Allahabad High Court

Satendra Singh & Others vs State Of U.P. & Another on 10 October, 2013

Bench: Sunil Ambwani, Surya Prakash Kesarwani




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 32								      AFR
 
								      Reserved on 6.8.2013
 
								    Delivered on 10.10.2013
 
Case :- WRIT - C No. - 51732 of 2009
 

 
Petitioner :- Satendra Singh & Others
 
Respondent :- State Of U.P. & Another
 
Counsel for Petitioner :- VKS Chaudhary,Kunal Ravi Singh,Manjari Singh
 
Counsel for Respondent :- C.S.C.,B.P.Mishra,Ramesh Pandey,S.Goswami,V.K.Singh,V.S.Pandey
 

 
Hon'ble Sunil Ambwani,J.

Hon'ble Surya Prakash Kesarwani,J.

(Delivered by Hon'ble Surya Prakash Kesarwani,J.)

1. In this writ petition the petitioner has challenged the validity of Section 171(2) Clause (n) of the U.P.Zamindari Abolition and land Reform Act 1951 (U.P. Act No. 1 of 1951) as amended by U.P. Act No. 27 of 2004. The grievance of the petitioner is that by Amendment Act No. 27 of 2004, Clause (r)- father's father's son was omitted and a new entry as Clause (n)- mother's mother's son has been substituted. Thus, for the first time, the devolution of interest in the holding of the deceased male Bhumidhar or Asami has been provided in the maternal side to maternal uncle and the paternal uncle i.e. father's father's son has been excluded. It is alleged that the amendment is unreasonable, senseless and in contravention of paternal structure of rural agricultural society.

2. Briefly stated the facts of the present case are that one Swatantra Veer Singh, S/o- Virendra Singh, resident of Village Aslatpur Jarai, P.O. Jarai, Tehsil Chandauli, District Moradabad was bhumidhar of Plot No. 1073 area 2.898 h. and four tenure holders of Plot Nos. 1703 area 0.348 h., Plot No. 840 area 1.145 h., Plot No. 836 area 2.902 h. and Plot No. 852 area 0.243 h. It is alleged in paragraphs 5 and 6 of the writ petition that Swatantra Veer Singh was a person of unsound mind. His mother was murdered on 11/12.09.2007. Swatantra Veer Singh died on 2.1.2009 in the house of his maternal uncle under mysterious circumstances. On the same day, FIR was lodged against the maternal uncle by his paternal aunt who earlier filed an application to appoint her as guardian. In paragraphs 8 and 9, it is alleged that in view of Clause(n) of Section 171 (2) of the U.P. Zamindari Abolition and Land Reform Act 1950(hereinafter referred as the Act) the maternal uncle of the deceased i.e. respondent nos.3 and 4 got their names recorded in revenue records over the bhumidhari land of the deceased Swatantra Veer Singh. On the very next day without actual entry of possession, they sold the whole of the bhumidhari land to third person pocketing the price. However, on 15.1.2009, the Tehsildar ordered that no succession shall be recorded over the property of the deceased. A mutation case no. 454 of 2009 under Section 34 of the Land Revenue Act was filed which is pending. In these circumstances, the instant writ petition has been filed by the petitioners challenging the constitutional validity of Clause (n) of Section 171(2) of the Act as substituted by U.P.Act No. 27 of 2004.

3. Counter affidavit has been filed on behalf of respondent no.1 and in paragraph-8 thereof, it has been stated as under :

"8. That in reply to the contents of paragraph No.7 of the writ petition, it is submitted that the amendment has been made on account of change in the social culture and atmosphere developed in the society and as such, the amendment is just and legal, which has been made in order to correlate the same to the welfare of the public at large."

4.The respondent no.2 i.e. Tehsildar has filed a counter affidavit and in paragraph-7 thereof, it is submitted that the deceased Swatantra Veer Singh was recorded as tenure holder of Khatauni Khata Nos. 817, 819, 822, 823 and 870. Copies of Khatauni thereof have been filed as Annexure No. A-1.

