- (1.) A number of writ petitions have been filed challenging the constitutional validity of the various provisions of the Punjab Land Reforms Act, 1973 (hereinafter referred to as the Act ). The Act received the assent of the President of India on march 24, 1973, and was published in the Punjab Govt. Gazette under notification no. 12-Leg/73 dated April 2, 1973, from which date it came into force. It is not necessary to state the facts of any case because all these cases (C. W. Nos. 3145, 3150, 3210, 3254, 3287, 3288, 3293, 3456 to 3463, 3469, 3470, 3472, 3503, 3547 to 3550, 3564 to 3568, 3629 and 4004 of 1973) will be decided on merits by a learned Single Judge in the light of the decisions rendered in this judgment.
(2.) THE sections of the Act which have been challenged as ultra vires are Section 4, section 5 and the definitions of 'family' and 'person' in Section 3 (4) and (10 ). These sections read as under:-- "4 (1 ). Subject to t he provisions of Section 5, no person shall own or hold land as landowner or mortgagee with possession of tenant or partly in one capacity and partly in another in excess of the permissible area. (2) Permissible area shall mean in respect of- (a) land under assured irrigation and capable of yielding at least two crops in a year (hereinafter in this Act refereed to as 'the first quality land'), seven hectares; or (b) land under assured irrigation for only one crop in year, eleven hectares; or (c) barani land, 20. 5 hectares; or (d) land of other classes including banjar land, an area to be determined according to the prescribed scale with reference to the intensity of irrigation, productivity and soil classification of such classes, having regard to the respective valuation and the permissible area of the classes of land mentioned at (a), (b)and (c) above, subject to the condition that the area so determined shall not exceed 21. 8 hectares, provided that- (i) where land consists of two or more classes, the permissible area shall be determined on the basis of relative valuation of such classes of land, subject to the condition that it does not exceed 21. 8 hectares; (ii) where the number of members of a family exceeds five, the permissible area shall be increased by one-fifth of the permissible area for each member in excess of five, subject to the condition that additional land shall be allowed for not more than three such members. (3) Notwithstanding anything contained in sub-section (2), where any land is comprised in an orchard on the appointed day, such land shall, for the purpose of determining the permissible area, be treated as barani land. (4) (a) Where a person is a member of a registered co-operative farming society, his share in the land held by such society together with his other land, if any, or if such person is a member of a family, together with the land held by every member of the family shall be taken into account for determining the permissible area; (b) where a person is a member of family, the land held by such person together with the land held by every other member of the family, whether individually or jointly, shall be taken into account for determining the permissible area. (5) In determining the permissible area, any land which was transferred by sale, gift or otherwise, other than a bona fide sale or transfer, after the appointed day but before the commencement of this Act, shall be taken into account as if such land had not been transferred and the onus of proving the transfer as bona fide shall be on the transferor. (6) For the purpose of valuation of land one and quarter hectares of banjar land shall be treated as equivalent in value to one hectare of barani land. (7) For evaluating the land of any person at any time under this Act, the land owned by him immediately before the commencement of this Act as well as the land acquired by him after such commencement by inheritance, bequest of gift from a person to whom he is an heir shall be evaluated as if the evaluation was being, made on the appointed day and the land acquired by him after such commencement in any other manner shall be evaluated as if the evaluation was being made on the date of such acquisition. 5 (1) Every person, who, on the appointed day or at any time thereafter, owns or holds land as landowner or mortgagee with possession or tenant or partly in one capacity and partly in another in excess of the permissible area and intimate his selection to the Collector, and where land is situate in more than one district, to the Collectors concerned, through a declaration to be furnished in such form and manner and within such period as may be prescribed and if such person has an adult son, he shall also be entitled to select separate permissible area in respect of each such son, out of the land owned or held by him subject to the condition that the land so selected together with the land already owned or held by such son, shall not exceed the permissible area of each such son: provided that where land is situate in more than one patwar circle, the declaration shall be supported by an affidavit in the prescribed form. (2) In making the selection, such a person shall include firstly, land mortgaged without possession and secondly, land under self-cultivation on the date of commencement of the period prescribed for furnishing the declaration under sub-section (1) but shall not include area declared surplus under the Punjab Law, the Pepsu law or this Act, other than the area which was exempt from utilization by the State Government immediately before such commencement. 3 (4) 'family' in relation to a person means the person, the wife or husband, as the case may be, of such person and his or her minor children, other than a married minor daughter; 3 (10) 'person' includes a company, family, association or other body of individuals, whether incorporated or not, and any institution capable of holding property;".
(3.) THE first point argued by Shri H. L. Sibal, the learned counsel for the petitioners, is that in spite of the declaration made in Section 2 of the Act there is no nexus between the provisions of the Act and the Directive Principles enshrined in Article 39 (b) and (c) of the Constitution of India and it is, therefore, not saved from attack under Articles 14, 19 and 31-A. It has been urged that in view of the declaration made in Section 2, the constitutional validity of the Act had to be judged in the light of the principles specified in clauses (b) and (c) of Article 39 of the Constitution alone without references to any other Article thereof. In my view, there is no merit in this submission. Section 2 reads as under:- "2. It is hereby declared that this Act is for giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c)of Article 39 of the Constitution of India. " The declaration in Section 2 seems to have been made by the Legislature in view of the provisions of Article 31-C, which was inserted in the Constitution by the constitution (Twenty-fifth Amendment) Act, 1971, and reads as under:- "31-C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any Court on the ground that it does not give effect to such policy: provided that where such law is made by the Legislature of a state, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. " The purpose of this Article was to make a legislation giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 immune from attack under Articles 14, 19 and 31 of the Constitution. It was further provided that such a law would not be called in question in any Court on the ground that it does not give effect to such policy, if it contained a declaration that it was enacted to give effect to such policy. This later part of the Article barring judicial review has been struck down by their Lordships of the Supreme court in Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461. This Act was passed by the legislature of the Punjab state and was reserved for the consideration of the President to which assent was accorded on March 24, 1973, and was brought into force on April 2, 1973. By that date the Supreme court judgment had not been delivered. In view of that judgment, it is now open to this Court to examinee whether the Act gives effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39 in spite of the declaration, so that if it does, the various provision, so that if it does, the various provisions of the Act will be immune from attack under Articles 14, 19 and 31 of the Constitution and if it does not, the provisions of the Act will be immune from attack under Articles 14, 19 and 31 of the Constitution and if it does not, the provisions of the Act can be challenged on the grounds mentioned in those Articles. In the matter whether the Act and its provisions primarily give effect to the policy of the State as specified in clauses (b) and (c) of Article 39 of the Constitution because of this Act and its various provisions are covered under article 31-A of the Constitution, they shall be immune from attack under Articles 14, 19 and 31. The net result is that if the Act and its provisions fall ether under article 31-A or under Article 39 (b) and (c) of the Constitution, their constitutional validity cannot be challenged on the ground that they are inconsistent with or take away or abridge any of the rights conferred by Article 14, Article 19 or Article 31 of the Constitution. In his view of the matter, the declaration made in Section 2 of the Act has lost all importance and meaning and can be considered to have become redundant and superfluous after the Supreme Court judgment in kesavananda's case, AIR 1973 SC 1461 (supra ).;