any person wishes to claim exemption from the ceiling under cl, (iv) of sub-s. ( 1) of s. 32-K of the Act, he . shall form XI to the also furnish Collector required through other forms prescribed under the Rules. that the Commission (2) Sub-rule the manner provided in shall assign marks in sub·r. (4) in order to decide whether it is a farm is efficiently managed and consists of which compact blocks on which heavy investment struc- tural improvements have been made and whose break-up is likely to lead to a fall in production; following classification the and of farms:-

information in alongwith

further makes

information

lays down

·,

'

;.

"Class A : If it is awarded 80 per centum

or more marks:

Class B : If it is awarded 60 to 80 per

oentum marks .

•

I

Shlvtlev Singh v. The Sta/1 of Punj<1 i

Wanchoo J,

I

a s.o.R.

SUPREME COURT REPORTS

. 433

Class C : If it is awarded Jess than 60 per

centum marks."

·

·

It is further provided that a class A farm shall be deemed to be an efficiently managed farm and fifty per centum of the area under a farm of Class B shall, subject to the choice of the landowner, be deemed to be an efficiently managed farm and that ·no area under a farm of class C shall be deemed to be an efficiently managed farm. Sub-rule (3) further provides that '•the above classification of farm shall be revised by Govrnment annually in . the months of Jannuary and February, and if any · efficiently managed farm ceases to be so, the exem• ption granted in respect there of shall, subject to to the other provisions of the Act, be withdrawn by Government''. Sub-rule ( 4) (a) provides that "the maximum marks to he awarded to a farm, for the purposes of classification, !!hall be 1,000'' and sub-r. l4) (b) provides that the features for which marks are to be awarded are those given in Sch.Band marks shall be awarded for each feature subject to the maximum marks noted against each in that schedule, provided that in allotting marks for "yield" the Commission shall apply the standard yields given in· Sch. C. From XI lays down the parti culars and there are two Schs. B and C. Out of the tot.'ll of 1000 marks, 500 marks are prescribed for various features mentioned in items I to IX of Sob. B while 500 marks are for yield. The land in the former Pepsu tltate is divided into four classes for the purpose of Sch. B. viz., mountaneous, sub-montane central. plains and South-eastern districts. Schedule C prescribes average yield in matmds ofvarion"I crops per acre for irrigated and · · unirrigated lands.

·

This in .. brief is tho scheme of Act and r.32 fra med thereunder. The petittoners' case is that the Commission is iaquiring into the petitioners' claim of

196B

Slfotleo Singh v. 61 Stat• of Punjab

Jf' a11oh10 J.

434

SUPREME COURT REPORTS [1963]

exemption under s. 32 K (I) (iv) of the Act and in doing so it is bound to follow the requirements of r.31 in addition to the fulfilment of the conditions in ol. (iv) of s.32-K (IJ. The petitioners contend that the standards of yields prescribed· in soh. C under r. 31 are arbitrary, obnoxious, unreasonable, hypothetical, completely unrealistic and unattaina ble in any modern farm and are repugnant to the provisions of the Act.. It is further contended that the system of marking whioh has been evolved under r. 31 is completely alien and foreign to the Aot. Relian.oe is placed on behalf of the petHio ners on the observations of the Sub-Committeee ·set up by the planning Commission on the problems of Re-organisation, panel on land Reforms for the purpose of suggesting standards of efficient cultiva tion and management and sanctions for the enforc ement of standards, when it said that though "an obvsious test of good husbandry may appear to be the comparative yield of cropi, or the gross produce per acre", the Sub-Committee was of the opinion for various reasons which it mentioned that "the yield varied with a number of factors whose effects cannot be measured quantitatively, such as location the fertility and texture of the soil, the vagaries of the climate, the incidence of epidemics etc. whieh are beyond the control. of the farmer". The Sub Committee was therefore not prepared to apply the test of yield as the sole test of good husbandry. The :petitioners further allege that the yield fixed by Sch. C showed great disparity between it and the actual average produce per acre for different orops in different States of India and in different districts of Pepsu, and obviously results in discrimi rt is also · urged that the standards fixed nation. by Sob. C were nnattainable and therefore the petitioners' olaim for exemption under s. 32 K (1) (iv) would be seriously jeopardised ifr. 31 is applied. It is contended that the rule goes beyond the power

'r -

·,

1962

"·

S!tiuliev Singh

Tiie State of Punjat

Wan~ht• J,

3 S.C.R.

SUPREME (.,"OURT REPORTS

435

conferred on the State Government under s. 32 K a.nd wa.s therefore ultra vires the Act. Further, it is urged that r. 31 along with the two t'!chedules was a colourable piece of legislation and the object of framing it was to defeat the purpose of the Act with the intention of seeing that no exemption may be granted even though the legislature intended under s. 32 K ( 1) (iv) to grant exemption to efficie It is also urged that by ntly managed farms. making r, 31, the State has fettered the judgment and discretion of the Commission which it could not do under the Act. The petitioners therefore pray that r. 31 should be struck down as ultra vireB of the Act and also a.s unconstitutional and the. respondents should be directred not to give effect to r. 31.