5.Counter affidavit has been filed on behalf of respondent nos. 3 and 4 namely, Sri Kunwar Pal Singh and Sri Dinesh pal Singh who are maternal uncles of the deceased Swatantra Veer Singh. They have stated in paragraphs-7, 8, 10, 11 and 13 as under :

"7. That the contents of paragraph no.5 of the writ petition as narrated are incorrect hence are denied. In reply thereto it is submitted that the mother of Swatantra Vir Singh namely Smt. Laughshree was annihilated by two persons originally Satyendra Singh and his brother namely Lalesh Kumar @ Lalu with intention to grab the property of Swatantra Vir Singh as Swatanta Vir Singh was given in custody being unsound mind by the Police. For kind perusal and consideration of this Hon'ble court a photocopy of the custody report is being filed and marked as Annexure No.C.A.1 to this counter affidavit.

8. That in reply to the contents of paragraph no.6 of the writ petition it is submitted that Swatantravir Singh died his natural death and in these circumstances and in order to prove that he died his natural death the copy of the death certificate which was issued by the health department/Chief Medical Officer, District Hospital, Moradabad on 12.01.2009. For kind perusal and consideration of this Hon'ble court a photocopy of the death certificate dated 12.01.2009 is being filed and marked as Annexure No.C.A.2 to this counter affidavit.

It would be worth while mentioning therein that Kunwar Pal Singh and his brother were wrongly named in the first information report on the allegations that the aforesaid two persons committed the murder of Swatantra Vir Singh but the police after thorough investigation submitted final report on 29.07.2009. For kind perusal and consideration of this Hon'ble court a photocopy of the final report dated 29.07.2009 is being filed and marked as Annexure No.C.A.3 to this counter affidavit.

10. That the contents of paragraph no.8 of the writ petition as narrated are wholly incorrect and are denied. In reply there to it is submitted that since Swatantra Vir Singh was man of unsound mind, the police has given custody of Swatantravir Singh on 30.11.2007 to Dinesh Pal Singh and Kunwarpal Singh since then aforesaid two persons were being maternal uncle of Swatantra Vir Singh, aforesaid Kunwar Pal Singh and his brother served Swatantra Vir Singh and Swatantra Vir Singh died his natural death.

11. That the contents of paragraph no.9 of the writ petition as narrated are denied. In reply thereto it is submitted that as the amendment in under section 171 of U.P.Z.A. & L.R. Act Kunwar Pal Singh and Dinesh Pal Singh have already been inherited over the property of Swatantra Vir Singh and this inheriting was under the provisions of U.P.Z.A & L.R. Act. Rest of the contents of paragraphs is being matter of record need no reply.

13. That in reply to the contents of paragraph no.11 of the writ petition it is submittted that the State Government has rightly made amendment in under section 171 of U.P.Z.A. L.R.Act which does not require any legal interference of this Hon'ble court."

6.The custody report dated 30.11.2007 (Annexure No. C.A-1) is reproduced below :

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izekf.kr fd;k tkrk gS fd Lora=ohj flag iq= Lo0 Jh ohjsUnz flag fu0 vYykiqj tjbZiqj Fkkuk pUnkSyh ft0 eqjknkckn dh ekrk Jherh ykSx Jh dh gR;k fnukad [email protected]&09&2007 dks dj nh xbZ ftldk eqdnek vijk/k la0 [email protected] rQrhlh dk;e gqvk foospuk ds nkSjku e`rdk ds nsoj lR;sUnz flag ,oa lrsUnz flag dk csVk yoys'k mQZ ykyw vfHk;qDr ik;s x;s ftldk pkyku fd;k x;kA LorU+= ohj ekufld :i ls fof{kIr O;fDr gS tks viuh ekrk ds lkFk ek;ds okyksa dh ns[k js[k esa jgrs Fks fiNys lkr vkB o"kZ ls ykSx Jh ds ek;ds okys Hkh ;gka jg jgs FksA vfHk;qDr lR;sUnz ,oa yoys'k mQZ ykyw us lEifRr dh ykyp es aykSax Jh dh gR;k dh FkhA Lora+ ohj ds uke ipkl lkB yk[k dh lEifRr gS ftldh otg ls Lora+ ohj dks lR;sUnz ,oa ykyw mQZ yoys'k ls tku dk iwjh rjg ls [krjk gS Lora++= ohj dks lqj{kk dh n`f"V ls ekek fnus'k iky flag iq= Jh Lo0 iqju flag fuoklh nEiwjk mQZ nEiw uxyk Fkkuk dq< Qrsgx<- ftyk eqjknkckn ds ;gka eq> foospd }kjk fnukad 30&11&2007 dks Hkstk x;k QnZ xokgku dks i xokgku&jkeHkjksls iq= jkeyky fuoklh neiwjk

