HEGDE, - (1.) THE following Judgment of the courtwas delivered by
(2.) IN these connected appeals by certificates thequestion that arises for decision is whether the MadhyaPradesh Abolition of Cash Grants Act of 1963 (Act No. XVI of1963) is ultra vires the provisions of the Constitution.The respondents in these appeals were entitled to receivecash grants from the government of Madhya Pradesh. Theimpugned Act abolished such grants but provided for thepayment of certain compensation to the grantees. Therespondents challenged the vires of the Act before the HighCourt of Madhya Pradesh in Miscellaneous Petitions Nos. 21and 22 of 1963, on various grounds. The High court rejectedall the contentions advanced on behalf of the respondentsexcepting one, namely that the Act is ultra vires of Art.19(1) (f) of the Constitution and is not saved by sub-Art.(5) thereof. After obtaining from the High courtCertificates under Art. 133(1)(c), the State of MadhyaPradesh has filed these appeals. The State is challengingthe correctness of the decision of the High court to theextent it went against it. The respondents on their part,in addition to supporting the findings of the High courtwhich are in their favour, relied also on the other pleastaken by them before the High court. As we are of theopinion that the impugned Act is either violative of Art.31(2) or, in the alternative, Art. 19(1) (f) of theConstitution, we have not thought it necessary to go intothe other contentions taken on behalf of the respondents. Before the impugned Act was enacted, the State of MadhyaBharat which forms part of the new State of Madhya Pradesh,purported to abolish -the cash grants payable by it by meansof an executive order. That order was unsuccessfullychallenged by Madhorao Phalke and others before the HighCourt. But in apPeal this court in Madhorao Phalke v. Stateof Madhya Bharat(') quashed the order in question, holdingthat the grants in question were recognised by thekalambandis of 1912 and 1935 issued by the Rulers of Gwaliorand those' kalambandis are existing laws within the meaningof Art. 372 of the Constitution and consequently the samecould not be abrogated by means of an executive order. Itmay be noted that in that appeal, the appellant challengedthe order in question on two grounds, namely(1) that ashis right to receive the cash grant had been statutorilyrecognised by the State of Gwalior, it was not open to theGovernment of Madhya Bharat to exiting that right merely byan executive order, and (2) that that right being propertythe same could not be divested ,without payment ofcompensation under Art 31 of the Constitution. This courtallowed the appeal on the first ground and consequently itdid not deal with the second. After the decision of thisCourt in that case, the impugned Act was enacted by theMadhya Pradesh legislature on 5/04/1963. It receivedthe assent of the President on 25/07/1963 and waspublished in the Madhya Pradesh Gazette Extraordinary on 2/08/1963. The Act comes into force on such date asthe government may by notification appoint. Even beforethat notification was issued, the petitions from which theseappeals arise were instituted in the High court. We aregiven to under stand that in view of those petitions, theAct has' yet been brought into force. The long title of the Act says that it is an Act to providefor the discontinuance of cash grants in Madhya Pradesh andto make provisions for other matters connected therewith.It contains twelve sections. Section 11 sets out theirshort title, extent and commencement of the Act. S. 2defines some, of the expressions found in the Act. Section3 is the most important section. it purports to abolishcertain cash grants. Section 4 provides for statement ofclaims by the grantees. Section 5 provides the manner ofdetermining the compensation payable. Section 6 prescribesthat appeal, revision and review under the Act to be inaccordance with Madhya Pradesh Act No. 20 of 1959. Section7 provides for the determination of disputes as regards thetitle of any grantee. Section 8 bars the jurisdiction ofcivil courts to issue an injunction against any person inrespect of any proceedings pending before the competentauthority under s. 5 which shall have the effect of stayingthe proceedings. S. 9 prescribes the quantum ofcompensation payable. Section 10 deals with the mode ofpayment of compensation. Section 1 1 empowers the StateGovernment to make rules for carrying out all or any of thepurpose of the Act. Section 12 says that if any difficultyarises in giving effect to the provisions of -the Act, the'State government May by order make such provisions notinconsistent with the purposes Of this Act as appears to benecessary or expedient for removing the difficulty.