-·

The petitions have been opposed on behalf of the State of P!Illjab which is successor to the former State of Papsu and it-has been urged that r. 31 does not go beyond the rule making power conferred on the State Government and is intra. vires the Act and is not unconstitutional. We do not think it necess ary to set out in detail the points raised in the rep ly of the State, as they will appear from the discu . ssion in the later part of this judgment. Suffice it to say that the Sta.te has challenged all the grounds raised on behalf of the petitioners in support of their case that r. 31 is ultra vires the Act and uncon• stitutional.

· In order to determine the question raised in these petitions, it is necassa.ry to refer to the scheme of Chapter IV-A of the Act and the implications of exemption provided under s. 32 K( 1) (iv). Chitpter IV-A is obviously a measure of land reform and is intended to provide for equitable distribution of· land and with that object s. 32 A provides for ceil ing on Jarid holdings by an individual. The con1t· itutionality of the Act, as we have already sa~d, has

1962

Shivtl1v Singh v. I ~The Slate of Puojob

Jt ar.choo .[.

i I !

436

SUPREME COURT REPORTS [1963) .

restrictions on

not been challenged and therefore it must be held that the provisions of Chap . IV-A when they provide for ceiling on land and disposal of surplus land are reasonable the right of persons holding land. Seotion 32 K (1) however provides that the provision asto ceiling oontained in s. 32-A shall not apply to oertain type of lands and one of those types is mentioned in cl. (iv) thereof (namely, efficiently managed farms which consist of compaot blocks on which heavy investment.! or permanent structural improvements have been made and.whose break-up is likely to lead to a fall in production). Therefore, before any farm can claim that the ceiling as contained in s.32-A shall not apply to it, it has to comply with the conditions in cl. (iv). These condi tions which may be deduced from cl. (iv) are :-· ·

( i)

that the farm should be efficiently managed;

(ii)

(iii)

it should consist of compact

that blocks;

that heavy investment or permanent structural improvements must have been made on the farm; and

(iv)

the break up of the farm is likely to lead to a fall in production.

·

Before therefore a person owning or holding a farm can claim exemption from the ceiling provid ed in s. 32 A he has to show that his farm complies with all the four conditions mentioned above. In particular, before a person owning or holding a farm oan claim that s. 32 A should not be applied in his case he must show that a break up of the farm is likely to lead to a fall in production. It ·will thus. be clear that the first three conditions under s. 32 K (1) (iv) are concerned with the efficiency of the farm whioh has to be taken out of s. 32 A while the fourth oondition is conoerned with the yield from

1962

Shivd1v Sing!& . v. The Stale if Pun/<11

w .. ncho.J.

3 S.C.R.

SUPREME COURT REPORTS

437

the farm. Therefqre, whatever may have been the view of the Sub:Committee of the Planning Comm issiOn with respect , to yield as a criterion of good husbandry, there is no doubt tha.t s. 32 K ( 1) (iv) requires th it in considering whether the ceiling pro videti in s. 32A shall he applied to it particular farm, its yield must be taken into consideration and the farm can only avoid its break up if the result of the break up is likely to lead to a fall in production. There can be no doubt therefore that in order that a farm may get. the benefit Of s. 32K (I) (iv) it must satisfy the four·conditions set out above.