2& fouksn dqekj xqIrk iq= Jh vkse izdk'k xqirk L;ksxVk eqjknkckn"

7.The reply of paragraphs-7, 8, 10, 11 and 13 of the counter affidavit of respondent nos.3 and 4 has been given by the petitioners in paragraphs-5, 6, 8, 9 and 11 in the rejoinder affidavit filed by Sri Lavlesh Kumar wherein it has been stated as under :

" (5) That the contents of paragraph 7 of the counter affidavit are incorrect. Tehsildar, Chandausi in his report to Addl. Collector, Chandausi clearly stated that the role of his maternal uncle was under suspicious and further recommended that the District Judge be appointed as a natural guardian as Swatantraveer Singh was a person of unsound mind. The Addl. Collector in turn forwarded his report to Collector, Chandausi whereby he reiterated the fact that the role of maternal uncle was suspicious and the District Judge should be appointed as a natural guardian. Copies of the said reports are attached as Annexure RA-1.

The Addl. Collector (Administration) had also written to the Addl. Collector, Chandausi about the mysterious circumstances and the need for appointing a natural guardian other than his maternal uncle. A copy of the said letter is attached as Annexure RA-2

The maternal uncle with oblique motives had filed a FIR against the deponent alleging that the deponent killed the mother of Swatantra Veer Singh,. However the deponent was found not guilty by the Court and it is incorrect to state that the deponent had any hand in the killing. A copy of the judgment dated 29.4.2010 is attached as Annexure-3.

The police officer who gave Swatantra Veer Singh in the alleged custody of his maternal uncle has not performed his duty in an unbiased manner. He also initiated proceedings against the deponent for the murder of mother of Swatantra Veer Singh and also submitted a final report in favour of the maternal uncle even though the letter of the authorities show otherwise.

(6)That the contents of paragraph 8 of the counter affidavit are incorrect. The medical certificate does not state as to how he died. Furthermore Swatantra Veer Singh had to appear in Court before his death and his maternal uncle had been directed by the Court to ensure his presence. Before he could be presented before the Court, he died in mysterious circumstances. The family members were not aware as to how he died and he was also cremated by his maternal uncle without telling other family members about it.

The police officer who submitted the Final Report is in connivance with the maternal uncle. He gave Swatantra Veer Singh in custody of the maternal uncle, where he died in mysterious circumstances. A protest petition has been filed against the final report which has every chance of being allowed by the Court.

(8) That the contents of paragraph 10 of the counter affidavit are incorrect. Swatantra Veer Singh had to appear in Court before his death and his maternal uncle had been directed by the Court to ensure his presence. Before he could be presented before the Court, he died in mysterious circumstances. The family members were not aware as to how he died and he was also cremated by his maternal uncle without telling other family members about it. His death was not a natural death.

(9) That the contents of paragraph 11 of the counter affidavit are incorrect. Swatantra Veer Singh died under mysterious circumstances while in custody of his maternal uncle. It is a suspected case of causing death deliberately or due to negligence. His uncle can't inherit the property. Furthermore the said amendemnt is arbitrary and violative of Constitution of India. In the present case, the said amendment is unreasonable and violative of Article 14 of the Constitution of India subject to judicial review by the Court.

(11) That the contents of paragraph 13, 14 and 15 of the counter affidavit are incorrect. It is submitted that the judicial review is always permissible in case an act of State is arbitrary or violative of the Constitution of India. In the present case, the said amendment is unreasonable and violative of Article 14 of the Constitution of India subject to judicial review by the Court. The petition is liable to be allowed for grounds mentioned in the writ petition and the amendment is liable to be struck down as arbitrary and violative of the Constitution of India."

8. Rejoinder affidavit has been filed on behalf of petitioners by the petitioner no.1/3 Sri Lavlesh Kumar s/o Late Sri Satyendra Singh in reply to the counter affidavit filed by respondent no. 1. Paragraphs-2, 3, 4 and 8 of the rejoinder affidavit are reproduced below :

"2. That before replying to the averments in the counter affidavit it is important to bring on record certain relevant facts in relation to patriarchal and matriarchals societies prevalent in India.

(a) The Hindu law was framed as universal law. After going into various customs of human society, the smritikars formulated the law relating to both patriarchal and matriarchal societies.

