CIVIL APPELLATE JURISDICTION Special Leave Petition (Civil) Nos. 1671, 2631, 3322-23, 3904, 4418, 9796, 9127 of 1979, 6639-40, 6794, 5121-22 of 1978, 10403 of 1979, 3797 of 1980.
From the Judgments and Orders dated the 6-7-77, 19.12.77, 20.12.77, 20-4-78, 28-2-78, 4-7-79, 8-6-78, 7-778, 12-7-78, 9-8-79, 18-1-78 and 13-10-77 of the Andhra Pradesh High Court in Civil Revision Petition Nos. 1991/76 & 403/77, 1612/77, 1268 & 1275/77, 4436/77, 2571/77, 7175/78, 7174/78, 70 & 1907/78, 564/78, 1036 & 1126/78, 1686/79, 1387/77 and 2677 of 1977
WITH
Writ Petition No. 4789 of 1982
AND
Writ Petition No. 4703 of 1978
(Under article 32 of the Constitution of India) FOR THE APPEARING PARTIES
M.N. Phadke, G.V. Sastry and P. Rama Reddy.
A. Subba Rao, B. Partha Sarathi, T.V.S.N. Chari, B. Kanta Rao, K.R. Chowdhari, A.V.V. Nair, Mrs. V.D. Khanna and V.M. Phadke.
The Judgment of the Court was delivered by
MISRA J. This batch of special leave petitions and writ petitions arising out of proceedings under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (hereinafter referred to as the ’Andhra Pradesh Act’) is directed against the judgments of the High Court of Andhra Pradesh and raise common questions of law. They are, therefore, being disposed of by a common judgment. It will suffice to refer to the facts of Special Leave Petition No. 6794 of 1978, Chinnam Nagabhushnam and others v. State of Andhra Pradesh to bring out the points of controversy in these cases.
Chinnam Jaganmohanrao and Chinnam Sivaramprasad, petitioners Nos. 2 and 3 are the sons of the first petitioner, Chinnam Nagabhushnam. Petitioner No. 2 is still a minor but petitioner No. 3 has become major recently. The first petitioner and the third petitioner partitioned their property by metes and bounds by virtue of a registered partition deed dated 12th of April 1960 and since then they are in separate possession of the land falling in their respective shares. By a second partition deed dated 11th of April, 1969 the first petitioner and the second petitioner further partitioned the properties that fell to the share of the first petitioner in the first partition between themselves. On 10th January 1970 the third petitioner sold an area of 12.00 acres of Pangidigudem village to P. Pattabhi. On 10th of April 1970 he sold an area of 10.22 acres and 10.00 acres of village Pangidigudem under sale agreement Ext. A-9, for Rs. 80,000 to G. Veeraju and the vendee was put in possession. On 12th of June 1970 the first petitioner sold an area of 22.63 acres of Pangidigudem village to one B. Appa Rao under sale agreement Ext. A-12. Again on 16th of June 1970 the third petitioner sold an area of 8.00 acres of Pangidigudem village to B. Balaram Singh under sale agreement Ext. A-10.
The Andhra Pradesh Act came into force on 1st of January 1975 by virtue of a notification issued by the State Government. By April 1, 1975 all the three petitioners filed separate declarations in accordance with s. 8 of the Act on the footing that separated minor sons did not constitute a ’family unit’ and their holdings cannot be tagged with the holding of the father and that land transferred to outsiders either under agreement of sale or under gift deed should not be included in the holding of the petitioners. The Land Reforms Tribunal, Kovvur, however, treated the holding in question as the holding of the ’family unit’ on the finding that divided minor sons also constituted a ’family unit’, and the part of holding transferred to various persons either under agreements of sale or under gift deed formed a part and parcel of the holding of the ’family unit’. Accordingly, on 27th of September, 1976 the Tribunal declared that the ’family unit’ was in possession of excess land over the ceiling limit. The petitioners filed an appeal before the Land Reforms Appellate Tribunal. The Appellate Tribunal, in its turn, allowed the appeal in part. The petitioners still feeling aggrieved filed a revision to the High Court of Andhra Pradesh. The High Court dismissed the same on 7th of July, 1978. The petitioners have now filed the special leave petition to challenge the order of the High Court.