The Act has provided by s. 32 p that the quest ion whether a farm should get the benefit of s.32 K (I); (iv) will be decided by the Commission, Sub section ( 4) of s. 32p lays down· that it will ha the duty of the Commission, subject to the provisions of the .Act and in accordance with the Rules which may be made ~y the State Govbrmnent, ·to advise the St!tte Government with regard to ~xemption of lauds from the ceiling in . accordance with the pro visions of s. 32K. Sub-section ( 5) provides that the advice given by the Commission shall be binding itself on the· State Government. Sub-section (4) shows, in addition to the general power of the State Government . to frame rules under s. 52 for carrying . out the purposes of the .Act, that the State Govern ment has the power to frame rules for the guMance of the Commission in carrying out· its duties under s. 32p (4} (c}. Rufo 31 has obviously been framed with that object. The ·petitioners however attack the.marking system evolved under that rule on the ground that this- is completely alien and foreign to the .Act. We cannot agree with this contention. It is true that the Commission would have to decide whether a farm is entitled to .the benefit of s. 32K. If Iio rules had been fr1.uned the matter would have been left at iarge for determination. of the Commiss ion to the best of its ability. It is true that the

'

1982

Shiritlev Sinfh v. 17i1 State of Punjab

WanchoaJ.

438

SUPREME COURT REPORTS [1963]

Commission consists of a Chairman who is or has been a Judge of the High Court and two members to be nominated by the State Government having special knowledge or pTactical experience of land or agricultural problems, even so we do not think that the Act did not contemplate framing of rules which will give certain objective guidance to the Commission in carrying out its duties. We do not think that in evolving the marking system as pro vided in r. 31 the Commissions dieoretion has been fettered and its independent judgment made illusory. So long as the marking 1ystem takes into aocount what is required under s. 32 K (l) (iv) in order to claim exemption from ceiling it cannot be said that the marking system that has been evolved is some thing beyond what was contemplated by the legis lature. A perusal of Soh, B. tor. 31 shows that items I to IX which deal with lay-out, cultivation practices, sowing practices, manure practices, soil conservation practices, development of irrigation facilities, plant protection measures, keeping of.re cords and miscellaneous items (like quality of dra ught and milch animals and their maintenance, arrangement for storage of produce, small orchards, home poultry farm, apioulture, sareculture, parti cipation treatment in co-operative a1sociations, with labour eto.) are all meant to evaluate the first three conditions ins. 32 K (1) (iv) as indicated by us above. We have been pointed out only one item in Soh. B under head "lay-out" which seems, to be out of place and which carries 9 marks _out of 500 marke. That item is voluntary consolidation and the criticism on behalf of the petitioners is that so long as the area is compact it is immaterial that compactness has been ·achieved, whet how this item her voluntarily or otherwise. Barring all the other items appear to carry out the conditions mentioned by us above first

three

1962

Shiudev Singh • v. Ths Stale of_l'unjt>i

Wamhoo J,

· 3 S.C.R.

SUPREME COURT REPORTS

439

and therefore the Commission will have a 1tandared when it considers the question of exemption of farms. It has full discretion to evaluate the various features set out in Sch. B items I to IX and has full power to give such marks as it thinks fit. I ca.nnot therefore be said that by providing the marking system in Sch. B the rule has in any way fettered the discretion and judgment of the Com• mission, and affected its independence. Further item X in Sch. B is with respect to "yields" and carries 500 marks out of a total of 1000 marks. Thus the system behind Sch. B is that half the total number of marks is provided for the firlilt three conditions and the other half is provided for the yields. We have already mentioned that the fourth condition under s. 32 K (l)(iv) shows that one of tl1e main qualifications for exemption from ceiling under Iii. 32 K is that the production of the farm should be such that its break-up shall lead to a fall in production. In _the circumstances we do not think that it can be aaid · that the allotment of half the total number of marks to yields in .;ch. B is in any manner contrary to the intention of the legislature. We cannot therefore accept the con tention of the petitioners that the marking system which has been evolved in Soh. B is in any way fore i ~n to the purposes of the Act or in any way fails to carry out the object behind s. 32 K (l)(iv). The marking system only gives guidance to the Com mision in the task assigned to it by s. 32 p (4}(c). The attack on r. 31 on the ground that the marking system evolved therein is foreign to the purpose of s. 32 K (l)(iv), must fail.

The main attn.ck of the petitioners however is. on ~ch. C. This Sc~edule prescribes the average yield m maunds of various crops for irrigated and unirrigated lands for various districts and tehsils ?f the former States of Pepsu with which the Act is concerned. Rule 31 provides that in giving

"

Shiridev Singh

••

The S~atl o.f Punjab

w~nehoo J.