(b) In certain parts of India namely in Kerala, certain parts of Karnataka, and in Coorg, the law that was followed was the Aliyasanam or Marumakattyam law applicable to a matriarchal societies. The main feature of Marumakkattyam law is that the inheritance is through females. ('Aliasantanam' means literally the progeny of 'sisters husband' i.e.' bahnoi'.) The inheritance in both these laws is through female relations. (vide Mayne's Hindu Law and Usage; Chapter 30). This law was prevalent till stature law came into force in Kerala, parts of Karnataka and North Eastern states of India where it was applicable as customary law.

(c) The agricultural society in U.P. has always been patriarchal. The matriarchal society never existed in State of U.P. and the laws relating to matriarchal society never applied in the State of U.P.

(e) Under the general custom prevalent in UP, a daughter is inducted in her husband's family and becomes a part and parcel of it. The universal practice among all sections of rural society in U.P. is that the daughter goes to live with her husband's family in another village and does not live with her paternal family. She has no interest in cultivation of the father's family; her interest in cultivation lies is in her husband's family. (This is unlike matriarchal societies where husband goes to live with the wives of mother's family.) Thus the daughter never cultivated the land as she went to live in another village. Only the patriarchal heirs cultivated the land. It is for this reason that the daughter inherited primarily in her husband's family. Under the law prevalent in U.P. She only inherited in her father's family if there were no other heirs to cultivate.

(f) The idea of having maternal relations instead of paternal relations is wholly repugnant to social customs, unreasonable and irrational in a patriarchal society. It will give rise to land being left fallow or being sold outside agricultural societies. It further creates imbalance schism or inimical feelings between brother and sisters, between daughter's original family and her husband's family and is not conducive to the well being of the society.

3. That the said amendment in U.P. Act 1 of 1951 is unreasonable and senseless in the context of rural or agricultural society and is in contravention of paternal structure of rural agricultural society upheld by the guarantee under Article 31-B read with Ninth Schedule of the Constitution. It is also violative of Article 14 of the Constitution of India.

4. That since the enforcement of U.P. Act 1 of 1951, the succession on the death of a male Bhumidhar has always been governed by rules relating to a patriarchal society. Father's father's son has always been an heir since the enforcement of the Act in 1951 and the line of succession is solely patriarchal in nature. The mother's side of the family has never been included under general rules of succession governed under old Tenancy Acts or under Section 171 of this Act. Till the amendment in 2004, the rules of succession never included the maternal side of the family and mother's side of the family was always excluded from succeeding in case of a death of a male bhumidhar. This rule of succession is generaly based upon the patriarchal nature of agricultural societies that exist in the State of U.P.

8. That the contents of paragraph 4 of the counter affidavit are incorrect. The said amendment will cause an upheaval in agricultural society as prevalent in the State of U.P. The agricultural society of U.P. is patriarchal in nature by custom immemorial and inserting a heir from the maternal side of the family is irrational and will lead to land being left follow and disruption in the society. The object and reasons stated in the amendment have failed to explain as to why it was necessary to insert a maternal heir in the place of paternal heir. The objects and reasons are arbitrary and have no reasonable nexus with the amendment inserted. The amendment is also arbitrary because father's father's son's son is retained while father's father's son has been deleted. There is no justification as to why paternal uncle has been excluded while the son of paternal uncle continues in the line of succession. This shows the arbitrary nature of the amendment."

9. We have quoted above, certain paragraphs of various counter affidavits and rejoinder affidavits and the custody report merely for two purposes firstly, that the deceased bhomidhar was of unsound mind and was living with his maternal uncle who were looking after him, and secondly, the stand of the petitioners is that the agricultural society is a patriarchal society and mother's side of the family has never been included rather excluded from succeeding agricultural land on death of a male bhumidhar and as such deletion of Clause (q) and insertion of Clause (n) by U.P.Act No. 27 of 2004 is irrational, unreasonable and violative of Article 14 of the Constitution of India.

10. We have heard Sri Kunal Ravi Singh and Sri Manjari Singh, learned counsel for the petitioners and Sri C.B.Yadav, learned Additional Advocate General assisted by Sri A.K.Goyal, learned Additional Chief Standing Counsel for the State respondents and perused the record. No one appeared for private respondents namely, respondent nos. 3, 4, 5, 6 and 7.