(3.) IN these aPpeals we are mainly conceded with the vires of s.3 read with the definition of `cash grant` in s. 2(1).Ifsection 3 read with s. 2(1) is held to be ultra vires of theConstitution, then the whole Act falls to the ground theremaining S. of the Act are merely subsidiary orincidental provisions. Section L7Sup.C.1/68-73:(*) provides that notwithstanding anything' contained inany law custom, usage, sanad or a decree or order of a courtor other authority whatsoever, all cash grants shall bediscontinued and cease to have effect from the commencementof this Act. But the pro thereto makes certain exceptionswith which we am not -concerned in this case. The case ofthe respondents falls within the main-part. They do nothave the benefit of the proviso A cash grant as defined inS. 2(1) (**) includes a grant of-----------------------------`3. Abolition of certain cash grants-(1) Notwithstandinganything contained in any law, custom, usage, sanad or adecree or order of a court or other authority whatsoever,all cash grants shall be discontinued and cease to haveeffect from the commencement of this Act :Provided that where the grantee is a person specified incolumn (1) of the Table below the cash grant may, at theoption of the grantee exercised in such manner, within suchperiod and in such form as may be prescribed, be continuedsubject to the conditions and during the period mentioned inthe corresponding entry in column (2) of the said Table. TABLE JUDGEMENT_1053_AIR(SC)_1968Html1.htm (2) Upon the discontinuance of a cash grant under sub-section (I not be, obligatory on the grantee to perform thefunction or discharge t any attached to such grant`.(**) `2(1)-Cash grant' means a grant of money which isenforceable by the grantee against the State government onthe date -of the coming into force of this Act but does notinclude-(i) a grant of money for- (a) services of Public temples, mosque or church; or(b) worship of public temples, mosque or church; or (c)public temples;(ii)a grant of money to charitable or religiousinstitutions;(iii)a grant of money or Pension or annuity or specialor Perpetual annuity sanctioned under-(a) S. 5.of the central Provinces and Berar Revocation ofland Revenue Exemptions Act, 1948 (XXXVII of 1948);(b) S. 77 or S. 81-A of the Madhya Pradesh Abolition ofProprietary Rights (Estates, Mahals Alienated Lands) Act,1950 (1 of 1951);(c) S. 41 of the Vindhya Pradesh Abolition of Jagirs andLand Reforms Act, 1952 (XI of 1952);(d) the orders relating to Jagirs in Bhopal' 'IhekamKhusravi, 1949, para 30 read with s.-45-A of the BhopalAbolition of Jagirs and Land Reforms Act, 1953 (No. X of1953); and(e) sub.S. (2) of S. 160 of the Madhya Pradesh Land RevenueCode, 1959, (20 of 1959);`money which is enforceable by the grantee against the StateGovernment on the date of the coming into force of the Actbut does This not include those ,,rants which arespecifically excluded. definition takes in all the cashgrants whatever may be the nature or origin of those grants.The definitiOn of a cash grant is wide enough to includecash grants sanctioned by ex-Rulers in lieu of Jagirs orother properties resumed or even, en payments agreed to bemade in lieu of loans given to the Rulers. Differentconsiderations may arise if the grants abolished areGratuitous payments, grants in lieu of services to berendered or other resumable grants. But as mentionedearlier, the definition of cash grants in s. 2(1) does notmake, any distinction between the various types of cashgrants. Hence, the said definition will have to stand orfall as a whole, there being no basis for severing some outof the several grants included therein. It is impermissiblefor this court to rewrite that clause and confine thedefinition only to such of the cash grants which thelegislature might be competent to abolish. The doctrine of severability is applicable only if it ispossible to separate the legal from the unconstitutionalportion of the Provision. If it is not possible to do so,the entire provision has to be struck down asunconstitutional. see Kameshivar Prasad v. State ofBihar(').;