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SUPREME COURT OF INDIA
15th May, 1953
MAHAJAN, B.K. MUKHERJEA, GHULAM HASAN, BHAGWATI AND JAGANNADHA DAS JJ.
Raghubir Singh, Petitioner
Versus
Court of Wards, Ajmer and another, Respondents.
Petition No. 29 of 1953.
Advocates appeared
Shri J. B. Dadachanji and Shri H. C. Sogain, Advocates instructed by Shri I. N. Shroff, Agent, for Petitioner; Shri M. C. Setalvad, Attorney-General for India (Shri Bhava Datta Sharma Advocate, with him), instructed by Shri G. H. Rajadhyaksha, Agent, for Respondents. 374
Section 112 of the Ajmer Tenancy and Land Records Act (XLII of 1950) provides:
"If a landlord habitually infringes the rights of a tenant under this Act, he shall, notwithstanding anything in section 7 of the Ajmer Government Wards Regulation, 1888 (I of 1888) be deemed to be a landlord who is disqualified to manage his own property within the meaning of section 6 of the said Regulation and his property shall be liable to be taken under the superintendence of the Court of Wards."
Section 6 of the Ajmer Government Wards Regulation (I of 1888) is in these terms:
"The Court of Wards may, with the previous sanction of the Chief Commissioner, assume the superintendence of property of any landholder who is disqualified to manage his own property."
Section 27 of Regulation I of 1888 provides that:
1. Tahir Hussain v. District Board, Muzafarnagar, A.I.R 1954 S.C. 630 referred to
“the exercise of any discretion conferred on the Court of Wards or the Chief Commissioner by this Regulation shall not be called in question in any Civil Court."
The petitioner owned an "istimrari - estate" in the State of Ajmer under an istimrari sanad granted to his ancestor in 1875. He enjoyed therein a life interest with an obligation to perform certain duties as prescribed by the Ajmer Land and Revenue Regulation (II of 1877). The Deputy Commissioner of Ajmer, who is the Court of Wards constituted under the Ajmer Government Wards Regulation (I of 1888), took over possession and assumed suprintendence of the said estate, purporting to act under sections 6 and -7 of the Regulation read with section 112 of the Ajmer Tenancy and Land Records Act, 1950. There was a petition for writ of mandamus or one in the nature thereof, or for the issue of a direction to the Court of Wards for restoration of possession of the estate and for an order directing it to forbear from carrying on the superintendence of the estate.
Held: (I) Section 112 of Act XLII of 1950 is an infringement of fundamental right guaranteed by Art. 19(1) (f) of the Constitution and is not saved eithe by clause (5) of that article or by article 31-A of the Constitution. The result of the combined operation of section 112 of Act XLII of 1950 and of the provisions of Regulation I of 1888, is that the Court of Wards can in its own discretion and on its subjective determination assume the superintendence of the property of a landlord who habitually infringes the rights of his tenants. The condition precedent to such assumption of suprentendence is the previous sanction of the Chief Commissioner, the giving of which is also a matter entirely resting on his discretion. And the exercise of this discretion by the Court of Wards or the Chief Commissioner cannot be called in question in any civil court by section 27 of the Regulation. The result is that by the subjective determination of the Court of Wards both the questions whether a particular person habitually infringes the rights of his tenants and whether his property should be taken over by the Court of Wards, stand settled and the landlord cannot have recourse to a civil court on these questions. This is clearly an infringement of fundamental rights guaranteed by Art. 19(1)(f) of the Constitution inasmuch as the petitioners right to hold the istimrari estate and his power of disposal over it stand abridged by the act of the Court of Wards authorised by these possessions. His right to manage the estate and enjoy possession thereof stands suspended indefinitely and until the time the Court of Wards chooses to withdraw its superintendence of the property of the petitioner. During this period, he can recieve only such sums of money for his expenses as the Court of Wards decides in its discretion to allow.
(2) The provisions of S. 112 of Act XLII of 1950 cannot be regarded as a "reasonable" restriction imposed in the interests of the general public on the exercise of the right conferred by the Art. 19(I}(f). The provisions of this section are penal in nature and are intended by way of punishment of a landlord who habitually infringes the rights of his tenants. He is punished by being placed at the mercy of the Court of Wards and, by being made subject to the stringent provisions of Regulation 1 of 1888. An enactment which prescribes a punishment or penalty for bad behaviour or for misconduct of a landlord cannot possibly be regarded as restriction on a fundamental right. Indeed, a punishment is not a restriction. It is still more difficult to regard such a provision as a reasonable restriction on the fundamental right. When a law deprives a person of possession of his property for an indefinite period of time merely on the subjective determination of an executive officer, such a law can, on no construction of the word "reasonable" be described as coming within that. expression, because it completely negatives the fundamental right by making its enjoyment depend on the mere pleasure and discretion of the executive, the citizen affected having no right to have recourse for establishing the contrary in a civil court.