' -1

440

SUPREM]ij COURT REPORTS (1963]

marks for yields the Commission shall apply the standred yields given in Sch. C. '.I he first · con ten· tion of the petitioners in this behalf is that the standards of yield hav.e been fixed so high that they are unattainable and this suggests that the intention of the framers of Sch. C. was to make the yields so high that no farm could reach that standard with the result that the intention behind s. 32 K (l )(iv) of exempting efficiently managed farms should be defeated. In effect this contention is a charge of'mala /ides against the State in framing Sch. C with the object of nullifying the intention of the legislature contained in s. 32 K {I )(iv). Schedule C contains i:3 crops, the yields of which have been prescribed under two heads, namely, (i) irrigated and (ii) unirrigated. Learned counesl for the petitioners however, concentrated on_wheat to ehow how the standard prescribed is so high and arbitrary as to be unattainable and we shall there forf') consider the case of wheat. It is however . urged on behalf of the ·petitioners that practically · the same arguments will apply to the other crops we shall assume for present purposes that what applies to wheat will also apply to other crops. The stan· dard fixed for wheat for practically the entire area of the former State of Pepsu (except Kandaghat and Nalagarh, assessment circles Pahar) ·is thirty months per acre for irrigated and 10 maunds for unirrigated lands. It is said that this is an unat tainable standard and therefore Sch. C has been· framed with the idea of breaking up the efficiently completly managed of the legislature otherwise, In this contention reliance. has been placed on certain produce figures for that area by either side. Before however we consider those figures. we may refer tor, 31 (2) whice divides the frams into three cattigories according to _marking, We this division la.ter in another con• she.II refer to

intention

farms

spite·

the

of

in

'

1962

Shivdev Sindh v. Thi State nf Punjab

Wancho1J,

-.-!

-(

3 S.C.R. SUPREME COURT REPORTS

441

though

unirrigated

(2). Therefore,

nection; that in !;mt here it may be remarked order that· an A class farm be deemed under r. 31 (2) to be an efficiently managed farm that requires only . 80 per ceutum of t.he total marks, so that when we apply the yields fixed under Sch.O we have to scale them down to 80 per centum, for even if yields are at 80 per centum the farm will be wholly entitled to exemption under . r. 31 the yields fixed is 30 maunds for · irrigated land ·and 10 mam;ids for the land . in theory, praotical effect of r. ~l (2) is that if a farm produces 24 . maunds per acre of . irrigated land and 8 maunds per acre of unirrigaied land, it will pass the test prescribed by s. 32K (I) (iv) we have ·therefore to compare this yield with the other figures .. which have been brought to our notice by either side, to decide whether the yield fixed in Sch.C has been deliberately fixed so . high as to be - unattainable with the object of mak~ (iv) nugat_ory. ing the provision of s. 3~K (1) The burden of proving this and so establishing the mala fiiles of the f?tate Government is on· the peti• tioners.

·

..

Before we consider these figures we may dis· pose of a. shor,t point as to the date on which valu ation under s. 32 K wiU have to be made. Section 32 K came into force on October 30, 1956 and it is obvious that · it is as on tha.t date that the Commis sion will have to decide whether a particular farm complies with the requirements of s. 32 K (1) (iv) and should therefore be exempted from the opera in e. 32A; The tion of statistics that have been provided .to us however are of a later period. We propose to consider them but it willalways have to be kept in mind that the decision of the Commission has to be on the facts as they stood on October 30, 1956, so far as s. 32 K

the ceiling provided

_ (1) (iv) is concerned.

-

y \-

J961

Shivdt'V Sin:h v. Th~ Stale o/ Punjai

Waru:ht11 J.

-

442 SUPREME COURT REPORTS [1963]

The Board of Economic Inquiry Punjab (India) publishes every year a bulletin on "Farm Accounts in the Punjab" and this shows that the average yield in maunds for Punjab as a whole in the year 1956·57 of wheat on irrigated land was 13.46 maunds per acre and on unirriga.ted land 10.68. The samfl figures for 1957 -58 were 14.57 and 10.99 and for 1958-59, 14.65 and 10.1. The same figures of Central Zone, P1mjab area were 16.29 .and 3.67 for 1956-57; 12.27 and 5.53 for 195"7- · 58 and 15.29 and 11.12 for 1958-59. Taking the matter districtwise, the same figures were 15.95 and B for Ludhaina District for 1956·57 and 15.83 and 6.15 in 1958-59. For Sangurur district which in the former state of Pepsu the figures werel5.33 and 6.41 for the year 1958-59. These figures seem to show that so far as the standard fixed in Sch. C for unirrigated land is concerned it cannot be said to be necessarily unattainable, for the standard is 10 maunds which when reduced to 80 per centum comes only to eiget maunds. As for the irrigated the' standard is 30 maunds which when area, reduced to 80 per centum comes to 24 maunds. There is no doubt that the standard for the irri gated area is comparatively very much higher than the averages in the bulletin mentioned above. In reply however the State relies on certain yields which are certainly very much higher. Unfortuna· tely, however, we cannot attach much value to these yields for they were obtained in crop com petitions and these yields were for irriga.ted lands varying from over 32 maunds to over 66 ma.unds per acre. One of the competitors who showed an yield of over 44 maunds per acre has aworn an affi davit to show how these yields in crop competition are arrived at. According to him, the area selec ted is the best one acre of land which is specially intensively prepared

the purpose.