Shri M.N. Phadke appearing for the petitioners has raised the following contentions:
1. A separated minor son is not a member of the
’family unit’ and, therefore, his property cannot
be tagged with that of his father.
2. Some of the plots fall in drought-prone area and,
therefore, the petitioner should have got an
advantage of twelve and a half per cent.
3. The definition of family unit under s. 3 (f) as
interpreted by the High Court is also violative of
Article 14 of the Constitution.
4. Land transferred by the petitioners under various
transfer deeds to outsiders and who came in
possession also could not be included in the
holding of the petitioners.
5.(a)Section 3 (f) of the Andhra Pradesh Act coupled
with explanation thereto being destructive of
Article 21 of the Constitution is violative of the
basic structure of the Constitution.
5.(b)Life and livelihood go together and, therefore,
deprivation of the minors of the land is hit by
Article 21 of the Constitution which contemplates
not only a mere existence but living with dignity.
The argument by the counsel for the parties was over on 23rd of March, 1983 when the judgment was reserved. Two weeks were, however, allowed to Shri Phadke to file written submissions and three weeks time to file the notification with respect to drought-prone areas in the above matter. Time for filing written submissions was extended up to 14th April, 1983. The petitioners, however, were not able to get the exact notification in respect of the drought-prone area. They have, therefore, in their written arguments sought permission to withdraw the said contention for the present with liberty to raise the same before the appropriate authority whenever the said notification is available.
Before dealing with the points raised by the learned counsel for the petitioners it may be pointed out that the Andhra Pradesh Act was enacted by the Andhra Pradesh Legislature on 1st of January, 1973. Soon after, its constitutional validity was challenged before the Andhra Pradesh High Court on various grounds but a Full Bench of the High Court negatived the challenge and held the Act to be constitutionally valid on 11th of April, 1973. Effective steps for implementation of the Act could not, however, be taken till the 1st of January, 1975.
The Andhra Pradesh Ceiling on Agricultural Holdings (Amendment) Act, 1977 was enacted with retrospective effect from 1st January, 1975 which introduced s. 4 A among other provisions. As soon as the amending Act was passed another round of litigation was started by the land holders by filing writ petitions in this Court challenging again the constitutional validity of the Andhra Pradesh Act. One of the grounds taken was that by reason of enactment of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the ’Central Act’) the Andhra Pradesh Act had become void and inoperative. The other ground taken in those cases was that the definition of ’family unit’ was violative of Article 14 of the Constitution. The ground of discrimination under Article 14 was, however, negatived by the Court. Certain other questions involving the interpretation of the provisions of the Andhra Pradesh Act were also raised in some of the writ petitions. But this Court in Tumati Venkaish etc. v. State of Andhra Pradesh(1) observed that the other questions could be agitated by the land holders in the appeals filed by them against the orders determining surplus land. This Court did not invalidate the whole of the Andhra Pradesh Act but only in respect of the provisions which were found repugnant to the provisions of the Central Act.
This is the third attempt on the part of the land holders to challenge the constitutional validity of some of the provisions of the Andhra Pradesh Act.
All the points raised by Shri Phadke are covered by some decision or the other of the Supreme Court. Shri Phadke, however, tried to distinguish those cases on the ground that the specific pleas sought to be raised by him in the present petition were not actually considered in those decisions, and, therefore, he cannot be precluded from raising the contentions which were conspicuous by their absence in those decisions. We take up the first ground first.
In Tumati Venkaish’s case (supra) this Court made it clear, as stated earlier, that it would examine only the constitutional validity of the Andhra Pradesh Act and other questions could be agitated the land holders in the petitions filed by them against the orders determining the surplus land. In spite of the aforesaid observation the Court did consider the question whether a separated minor son will or will not be construed as a member of the family unit, as will be evident from the following observations made by the Court:
"The next contention urged on behalf of the land-
holders was that on a proper construction of the
relevant provisions of the Andhra Pradesh Act, a
divided minor son was not liable to be included in
"family unit" as defined in section 3 (f) of that Act., and eventually the Court held:
"We do not therefore see how a divided minor son
can be excluded from the family unit. That would be
flying in the face of sections 3 (f) and 4 of the
Andhra Pradesh Act."