Submission of Petitioners

11. Sri Kunal Singh has basically reiterated the stand taken in the writ petition and more precisely in the rejoinder affidavit which has already been reproduced above. Elaborating his argument, he submits that :

" (i) There are two types of societies the world over: (a) Patrirchal and (b) matriarchal. The ancient Hindu Law applied to both types of societies. The agricultural society in UP, to whatever religious denomination it belongs, is patriarchal. Generally speaking the main difference between patriarchal and matriarchal society is that in patriarchal society, daughters are married in another village and go to live with their husbands in the 'sasural' (father-in-law's house). They share and inherit property with their husband in father-in-law's house, property and family. In all matriarchal societies the husband goes and lives in his 'sasural' with his mother-in-law and shares and inherits the property in the mother-in-law's house.

[Note: For Hindu Law as applied to matriarchal societies. See "Mayne's Hundi Law and usage" (12th Edition) Chapter XXX Page 1172 'Aliasantanam Law' (Kannad, 'Alia' meaning sister's husband, or 'Marumuktayam Law', prevalent in former Coorg, Kerala, part of Karnatak and southern tip of Tamil Nadu and also customary law in North-Eastern States. For the story of Manu' see "Ivory Tower: Fifty-one Years of the Supreme Court" Appendix II-B. The saga of Manu Pages 258-268]

(ii) Right from the time of codification of tenancy law regarding agricultural land in Uttar Pradesh, i.e. right from the time of the North Western Provinces Rent Act 1873 or Recovery of Rents (Bengal) Act 1859 and Oudh Rent Act 1886 and also agricultural land in the enclaves and areas merged later in U.P." the law as framed and applied was the law relating to patriarchial society. Even when Zamindari Abolition and Land Reform's Act (I of 1951) came to be applied to different areas, it related to the partriarchal society.

(iii) Generally in rural areas in UP, the patriarchal group remains in the village whereas daughters go to the husband's place to live there and share and inherit property with their husbands. If 'chacha' (father's father's son) have the property, he generally lives in the village and will cultivate the land. But in case 'mama' (mother's mother's son) inherits it, he resides in another village and will sell his share to others; producing problem in the family and the village society. The amendment thus is a blueprint for creating friction and disputes and disruption of the joint family of the agriculturists on a wide scale. All tenancy laws are framed in the interest of better cultivation so that food for everybody is available for the growing millions. The amendment is counter productive.

(iv) This case amply illustrates this. One Swatantra-vir Singh son of Virendra-vir Singh resident of village Asalatpur Jarai, tahsil Chandausi, district Moradabad was bhumidhar of plot no.1023 (2.89 hec.) and co-tenureholder in various plots (total land being about 64 bighas). He was a person of unsound mind (a person incapable of looking after himself. His father died a natural death, but his mother was murdered on 11/12.09.2007. His maternal uncle Kunwarpal Singh took him away to his village Dampura alias Dammu Nagla, tahsil Bellary with malafide intention. The paternal aunt filed an application to be appointed his guardian over his person and property. As a counter-blast, the maternal uncle made a First Information Report against her son Satendra Singh, who was honourably acquitted of the charge by the Additional Sessions Judge Chandausi by the order dated 29.04.2010 (Annesure R.A.-3) in ST no.481 of 2008.

(v) Swatantra-vir Singh died on 02.01.2009 while in the custody of his maternal uncle under mysterious circumstances. The same day a First Information Report was lodged against the maternal uncle by the paternal aunt; this was pending. In the meantime the maternal uncle (mama) sold the whole property of Swatantra-vir Singh to various person of different and distant villages who in turn sold it to others of different and distant villages of other districts. (They have been impleaded now as respondents in the writ petition)

(vi) By UP Act 27 of 2004, Section 171 (2) clause (n) has been amended without any rhyme or reason in law by substitution of maternal uncle (mama) for paternal uncle (chacha). However 'father's father's son's son (chacha ka ladka) continues in the list of heirs and was not substituted by mother's mother's son's son (mama ka ladka).

(vii) The maternal uncle secured an order for mutation of his name from the Kanoongo. This order of Kanoongo however was stayed by the Tahsildar by his order-dated 15.01.2009 (Annexure 1 of the writ petition).

(viii) The full impact of Article 14 of the Constitution was not appreciated when it came into force. Gradually with the help of the decisions of the Supreme Court of USA and the interpretation put by it on the equality clause, our Supreme Court realized it as a charter of democracy and a basic feature of the Constitution. In United Kingdom also a new doctrine of interpretation came to be developed that the Parliament cannot be credited with having enacted what was unreasonable and therefore an interpretation, which is reasonable, should be adopted. Thus with the help of the aforesaid the true ambit and scope of Article 14 has now come to be realized and widened.

