A restriction on the fundamental right to acquire, hold, and dispose of property under Article 19(1)(f) of the Constitution may be justified as a reasonable restriction in the interests of the general public under Article 19(5) of the Constitution.

JUDGMENT :

R.N. Misra, J. - These are two applications under Articles 226 and 227 of the Constitution and both these writ petitions seek to assail the vires of section 22(4) of the Orissa Land Reforms Act, 1960 (here in after referred to as the Act) on the ground that it is ultra vires Article 19(1)(f) of the Constitution. Both these petitions were heard analogously and a common set of arguments were advanced before us. We, therefore, propose to dispose of these two cases by one common judgment.

2. It is conceded that the Orissa Land Reforms Act, 16 of 1960 has been included in the Ninth Schedule of the Constitution as Entry 52. But sub-section (4) of section 22 of the Act was not in the original statute which has constitutional immunity from challenge in Courts and was introduced by Amending Act 13 of 1965. There is no dispute at the Bar that the amendment does not have the constitutional immunity and is open to challenge. The impugned sub-section runs thus :

"The provisions contained in sub-sections (1) (2) and (3) shall apply, mutatis mutandis, to a transfer by a member of the Scheduled Castes ..."

It is necessary to refer to the provisions of sub-sections (1), (2) and (3). Those provisions are to the following effect:

"(1)Any transfer of a holding or part thereof by a raiyat, belonging to a Scheduled Tribe shall be void except where it is in favour of-

(a) a person belonging to a Scheduled Tribe, or

(b) a person not belonging to a Scheduled Tribe when such transfer is made with the previous permission in writing of the Revenue Officer :

Provided that in case of a transfer by sale the Revenue Officer shall not grant such permission unless he is satisfied that a purchaser belonging to a Scheduled Tribe willing to pay the market price for the land is not available, and in case of a gift unless he is satisfied about the bona fides thereof.

(2) The State Government may having regard to the law and custom applicable to any area prior to the date of commencement of this Act by notification direct that the restrictions provided in sub-section (1) shall not apply to lands situated in such area or belonging to any particular tribe throughout the State or a in any part of it.

(3) No such holding shall, unless the Court otherwise directs, be sold in execution of a decree to any person not belonging to a Scheduled Tribe."

Sub-section (3) extracted above was not also in the original Act and was introduced into the statute by the same amending Act which brought in sub-section (4).

3. Learned counsel for the petitioner contend that Article 19(1)(f) of the Constitution grantees that all citizens shall have their right to acquire, hold and dispose of property. The restriction provided in section 22 of the Act is certainly one that seriously infringes the aforesaid guarantee. As such unless the restriction is authorised under clause (5) of Article 19 of the Constitution, it must be declared as ultra vires the guarantee under Article 19(1)(f) of the Constitution. Clause (5) provides:

"Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe."

In view of the provisions of clause (5), the petitioners concede that such prohibition as is contained in sub-sections (1), (2) and (3) of section 22 of the Act may be taken as reasonable restrictions, but in regard to Scheduled Castes, the restriction is unreasonable because members of the Scheduled Castes cannot be equated with the general public and the provisions in sub-section (4) of section 22 cannot be held to be in the interest of the general public. It is contended that members of the Scheduled Castes do not constitute even the minority of the total citizens in the State and as such an i