It will be relevant at this stage to refer to certain material provisions of the Act in order to appreciate the arguments:
"3. In this Act, unless the context otherwise
requires-(f) ’family unit’ means-
(i) in the case of an individual who has a spouse or
spouses, such individual, the spouse or spouses
and their minor sons and their unmarried minor
daughters, if any;
(ii) in the case of an individual who has no spouse
such individual and his or her minor sons and
unmarried minor daughters;
(iii)in the case of an individual who is a divorced
husband and who has not remarried, such individual
and his minor sons and unmarried minor daughters,
whether in his custody or not; and
(iv) where an individual and his or her spouse are both
dead, their minor sons and unmarried minor
daughters.
Explanation:- Where a minor son is married, his
wife and their off-spring, if any, shall also be deemed
to be members of the family unit of which the minor son
is a member."
Section 3 (o) defines ’person’ as including inter alia an individual and a family unit. Section 10 is a key section which imposes ceiling on the holding of land by providing that if the extent of the holding of a person is in excess of the ceiling area, the person shall be liable to surrender the land held in excess. If, therefore, an individual or family unit holds land in excess of the ceiling area, the excess land would have to be surrendered to the State Government. The extent of the ceiling area has been provided by s. 4 (1) of the Andhra Pradesh Act, which reads:
"4(1) The ceiling area in the case of a family
unit consisting of not more than five members shall be
an extent of land equal to one standard holding.
(2) the ceiling area in the case of a family unit
consisting of more than five members shall be an extent
of land equal to one standard holding plus an
additional extent of one-fifth of one standard holding
for every such member in excess of five, so however,
that the ceiling area shall not exceed two standard
holdings.
(3) The ceiling area in the case of every
individual who is not a member of a family unit, and in
the case of any other person shall be an extent of land
equal to one standard holding.
Explanation:- In the case of a family unit, the
ceiling area shall be applied to the aggregate of the
lands held by all the members of the family unit."
It will thus be clear that the ceiling area in case of an individual who is not a member of the family unit is equivalent to one standard holding and so also in the case of a family unit with not more than five members the ceiling area is the same. But if the family unit consisted of more than five members the ceiling area would stand increased by one-fifth of one standard holding for every additional member of the family unit, subject, however, to the maximum limit of two standard holdings. In view of the explanation added to s. 4 the land held by all the members of the family unit shall be aggregated for the purpose of computing the holding of the family unit. Obviously, therefore, where a family unit consisted of father, mother, and minor sons or daughters the land held by all these persons would have to be clubbed together and then ceiling area limit applied to the aggregate holding. No distinction has been made in the definition of a family unit between a divided minor son an undivided minor son. Both stand on the same footing and a divided minor son is as much a member of the family unit as an undivided minor son. Family unit is not to be confused with joint family.
The contention of Shri Phadke is that the definition of various terms as given in s. 3 of the Andhra Pradesh Act opens with the words. "In this Act, unless the context otherwise requires." According to the learned counsel the context ’otherwise requires’ that the word ’minor’ in s. 3 (f) cannot include a divided minor son. Section 4 (2), argued the learned counsel, deals with the ceiling area of a family unit and s. 4 (3) deals with the ceiling area of an individual who is not a member of a family unit. A divided minor son, submits the counsel, is an individual and is no longer a member of the family unit in as much as a partition has not only the effect of division of the property but a complete severance from membership of the joint family. Thus a minor who is separated under a partition deed cannot be a member of the family unit but becomes an individual.