(ix) The principles, when applied, show that the proposed amendment is unreasonable, i.e. without any reason. Moreover the classification has no nexus with the object to be aduced. If the object was to empover the maternal uncle, which stands on a worse footing than the paternal uncle and is counter productive, the substitution of it is directly hit by Article 14 of the Constitution and is discriminatory on the face of it, as they stand equally in relation to the deceased. Further, although maternal uncle has been substituted for paternal uncle the paternal uncle's son is retained in the list of heirs making the list absolutely irrational, haywire and ununderstable. The amendment is without rhyme or reason. The object of amendment is also not clearly stated anywhere. The amendment is discriminatory and void and is hit by Article 14 of the Constitution."

12. In support of his submission, he relied on the following judgments :

(i) (1981) 4 SCC 675 (para 6), RK Garg Vs. Union of India.

(ii) (1981) 1 SCC 722 (para 16) Ajai Hasia Vs. Khalid Mujuib Sehrawsardy.

(iii) (1984) 1 SCC 222 (para 10) 6 Motor General Traders Vs. State of A.P.

(iv) (1989) 2 SCC 145 (para 9-10, 14-15, 20, 23), Deepak Sibbal Vs. Punjab University.

(v) (2001) 2 SCC 259 (para 3, 4) K Thimappa Chairman Vs. Central Board of Directors (SBI)

Submission of State respondents

13. Learned Standing Counsel reiterates the stand taken in the counter affidavit filed on behalf of respondent no.1 and 2. He further submits that Section 129 of the Act describes the classes of tenure holder being bhumidhar with transferable rights, bhumidhar with non-transferable rights, asami and government lessee. The bhumidhar is not the owner of the land rather he is merely a tenure holder. His rights including the general order of succession shall be governed by the provisions of the Act. Section 171 of the Act provides for order of succession. He submits that personal law has no application with regard to the tenancy rights which are governed by the provisions of the Act. It is submitted that the arguments of the petitioner as also reflected in the rejoinder affidavit are wholly misconceived in as much as married daughters, daughter's son and married sister etc. have always been kept in Section 171(2) of the Act. He submits that as per the the statement of object and reasons, Clause (n) was substituted for changing the order of succession keeping in view the changing social order in favour of nucleous family from traditional joint families. He further submits that the impugned provision has been enacted by the State legislature in view of the powers conferred under Article 246 of the Constitution of India read with entry 18 of list II of the VIIth Schedule which establishes the legislative competence of the State legislature to enact such provisions. He submits that the impugned provision neither violates Article 14 nor any of the provisions of the Constitution of India. He submits that impugned provision neither suffers from lack of legislative competence nor results in breach of fundamental rights or any other provisions of the Constitution of India and as such the provisions are valid. He submits that there is always presumption in favour of constitutional validity of a provision and the Court should make every effort to uphold its validity. He submits that the amendment represents the will of people.

Discussions and Findings

14. Before we proceed to deal with the arguments of the parties on the constitutional validity of the impugned provision, it would be appropriate to notice firstly the amendment made from time to time in Section 171 of the Act. Section 171 of the Act has been amended eight times namely by U.P. Act No. 16 of 1953, U.P. Act No. 20 of 1954, U.P. Act No. 37 of 1958, U.P. Act No. 8 of 1977, U.P. Act No. 29 of 1998, U.P. Act No. 35 of 2001, U.P. Act No. 27 of 2004 and U.P. Act No. 28 of 2008.

15. The provisions of Section 171 of the Act as it stands after the amendment by U.P.Act No. 27 of 2004 is reproduced below :

"171. General order of succession :- (1) Subject to the provisions of Section 169, when a bhumidhar or asami, being a male dies , his interest in his holding shall devolve upon his heirs being the relatives specified in Sub-section (2) in accordance with the following principles, namely :-

(i) the heirs specified in any one clause of sub-section (2) shall take simultaneously in equal shares;

(ii) the heirs specified in any preceding clause of sub-section (2) shall take to the exclusion of all heirs specified in succeeding clauses, that is to say, those in clause (a) shall be preferred to those in clause(b), those in clause(b) shall be preferred to those in clause (c), and so on, in succession ;

(iii) if there are more windows than one , of the bhumidhar or asami, or of any predeceased male lineal descendant, who would have been an heir, if alive, all such widows together shall take one share.

