WANCHOO, - (1.) THE following Judgment of the court was delivered by :
(2.) THESE two petitions raise a question as to the validiy and constitutionality of r. 31 framed under the Pepsu Tenancy and Agricultural Lands Act (Act No. 13 of 1955) as amended by Pepsu Act No. 15 of 1956, (hereinafter referred to as the Act) and will be dealt with together. The attack on the rule is practically similar 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 landowners in village Dhamo Majra, District Patiala, in the State of Punjab. They are running an agricultural farm on a mechanised scale and the area of the farm measures 421 acres. This area is a compact block of land and it is said that some part of the area is potentially of high productivity whereas other area is of inferior quality and less productive capacity by reason of the presence of alkaline patches of soil therein. The land was originally scrub jungle and was uneven and extensive reclamation was carried on by the petitioners at heavy cost. They spent a large amount far terracing and leveling the land, constructing bundhs, water channels, approach roads and in standardising the area of the fields. Two wells were constructed for providing irrigational facilities and the petitioners have their own electric substation for the purpose. They have also constructed manure pits and have made permanent structural improvements in the shape of construction of roads, servant quarters, tractor sheds, cattle-sheds and stores, and have in all incurred expenses over rupees three lacs for all these purposes. The petitioners are carrying on farming on the basis of scientific cultivation practices, sowing practices and manure practices and because of the use of modern technique the overall yield per acre is very high keeping in view the fertility and nature of the soil. On 4/03/1952, the Act was enacted. It was amended on 30/10/1956 and Chaps. IV-A and IV-B were introduced therein. The petitioners have not challenged the constitutionality of these two Ch. and their attack is only on r. 31 framed under the powers conferred on the State government under these chapters. The scheme of Chap. IV-A is to provide ceiling on land and s. 32-A thereof fixes the permissible limit of land which can be owned or hold by any person as 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 scale`. 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 particulars, the total area of land owned or held by a person, the specific parcels of land which the landowner 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 offices power to the Collector to take possession the surplus area. Section 32-G provides for principles of payment of compensation and sea'. 32-J for the disposal of the surplus area. Then comes s. 32-K (1) with which we are mainly concerned and the relevant part of it is in these terms:- `32-K (1)-The provisions of section 32A shall not apply to- (i) ....... (ii) ...... (iii) ..... (iv) efficiently managed farms which consist of compact books on which heavy investment or permanent structural improvements have been made and whose break-up is likely to lead to a fall in production; (v) ....... (vi)....... Section 32-.P which is in Chap. IV-B provides for the establishment of a Commission called the Pepsu land Commission (hereinafter referred to as the Commission), and sub-ss. (4) and (5) thereof are in theme terms`(4) Subject to the provisions of this Act and in accordance with any rules which may be made by the State government in this behalf, it shall be the duty of the Commission to(a) ....... (b) ........ (c) advise the State government with regard to exemption of lands from the ceiling in accordance with the provision of section 32.K. (5) The advice given by the Pepsu Land Commission under clause (e) of subsection (4) shall be binding on the State government and notwithstanding anything in section 32-D no final statement shall, in a case in which exemption is claimed under section 32-K be published unless such advice is included therein.` Section 52 given power to the State government to frame rules to carry out the purposes of the Act. By virtue of the power conferred on the State 'Government to frame rules, Rules were framed in March 1958 to carry out the purposes of the Act. 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 acres and r. 31 lays down how the exemption of efficiently managed arms shall be determined, Sub-rule (1) thereof provides that if any person wishes to claim exemption from the coiling under cl (iv) of sub-s. (1) of B. 32-K of the Act, be shall also furnish information in form XI to the Collector alongwith information required through other forms prescribed under the.Rules. Sub-rule (2) lays down that the Commission shall assign marks in the manner provided in sub r. (4) in order to decide whether it is a farm which is efficiently managed and consists of compact blocks on which heavy investment straotural improvements have been made and whose break-up is likely to lead to a fall in production; and further makes the following classification of farms :` JUDGEMENT_365_AIR(SC)_1963Html1.htm 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 government annually in the months of January and February, and if any efficiently managed farm ceases to be so, the exemption 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 be awarded to a farm, for the purposes of classification, shall be 1,000` and sub-r. (4) (b) provides that the features for which marks are to be awarded are those given in Sch. B and 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 particulars and there are two Sch. B and C. Out of the total of 1000 marks, 500 marks are prescribed for various features mentioned in items I to IX of Sch. B while 500 marks are for yield. The land in the former Pepsu State is divided into four classes for the purpose of Sch. B. viz., mountaneous, sub-montane central prescribes average yield in maunds of various crops per acre for irrigated and unirrigated lands.
(3.) THIS in brief is the scheme of Act and r.32 framed thereunder. The petitioners' case is that the Commission is inquiring into the petitioners' claim of exemption under s. 32 K (1) (iv) of the Act and in doing so it is bound to follow the requirements of r.31 in addition to the fulfillment of the conditions in cl. (iv) of s.32-K (1). The petitioners contend that the standards of yields prescribed in sch. under r. 31 are arbitrary, obnoxious, unreasonable, hypothetical, completely unrealistic and unattainable in any modern farm and are repugnant to the provisions of the Act. It is further contended that the system of marking which has been evolved under r. 31 is completely alien and foreign to the Act. Reliance is placed on behalf of the petitioners on the observations of the Sub Committee set up by the planning Commission on the problems of Re-organisation, panel on land Reforms for the purpose of suggesting standards of efficient cultivation and management and sanctions for the enforcement of standards, when it said that though `an obvious test of good husbandry may appear to be thecomparative yield of crops, 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. which are beyond the control of the farmer`. The SubCommittee 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 par acre for different crops in different States of India and in different districts of Pepsu, and obviously results in discrimination. It is also urged that the standards fixed by Sch. C were unattainable and therefore the petitioners' claim for exemption under a. 32 K (1) (iv) would be seriously jeopardized if r. 31 is applied. It is contended that the rule goes beyond the power conferred on the State government under a. 32 K and was therefore ultra vires the Act. Further, it is urged that r. 31 along with the two Schedules 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 efficiently managed farms. It is also urged that by 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 vires of the Act and also as 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 Punjab 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 necessary to set out in detail the points raised in the reply of the State, as they will appear from the discussion in the later part of this judgment. Suffice it to say that the State 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 unconstitutional.;