The counsel supported his argument by reference to cls. (3) and (4) of s. 5 of the Andhra Pradesh Act. Clause (3) deals with the holding of an individual who is not a member of a family unit but is a member of joint family, and reads:
"(3) In computing the holding of an individual who
is not a member of a family unit, but is a member of a
joint family, the share of such an individual in the
lands held by the joint family shall be taken into
account and aggregated with the lands, if any, held by
him separately and for this purpose, such share shall
be deemed to be the extent of land which would be
allotted to such individual had there been a partition
of the lands held by the joint family.’ Clause (4) deals with the member of a family unit who is also a member of a joint family, and reads:
"(4) In computing the holding of the member of a
family unit who is also a member of a joint family, the
share of such member in the lands held by the joint
family shall be taken into account and aggregated with
the lands, if any, held by him separately and for this
purpose, such share shall be deemed to be the extent of
land which would be allotted to such member, had there
been a partition of the land held by the joint family." On the strength of these clauses it is sought to be argued for the petitioners that joint family is recognised as a legal entity in the computation of holding. Reference was also made to s. 3 (f), cl. (iv) which provides that where an individual and his or her spouse are both dead, their minor sons and unmarried daughters will be a constituent of ’family unit’. The contention of Shri Phadke is that in view of cl. (iv) of s. 3 (f) an orphan constitutes a family unit and is a member thereof, and in the light of these provisions if one looks at s. 8, Explanation [ regarding declaration of holding it will be clear that it speaks of "where the land is held or is deemed to be held by a minor not being a member of a family unit, the declaration shall be furnished by his guardian". Explanation II deals with the land held by the family unit and the declaration on behalf of the family unit is to be made by a person in the management of the property of such family unit. Such a minor not being a member of the family unit, says the counsel, can only be a separated member of the joint family.
Shri Ram Reddy, learned counsel for the respondent State relied on Kanuru Venkatakrishna Rao v. The Authorised Officer, Land Reforms, Bandar & Ors.(1) in support of his contention that a separated minor son is as much a member of the family unit as a non-separated minor son. The precise argument of the learned counsel in that case was that since no provision is made in the Act to indicate the holding of a ’family unit’, the other provisions of the Act cannot have any application with regard to a family unit. The High Court held:
"According to the definition of the term ’person’
a family unit is also a person. All the provisions of
the Act are intended by the Legislature to apply to the
family unit like the other categories of the term
’person’ as per its definition. Therefore, the
legislature intended the family unit also to have a
holding for the purpose of applying provisions of the
Act relating to determination of the ceiling limit and
excess land, if any, over it. It is true the provision
is not specific that such and such land constitutes the
holding of a family unit. But from what was said in the
explanation to section 4, it is clear what is meant by
the Legislature to be the holding of a family unit. The
implication is very clear that the holding of a family
unit is the aggregate of all the lands held by all the
members of the family unit ....By means of the
Explanation itself the Legislature intended to make
that provision."
A similar question arose in a recent case before this Court in Civil Appeal No. 4264 of 1983: State of Maharashtra v. Vyasendra decided on 3rd May, 1983 by a Division Bench on Section 4 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 dealt with ’family unit’ and the land held by it. Dealing with the question Hon’ble the Chief Justice speaking for the Court observed:
"The circumstance that the land held by a
constituent member of the family unit is separate
property or stridhan property is a matter of no
consequence whatsoever for the purpose of determining
the ceiling area which the family unit can retain. The
respondent, his wife and their minor sons and minor
unmarried daughters, if any, are all constituent
members of the family unit and all the lands held by
them have to be pooled together for the purpose of
determining the ceiling area which is permissible to
the family unit. The nature or character of their
interest in
the land held by them is irrelevant for computing the
ceiling area which the family unit may retain. In our opinion, therefore, the definition of family unit along with the explanation does not leave the slightest doubt that a separated minor son is as much a member of the family unit as a joint son with his father.
This leads us to the second group relating to droughtprone area. It may be pointed out at the very outset that no such plea had been taken before the High Court. The petitioners seek to get an advantage of 12 1/2 per cent on account of the land lying in drought-prone area in view of s. 5 (iv) of the Andhra Pradesh Act. Section 5 (iv) provides:
"5 (iv) In the case of any dry land situated in
any area declared by the Government by notification to
be a drought prone area, the extent of standard holding
shall be increased,-
(a) by twelve and a half per centum, in the case
of any dry land falling under Class G or
Class H of the Table below;
(b) by twenty per centum, in the case of any dry
land falling under Class I, Class J or Class
K of the said Table." In order to attract the provisions of cl. (iv) of s. 5 the petitioners have to establish that the Government by notification has declared a particular area to be a drought prone-area. The petitioners were given an opportunity to produce the notification which they have failed to do and now the petitioners seek that they should be given an opportunity to produce the specific notification as and when they are able to procure the same. We are not inclined to give such a blank-cheque to the petitioners to produce the required notification as and when they like. Indeed they should have raised a contention to that effect before the High Court and should have produced the necessary notification but that they did not do. Even before this Court they have not been able to produce the specific notification issued by the Government. Under the circumstances they cannot be allowed to urge this point for want to necessary foundation for the argument. We also decline to accede to their request that they may be allowed to produce the required Government notification according to their sweet will and as and when they are able to produce the same.