(iv) the widow or widowed mother or the father's widowed mother or the widow of any predeceased male lineal descendant who would have been an heir, if alive, shall inherit only if she has not remarried.

(2) the following relatives of the male bhumidhar or asami are heirs subject the provisions of sub-section (1), namely :-

(a) widow and the male lineal descendant per stirps :

Provided that the widow and the son of a predeceased son how low-so-ever per stirps shall inherit the share which would have devolved upon the predeceased son had he been alive ;

(b) mother and father;

(d) married daughter;

(e) brother and unmarried sister being respectively the son and the daughter of the same father as the deceased; and son of a predeceased brother , the predeceased brother having been the son of the same father as the deceased;

(f) son's daughter;

(g) father's mother and father's father;

(h) daughter's son;

(i) married sister;

(j) half sister, being the daughter of the samem father as the deceased;

(k) sister's son;

(l) half sister's son, the sister having been the daughter of the same father as the deceased;

(m) brother's son's son;

(n) mother's mother's son;

(o) father's father's son's son.

16. The order of Succession as provided under Section 171 and amended from time to time is summarised as under :

Clause

Originally enacted

As amended by U.P.Act No. 16 of 1953

As amended by U.P.Act No. 20 of 1954

As amended by U.P.Act No. 37 of 1958

As amended by U.P.Act No. 29 of 1998

As amended by U.P.Act No. 35 of 2001

As amended by U.P.Act No. 27 of 2004

As amended by U.P.Act No. 28 of 2008

(a)

male lineal descendant in the male line of descent provided that the son or sons of predeceased son how low-so-ever shall inherit the share which would devolve upon the deceased if he had been alive;

male lineal descendant in the male line of descent provided that the son or sons of predeceased son how-low-so-ever shall inherit the share which would devolve upon the deceased if he had been alive;

male lineal descendant in the male line of descent provided that the son or sons of a predeceased son how-low-so-ever shall inherit the share which would devolve upon the deceased if he had been alive;.

male lineal descendant in the male line of descent equal shares per stirps : provided firstly, that the son of a predeceased son how-low-soever shall inherit the share which would have devolved upon the pre deceased son, had he been alive:

Provided secondly, that, subject to the provisions of the first proviso, the share of a predeceased male lineal descendant will devolve upon his widow who has not remarried ; and provided thirdly that if no male lineal descendant in the male line of descent is alive, the inheritance shall be governed by Clause (b).

widow and the male lineal descendant in the male line of descent per stirps :

provided that the widow and the son of a predeceased son how low-so-ever per stirps shall inherit the share which would have devolved upon the predeceased son had he been alive;

widow and the male lineal descendant per stirps :

provided that the widow and the son of a predeceased son how low-so-ever per stirps shall inherit the share which would have devolved upon the predeceased son had he been alive;

widow, unmarried daughter and the male lineal descendant per stirps; provided that the widow and the son of a predeceased son how low-so-ever per stirps shall inherit the share which would have devolved upon the predeceased son had he been alive ;

(b)

widow;

widow and widowed mother and widow of a predeceased male descendant in the male line of descent, who have not remarried ;

widowed mother;

mother and father;

(c)

father;

widow of a male lineal descendant in the male line of descent who has not remarried;

father;

unmarried daughter;

(d)

mother, being a widow ;

father

father ;

unmarried daughter;

married daughter;

(e)

father's father

mother who has not remarried;

brother, brother being the son of the same father as the deceased;

brother, brother being the son of the same father as the deceased and a son of predeceased brother having been son of the same father as the deceased;

brother and unmarried sister being respectively the son and the daughter of the same father as the deceased; and son of a predeceased brother, the predeceased brother havig been the son of the same father as the deceased;

(ee)

Unmarried daughter

(f)

father's mother, being a widow;

brother being son of the same father as the deceased

brother, being the son of the same father as the deceased;

unmarried sister;

son's daughter;

(ff)

unmarried sister;

(g)

widow of a male lineal descendant in the male line of descent;

daughter ;

married daughter;

Married daughter

father's mother and father's father;

(h)

step mother, being a widow;

daughter's son ;

daughter's son;

Daughter's son;

daughter's son;

(i)

unmarried daughter;

brother's son, the brother having been son of the same father as the deceased;

brother's son, the brother having been son of the same as the deceased;

brother's son, the brother having been son of the same father as the deceased;

omitted

married sister ;