It is

for

'

19/ll

Shiod11 Singh v. Thi St.ate •I Pu.jab

Wanc111.J,

3 S.C.R.

SUPREME COURT REPORTS

443

ploughed and abnormal doses of manure and fertli sers are put in it. The irrigation also is twice tile normal irrigation. Further at the time of harvest· ing only one Biswas of land is out. Out of this, only one bundle of crop out is threshed and out of the yield obtained from this bundle, the yield of one acre is computed. Obviously, the yield obtain ed in such a competition is not of such value for purposes of comparison. But this however does not dispose of the matter. It must be remembered thats. 32 K (1) (iv) postulates that only those farms would be exempted whos.e break-up would lead to & fell in production. rhis clearly implies that if the farm in question is only producing what the a.verage yield is in the whole of the Punjab its break-up would certainly not lead to a fall in pro duction: Therefore, in order that a farm may comply with the condition that it_s break-up would result in a fall of production it is obvious that its production must be higher than the average yield for the whole of the Punjab. We have already pointed out that so far as unirrigated land is con cerned the fixing of the standard at 8 maunds per acre does not appear to be too high in view of the figures to be found in the bulletin published by the Board of Economic Inquiry Punjab (India), even though the figures relates to the period a.fter October 30, 1956. Aato the irrigated area it seems that the average production ha.a reached up to about 16 maunds per acre. The standard fi:r:ed in Sob. C is 30 maunds which when reduced to 80 per centum comes to 24 maunda. On the materials that have been provided by either aide on this record, we would hesitate to say that the standard of 24 mauoda per aore for irrigated land of the best quality would be t.oo high. Therefore, if the stand ard fixed in Sch. C is to be taken to apply to the beat quality irrigated land and that standard is reduced to 80 per oentum in view of r. 31 (2), we

i

444 SUPREME COURT REPORTS [1963)

196B

••

ShitJd1v Singh

The State of Punjr.~

WanchovJ.

would . hesitate to say that Sch. C had fixed an un· attainable standard and so was a mala fide exer cise of powor to frame rules with the object of defeating the intention of the lagislature contained in s. 32 K ( l) (iv). We have already said that we propose to t"Lke the figuriis supp lied to us with .reference to wh1>at only and we shall assume, as the learned counsel for the petitioners ask us to assume, that. what is true about wheat would be equally true about other crops. We would therefore hesi· tate in the case of other produce also to say that the yield are too high and unattainable, if they are taken to be the yields fJom the best quality irriga· ted land, in. one case and the best quality unirriga. ted land in the other. The contention therefore that the Schedule has been framed mnla fide in the sense mentioned above niust fa.ii, as the petitioners to estiiblish that. But this in our opinion does not end the matter and we shall now . proceed further to deal with other aspects which have been urged before us.

· have failed

t

\-

y

'

,

Rule 31 ( 2) provides for the criterion for deciding whether the . farm is efficiently managed etc. ·and has created three classf'B of farms, namely A, B and C, depending upon the marks awarded, 80 per c_entum or more in the case of class A, 60 per centum or more but below 80 per oentum for It class B, and below 60 per centum for class C. is forthu provided that an A class farm shall be deemed to be efficiently managed while 50 per centum of the area under a fa.rm of class B shall, subject to the choice of the landowner be deemed · to be efficiently managed but farm of class C shall riot be considered efficiently managed .. Now the contention on behalf of the petitioners is that this division into three classes is beyond the purview therefore ultra vires. Seo of · s. 32 K and , tion 32 K, as we have already indicated, lays down

is

1961

Shivrlev Sin4h v. The State of l'unjab

Wane.loo J.