We now take up the third ground that the definition of family unit under s. 3 (f), as interpreted by the High Court is violative of Art. 14 of the Constitution. This point is also covered by a decision of this Court in Seth Nand Lal & Anr. v. State of Haryana & Ors.(1) and the Court repelled the argument firstly on the ground that it was saved by the protective umbrella under Art. 31A and Art. 31B of the Constitution and also on other considerations as will be evident from the following observation:
"It has been pointed out that adopting ’family’ as
a unit as against ’an individual’ was considered
necessary as that would reduce the scope for evasion of
law by effecting mala fide partitions and transfers
since such transactions are usually made in favour of
family members that normally in rural agricultural set
up in our country the family is the operative unit and
all the lands of a family constitute a single
operational holding and that therefore ceiling should
be related to the capacity of a family to cultivate the
lands personally. It has been pointed out that keeping
all these aspects in view the concept of family was
artificially defined and double standard for fixing
ceiling, one for the primary unit and other for the
adult son living with the family was adopted In fact, a
provision like s. 4(3) which makes for the augmentation
of the permissible area for a family when the adult
sons do not own or hold lands of their own but are
living with the family has one virtue, that it ensures
such augmentation in the case of every family
irrespective of by what personal law it is governed and
no discrimination is made between major sons governed
by different systems of personal laws. So far as an
adult son living separately from the family is
concerned, he is rightly regarded as a separate unit
who will have to file a separate declaration in respect
of his holding under s. 9 of the Act and since he is
living separately and would not be contributing his
capacity to the family to cultivate the family lands
personally, there is no justification for increasing
the permissible area of the primary unit of the family.
The case of an unmarried daughter or daughters living
with the family, counsel pointed out, was probably
considered to be a rare case and it was presumed that
daughters would in normal course get married and would
become members of their husbands’ units and that is why
no separate provision was made for giving additional
land for every unmarried major daughter living with the
family. On the materials placed and the initial
presumption of constitutionality, we find considerable
force in this submission. It is, therefore, not
possible to strike down an enactment particularly the
enactment dealing with agrarian reform which has been
put on the Statutes Book with the avowed purpose of
bringing about equality or rather reducing the
inequality between the haves and the have-nots, as
being violative of Art. 14 of the Constitution simply
because it has failed to make a provision for what was
regarded as an exceptional case or a rare contingency.
In our view, the material furnished on behalf of the
State Government by way of justification for adopting
an artificial definition of family and a double
standard for fixing ceiling is sufficient to rebel the
attack on these provisions under Art. 14." We fully concur with the view of the Court.
We now take up the fourth ground. The learned counsel
for the petitioners contends that the land transferred
by the petitioners in favour of outsiders under various
deeds could not be included in their holdings,
especially when those transfers were not hit by s. 7 of
the Andhra Pradesh Act in as much as the transfers were
made much before 24th of January, 1971. This point is
again covered by a decision of this Court in State of
Andhra Pradesh v. Mohd.. Ashrafuddin(1, to which one of
us was a party. In that case the Court had to construe
the expression ’held’ as defined in s.3 (i) of the
Andhra Pradesh Act. It reads:
"3(i) ’holding’ means the entire land held by a
person,-
(i) as an owner;
(ii) as a limited owner;
(iii)as a usufructuary mortgage;
(iv) as a tenant;
(v) who is in possession by virtue of a mortgage by
conditional sale or through part performance of a
contract for the sale of land or otherwise, or in
one or more of such capacities; and the expression ’to hold land’ shall be construed accordingly.