(3) Section 112 of the Act was not validated by Art. 31-A of the Constitution as it was not "a law providing for the acquisition by the State of any estate or of any rights therein for the extinction or modification of any such rights within the meaning of Art. 31-A. The word "modification" in the context of Art. 31-A only means a modification of the proprietary right of a citizen like an extinguishment of that right and cannot include within its ambit a mere suspension of the right of management of estate for a time, definite or indefinite. - Articles 31, 31-A-Ajmer Tenancy and Land Records Act, S. 112-Validity. - Article 19 (I) (f), (s)-Ajmer Tenancy and Land Records Act (XLII of 1950), S. 112-Ajmer Government Wards Regulation (I of 11188) Ss. 6, 7-Validity.
See under "Ajmer Tenancy and Land Records Act, 1950, and Ajmer Government Wards Regulation, 1888." at pp. 39 to 41 ante.
Judgement
MAHAJAN, J. :
This is a Petition under Art. 32 of the Constitution seeking relief against alleged infringement of certain fundamental rights of the petitioner and arises in these circumstances.
2. The petitioner owns an istimrari estate in the State of Ajmer under an istimrari sanad granted to his ancestor in the year 1875. He enjoys therein a life interest with an obligation to perform certain duties as prescribed by the Ajmer Land and Revenue Regulation (2 of 1877).
3. The Deputy Commissioner of Ajmer, who is the Court of Wards constituted under the Ajmer Government Wards Regulation (1 of 1888), took over possession and assumed superintendence of the said estate on 18-9-1952, purporting to act under Ss. 6 and 7 of the Regulation read with S. 112 Ajmer Tenancy and Land Records Act, 1950 (42 of 1950), and hence this petition for a writ of mandamus or one in the nature thereof, or for the issue of a direction to the Court of Wards for restoration of possession of the estate and for an order directing it to forbear from carrying on the superintendence of the estate.
4. The order made by the Court of Wards on 18-9-1952, is impugned as being void and of no effect whatever, because it is alleged that the statutory provisions under which it is purported to have been made contravene the provisions of Part III of the Constitution and take away and abridge the petitioner s rights guaranteed by Art. 19 (1) (f) of the Constitution.
5. Section 112 of Act 42 of 1950 is one of a group of 7 sections in Chapter 10 of the Act which deals with the subject of "Compensation and Penalties". The section prescribes penalties for habitual infringement of rights of tenants and reads thus:
"If a landlord habitually infringes the rights of a tenant under this Act., he shall, notwithstanding anything in S. 7 of the Ajmer Government Wards Regulation, 1888 (1 of 1888), be deemed to be a landlord who is disqualified to manage his own property" within the meaning of S. 6 of the said Regulation and his property shall be liable to be taken under the superintendence of the Court of Wards."
The preceding S. 110 is in these terms:
"If a landholder or his agent collects from a tenant any lag or neg , he shall be deemed to have committed an offence of extortion within the meaning of the Indian Penal Code (Act 45 of 1860)."
Just as S. 110 declares an illegal exaction by a landlord to be an offence under the Indian Penal Code, in like manner, S. 112 declares a landlord who habitually infringes the rights of a tenant "a person disqualified to manage his own property" within the meaning of S. 6 of Regulation I of 1888, the consequence being that his property becomes liable to be taken over by the Court of Wards. The section is an ingenious and novel device to punish landlords who habitually infringe the rights of tenants. It authorizes the use for punitive purposes of the machinery of Regulation I of 1888 enacted to make better provision for the superintendence of Government Wards in Ajmer-Merwara. By force of the declaration in S. 112 of the Act, landlords who habitually infringe the rights of the tenants fall within the category of persons incapable of managing their own property and come within the ambit of S. 6 of the Regulation, which is in these terms:
"The Court of Wards may, with the previous sanction of the Chief Commissioner, assume the Superintendence of the property of any landholder who is disqualified to manage his own property."
6. The result therefore of the combined operation of S. 112 of Act 42 of 1950 and of the provisions of Regulation I of 1888, is that the Court of Wards can in its own discretion and on its subjective determination, assume the superintendence of the property of a landlord who habitually infringes the rights of his tenants. The condition precedent to such assumption of superintendence is the previous sanction of the Chief Commissioner, the giving of which Is also a matter entirely resting on his discretion. Section 27 of R
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