I

3 S.C.R.

SUPREME UTR REPORTS

445

that provisions of s. 32A shall not apply to efficien• tly managed farms etc. so that when the Comm is· sion considers the question wh1:1ther a particular farm is efficiently managed under s. 32 K it has - only to decide one of two things: namely, whether ·the farm is efficiently managed etc. or is not effi ciently managed .. If it is efficiently managed, the provisions of s. 32 A shaH not apply to the entire farm; if on the other hand, it is not efficiently managed,. the provisions ·of s. 32 A will apply to the entire farm. There is no scope in s. 32 K for the creation of three classes of farms, as has been done by cl. (2) of r. 31. In other words there is no scope for the crea.tion of class B farms in the rule on .the terms of s. 32 K. The rule therefore insofar as it creates an intermediate clai!s of farms, half the area of which is deemed to be efficiently· is clearly beyond the provisions of managed s. 32 K (1) (iv). The creation of class B farms of r. 31 (2) . being beyond the provisions of s. 32 K must be held to be ultra vires that section. The question then arises whether in· view of the crea tion of class B farms by r. 31 the whole of that rule-must go. ·we are of opinion that the crea tion of class B farms is so integrated with the whole of r. 31 that it would not be possible to excise class B farms only from that rule and leave the rest of the una:ff'ected. ·It is impossible to say what the form of r. 31 would have been if the rule making authority thought it could not provide for class B farms. We are therefore of opinion that the whole of r. 31 along with Schedules B and C must faH, as soon as it is held that the crea tion of class B farms under th.e rule is beyond t.he rulemaking power. This is one ground on which r. 31 must be struck down as ultra vires of the provisions _of the Act, particularly s. 32 K.

. '

Then comes r. 31 (3) which provides that the classification . made under r. 31 (2) shall be

1961

••

Shlvd" gingh

The Stat1 vj PiJnia'fJ

Wanoku J,

\

\.

y

446

SUPREME COURT REPORTS (1963]

to revision

revised by (}overnment annually in the months of January and February. The attack on this provi sion is two-fold. In the first place, it is conten leaves the revision of classifi, ded that r. 31 (3) cation of farms entirely to Government-at any rate there is nothing in r, 31 to suggest that the Government is bound to consult the Commission before revising the classification of farms. Secon dly, it is urged that there is nothing in s. 32 K or any other provisions of the Act to suggest that once a farm is taken out of the provisions of s. 32 A by the application of s. 32 K that exemp tion is open thereafter. We are of opinion that there is force in the second cont~ntion, though not in the first. Section 32 p ( 4) and (5) lay down that the State Government will be advi sed by the Commission with .regard to exemption under s. 3l'K and the advice of the Commission would be binding on the State Government. Rule 31 ( 3) as it stands does not howover provide for ad vice by the Commission thereunder. It is also not clear whether the Commission under s. 32 is a permanent Commission. It is however urged on behalf of the State that r. 31 (3) must be read subject to the Act and therefore if the Act requires that the Commis sion must be consulted in the matter of exemption the Government will be bound to consult the Commissiol'! · even when it proceeds to revise the classification under r. 31 (3). We accept this· submission on behalf of the State and hold that though r. 31 (3) does not specifically provide for consultation with the Commission at the time of revision that rule must be read . subject to s. 32 p (4) and even at the time of revision the Govern ment is bound to take the advice of tne Commis sion and is bound to act accordingly.

The other contention however appears to have force, Section 32 K lays down that the pro visions of s. 32 A will not apply to efficiently

.,,.

1969

Sbiv(•JJ Sipgh

'

\'.' The Stal1 of Punja&

'

Wanchoo J.

38.C.R.

SUPREME COURT REPORTS

447

relating

it. There

managed farms etc. Once therefore it is held that a. fa.rm comes withins. 32 K (I) (iv) the provisions of s. 32 .A to ceiling will not apply is nothing t in Chap. IV-A to to suggest 'that once an efficiently managed farm is taken out. of the provisions of s. 32 A on the advice' of 'the Commission it can be subjected again to those 'provisions. Nor have we found any thing in the Act which gives power to the State Goverimient to subject a fa.rm to which s. 32 A does not apply in view of s, 32 K to the provision of s. 32 A later. We realise that it may be possi ble for .a farm which was efficiently managed when the Act came into force in 1956 to be so mismanaged later that it no longer remains an efficiently mana• ged farm within the meaning of s. 32 K (I) (iv) and it does "seem reasonable in those circumstances that the provisions of 8. 32 A.should apply later to such a mismanaged fa.rm. But that in our opinion has not been provided in the Act itself. Once the farm as it was'on October 30, 1956 gets the benefit of s. 32 K (1) (iv), such a provision in our opinion cannot' be made by a rule, for in that case the rule would be going beyond the purview of the Act and would be Ultra vires. That is another reason why r. 31 (3) must he stl'.uck down as ultra vires of the Act.