Explanation:-Where the same land is held by one
person in one capacity and by another person in any
other capacity, such land shall be included in the
holding of both such persons." Dealing with the expressions ’held’ the Court observed:
"The word ’held’ is not defined in the Act. We
have, therefore, to go by the dictionary meaning of the
term. According to Oxford Dictionary ’held’ means: to
possess to be the owner or holder or tenant of; keep
possession of; occupy. Thus, ’held’ connotes both
ownership as well as possession. And in the context of
the definition it is not possible to interpret the term
’held’ only in the sense of possession. For example, if
a land is held by an owner and also by a tenant or by a
person in possession pursuant to a contract for sale,
the holding will be taken to be the holding of all such
persons. It obviously means that an owner who is not an
actual possession will also be taken to be a holder of
the land. If there was any doubt in this behalf, the
same has been dispelled by the explanation attached to
the definition of the term ’holding’. The explanation
clearly contemplates that the same land can be the
holding of two different persons holding the land in
two different capacities. The respondent in view of the
definition certainly is holding as an owner, although
he is not in possession."
Shri Phadke, however, contends that s. 3(i) of the Andhra Pradesh Act being unreasonable is ultra vires because the same land cannot be the land of the transferor as well as of the transferee and that Mohd. Ashrafuddin’s case (supra) requires reconsideration. That case has taken into consideration the various relevant provisions of the Act and the Court came to the conclusion the same land can be the land of the transferor as well as the transferee in view of the definition of the term ’holding’ in s. 3(i) of the Andhra Pradesh Act and in our opinion the view taken in that case is fully warranted by the provisions of the Act. We are not persuaded to accept the contention that the case requires re-consideration.
This leads us to the last point but not the least in importance, in that the petitioners have been deprived of a substantial portion of their holding in the form of surplus land and thereby they have been deprived of their livelihood affecting their right to live, which is violative of Art. 21 of the Constitution. In support of this contention strong reliance was placed on the case of Maneka Gandhi v. Union of India(1) which has given a new dimension to Art. 21 of the Constitution. It was held in that case that right to live is not merely confined to physical existence, but it includes within its ambit the right to live with basic human dignity and the State cannot deprive anyone of this valuable right. It was further submitted that s. 3(f) of the Andhra Pradesh Act with the explanation added to it is destructive of Art. 21 and, therefore, violative of the basic structure of the Constitution. This point is also covered by two decisions of this Court. In re Sant Ram(2) dealing with Art. 21 of the Constitution a Bench of Five Judges of this Court held:
"The argument that the word "life" in Art. 21 of
the Constitution includes "livelihood" has only to be
stated to be rejected." "The same view was reiterated by a Bench of three Judges in A. V. Nachane v. Union of India(3). In that case the validity of the Life Insurance Corporation (Amendment) Act, 1981 (I of 1981) and the Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 1981, were challenged on several grounds including Art. 21 of the Constitution and the Court dealing with this aspect of the matter quoted with approval the case of Sant Ram (supra) in the following words:
"As regards Article 21, the first premise of the
argument that the word ’life’ in that Article includes
livelihood was considered and rejected in In re Sant
Ram." Shri Phadke, however, brushed these cases aside on the simple ground that they are not relevant for the decision of the question whether the right to live includes the right to live with human dignity, and the decision on Maneka Gandhi’s case (supra) must be deemed to be the correct exposition of the law on the subject. The contention that life includes livelihood within the meaning of Art. 21 of the Constitution was repelled in these two cases and Maneka Gandhi’s case did not take into consideration the case of Sant Ram (supra). These cases, therefore, still hold the field.
Besides, the petitioners have been deprived of their holding in the form of surplus land but it was only for the purpose of giving relief to the downtrodden and the poor agricultural labourers. The surplus land would vest in the State and the State in its turn would give it to the poor and the downtrodden and thus such a deprivation will be protected under Art. 39 of Directive Principles. The case of Maneka Gandhi (supra), in our opinion, is not relevant for the decision of the point under consideration.
The counsel for the petitioners in other cases adopted the same argument of Shri Phadke.
Having given our best consideration to the questions involved in the cases we find no infirmity in any of the provisions of the Andhra Pradesh Act.
For the foregoing discussion all the special leave petitions and the writ petitions must fail. They are accordingly dismissed. S.R. Petitions dismissed.