'1

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·

Besides the on attack on Sob. C based on fixing unattai~abl~ standars mal.a fide, the Schedule is further attacked on the ground that it goes beyond the intention behinds. 32 K (iv) inasmuch as it provides for a mathematical formula irrespective of various other considerations which have a great play in the ma~ter of yield. We have already poin ted out th.it Sch; C only provides for two classes of Janis, namely, irrigated and unirrigated. Further the pl'.Oviso tor. 31 (4) (b) lays down that in allotting marks for yields, the commission shall

(1)

•

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448

SUPREME OOURT REPORTS (1963J .

-

'

'

Shfvd1u Singh v. '1111 Slat1 of PunJab

·-Wa11ollHJ.

-

apply the standard yields given in Sch.C. This means that if the yield of a particular farm of · irrigated land is, for example, 15 maunds of wheat,' per acre, the Commision would be bound under . the proviso to give 80 per centum of the marks provided for yields in Sch. B i.e. the. Commission will have to award 250 out of 500 marks to such a farm. Now if land whether irrigated.or unirrigated was of one quality and if there were no other factors to be taken into consideration in judging thll yield in a particular area the application of a mathematical for-mula would have been justified. But there is no doubt that irrigated and unirrigated lands are not all of the same quality and that quality of land does affect production. There are other factors also to which we shall later refer which have to be taken into account in considring the yield; but those factors have all . been ignored in Sch.C. Turning to the quality of land, we find from Sch.A to the Rules, which has been framed with respect to r. 5 for conversion of ordinary acres into standard acres, that there ·are ; eight qualities of land in the State, of which five are under the head "irrigated'', (namely, · Ohahi, Ohahi-Nehri, Nehri perennial, Nehri non-perennial and Abi) andthree under the head "unirrigated" (namely, Sailab•,Barani and Bhud). The higest quality is Nehri perennial and it is marked as 100 meaning thereby that one ordinary acre of Nehri perennial is equal to one standard acre. The lowest quality of irrigated land is Nehri non-perennial which is marked as 75, meaning thereby that four ordinary acres of Nehri non-perennial are equal to three standard acres. This means that the yield of the · lowest quality of irrigated land would be 25 per _ oentum less than the best irrigated land. Now if the standards fixed in Sob. C are with reference to the best land, the best irrigated land is expected to pro d11ce SO rnaunds minus 20 :per centum i.e, 24 rnau!lgs,

1961

ShitHln Singh v. The.State of Punjab

WonchooJ.

~

3 S.O.R.

SUPREME COURT REPORTS

449

~The lowest quality of irrigated land will be exp· oeted to produce 22-! maunds (i.e. 75 per centum of the best land) minus 20 per centum, equal to 18 maunds. J.·his shows that unless some account is taken of the quality of land, Sch.C is bound to work harshly on those farms where the quality of ,the irrigated land is of the lowest type. It may be said, however, that Sch. C is based on averages. Even if that i& so, there is bound to be inequality where all the irrigated land of the farm is of the lawest quality. The same applies to unirriga.ted land. The best unirrigated land is Sailabi, which has 62 per centum yield a.s compared to the Nehri perennial, meanir.ig thereby that roughly 10 acres of Sailabi land are equal to six standard acres. ~ Barani land is rated at 50 per centum of the best and thus two acres of Barani land will be equal to one standard acre. Bhud is the worst and rated at 2_5 per centum and four acres of bhud are qual to one standard acre. Thus if the vlauation given in Sch. A. is accepted, bhud is only half as productive as barani .;:i.nd two-fifths as productive as sailabi. -'Therefore when Sch.C for to ·quality; it is unirrigated land without regard bound to work inequality between farms and farms. It has been urged on behalf of the state that the Commission would be entitled to take into account these differences in quality. There is however noth ing in r. 31 which permits the Commission to take into account this difference in the quality of land. The proviso tor. 31 (!) (b) definitely lays bown that in allotting marks the Commission shall apply the standard yield given in Sch. C, so that the Co mmission is bound to apply those yields in every case and there is nothing in r. 31 which permits the Commission to take into account the difference in qu&lity offand. Now whens. 32 k (l)(iv) read with s. 32p provided for the appointment of a Commiss ioq to ~dvise on the question of exemption unqef

fixes one standard

1968 .

Bhivde1 Sintli· ··· v. TM· State of .Ptidija~ ·

Wanchoa J.,

450· SUPREME COURT REPORTS'[l963J·

~ ~

s. 32 k (2) (iv), the intention of the legislature obvi' ously was that the Commission will take into account a.11 factors whioh shou Id be properly taken into• aocount in giving its advice. Quality of land is one " suoh factor whioh should be properly taken into ac' count by the Commission but as the proviso to r.31 (4) ,. stands, the Commission is bound to apply Sch: C on a mathematical basis without consideration of other• · factors. We a.re therefore of opinion that the proviso · to r. 31 (4) (b) inasmuch as it obliges the Commission to apply Seh. Con a methematioal basis goes beyond the provisions of s. 32 k. It was certainly suggested in argument before us that it would be open to the Commission to take into account the difference in the quality of land. But there is nothing in the reply of the State to suggest this and we cannot acoept ' what is suggested to us in argument in the face of the proviso tor. 31 (4) (b). The proviso therefore· - must be sturckdown as going beyond the rule-mak· ing power inasmuch as it is ultra vires the provisions of s. 32 K (1) (iv).

•

There are other factors whioh govern the yield • '

of land and these also have not been taken into account in r. 31. Tnese factors may be grouped under the head "na.tuarl calamities", as for exam· pie, pests, loousts, execssive rain, floods and drought. There is nothing in r. 31 which gives a disoretion to the Commission when applying the proviso to r .. 31 (4) (b) to to take these faotors, Obviously, the intention behind the provision in s.32 K{l) (iv) was that in evaluating whether a farm was efficiently managed, the Commission will take all these· factors which properly require oonsidera.tion. in the m ,tter of yield into acoount, It was however suggested th3-t th.; Commissson was entitled to take these factors into account when judging the matter of yields; but we find nothing in the reply of the

into account

•

'

t hibd;v Singh v The State of Punjab

Wanchoo J.

3 S.C,.R. r~SUPREME COURT REPORTS

t 451

~ --~ • State Government to this effect and in any ca!'le if the proviso tor. 31 (4) (b) is interpreted as it standf! to take it may not be pos'3ible for the Commission • these factors into account when advising the State Government under s. 32 K (1) (iv). It' is not even clear whioh year before October ao, 1956, the Comm ission will take into account in ad vising the Govern- ' ment, whether a particular farm is entitled to the benefit.of a. 32 K (1) (iv). If, for example, the base year is one immediately preceding October 30, 1956, and if in that year there was some natural calamity, -the Commision_cannot take that into account and must apply Sch. C as the proviso to r. 31 4) ( b) seems to intend. The intention of· the legislature - , therefore behinds. 32 K (1) (iv) would be subverted ~ . . because of this proviso. That is another reason why , this proviso should be struck down as going beyond . -the intention Of the legislature ins. 32 K (1) (iv) .

-"

. Lastly, there is another factor which is also very relevant in the matter of yields, namely, the rotation of crops which requires all good f~rmers to leave some part of their lands follow by turns ·- for 81 <Whole·year in order that the fertility of the soil can be preserved. Again there is nothing in the proviso which allows the Commission to take into account this factor and make calculations only on the actual area of a farm which is cultivated and leave out of account such reasonable area as may not be cultivated in order to preserve the fertility or land on the principle of rotation of crops. As the proviso stands, the Commission is to apply Soh. C over the entire area of the farm with out ta.king into account the factor of rotation of crops which necessitates that some reasonable port ion of the land must be left fallow for the whole year in order to preserve the fertility of the soil. -:. Here again it is urged on behalf of the State in argument that the Commission can do so. But

1961

1Jhi1dsv Singh •• The St•tf •f Jtun;ab

WanchooJ.

452

SUPREME COURT REPORTs [1963j

~

again that is not to be found in the reply of th._. State and as the proviso stands it obliges the Commission to apply Sch. C to the entire area of a farm in order to judge whether it is an efficiently managed farm. This is therefore another reason why the proviso goes beyond the intention of the legislature contained ins. H2 K (1) (ivj.

' The proviso therefore to r. 31 ( 4) (b) must be be stm0k down as beyond the rule making power of the State Government. A.s soon as the proviso is struck down it would be impossible to work r. 31 properly; therefore, the entire r. 31 must fall on this ground also,

·

We therefore allow the petitions and strike

down r. 31 as uUra vires the Act and order that r.' 31 (along with Schedules B and C) shall not be given effect to by the State of Punjab and shall not be taken into account by the Commission in giving advice to the State Government under s. 32 P (4). The petitioners will get their costs from the Sta.te one se~ of hearing fee.

PetiUons allowed.

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