(j)

daughter's son;

brother being a son of the same father as the deceased;

father's father;

half sister being the daughter of the same father as the deceased;

(k)

brother, being the son of the same father as the deceased;

daughter's son;

father's mother, who has not remarried;

father's mother;

sister's son;

(l)

unmarried sister;

son's daughter;

half sister's son, the sister having been the daughter of the same father as the deceased;

(m)

brother's son, brother having been a son of the same father as the deceased;

Sister;

married sister

married sister;

brother's son's son;

(mm)

sister's son;

(n)

father's father's son;

half sister being the daughter of the same father as the deceased;

mother's mother's son;

(o)

brother's father son's son;

sister's son;

father's father's son's son;

(oo)

half-sister's son, the sister having been the daughter of the same father as the deceased;

(p)

father's father's son's son;

brother's son's son;

half-sister's son, the sister having been the daughter of the same father as the deceased;

(q)

father's father's son;

brother's son's son;

(r)

father's father's son's son;

father's father's son

(s)

father's father's son's son;

Note:- Portion quoted above with bold letters indicates amndments.

17. The constitutional validity of the Act (U.P.Act No. 1 of 1950) was upheld in its entirety by the Constitution Bench of Hon'ble Supreme Court in the case of Surya Pal Singh Vs. Government of State of U.P. and another AIR 1951 SC 252 para 237.

18. In the case of Ram Awalamb Vs. Jata Shanker (1968 RD 470 para 16, 18, 20, 22, 26, 29 and 41) a Full Bench of this Court had considered the consequences of vesting under the Act and held that in view of Section 6 of the Act, all rights, title and interest of intermediaries in every estate and all sub soil in such estates were to vest in the State, all grants and confirmant of all title of or to land in any estate so acquired or of or to any right or privilege in respect of such land or its land revenue, whether liable to resumption or not were determined and all rents etc. which were till then payable to intermediary vested in the State and were made payable to the State Government. The policy of the Act was that the tillers of the soil were not to be disturbed : rather enlarge rights were to be conferred on them. As from the date of vesting new rights were created in the tillers of the soil in actual possession of the soil regardless of the consideration whether the land was a sir land of the proprietors or was entered in the names of tenants or the sub-tenants. The actual tillers of soils became sirdar or bhumidhars according to the provisions of the Act. The interest in the land conferred upon the bhumidhars was a new right and, therefore, the question whether or not prior to the confirment of such rights the intermediary or tenant had heritable or transferable rights is hardly material. Referring to the Full Bench judgment in the case of Ramji Dixit Vs. Bhrigunath (1964 RD 80-FB) it was observed that an agricultural tenant has no religion and no personal law except as expressly provided in the Zamindari Abolition and Land Reform Act. It applies to Hindus, Muslims, Christians etc. regardless of their religion and , therefore, regardless of their personal law except as regards succession in certain cases. It contains its own provisions regarding inheritance and transfers, and when it has left certain matters to be governed by personal law, it has done so by an express provision. It was further held that Section 171 provides for a general order of succession on the death of a male bhumidhar, sirdar or asami. It was concluded in paragraph 29 of the report that the interest of each person in bhumidhari land passes according to order of succession given in Sections 171 and 174 of the Act and not by survivorship. The principle of survivorship among co-widows and co-bhumidhars can apply only when there is failure of heirs as mentioned in Sections 171 to 174 (see Dulli Vs. Imarti Devi 1966 RD 217 FB). In paragraph 41 of the report, it was held that after passing of the Act the entire property vested in the State and what was conferred by Section 18 of the Act was a new right which the persons on whom it had been conferred never had and they held subject to provisions of the Act.

19. In view of the aforementioned Full Bench pronouncements of this Court in the case of Ram Awalamb (supra) and in the case of Ramji Dixit (supra) and also in view of the provisions of Section 6 and 18 of the Act, it can safely be concluded that the State is the owner of the entire agricultural land while a bhumidhar holds agricultural land as tenant and his interest in the land including the transfer and inheritance is strictly subject to the provisions of the Act (U.P.Act No. 1 of 1951). In view of this, the agricultural land of a deceased bhumidhar can be succeeded by a person only in accordance with the order of succession given in Section 171 of the Act. In our view the Act (U.P.Act No. 1 of 1951) is a self contained Code. Rights and interest of a bhumidhar in a holding including the order of succession in case of a deceased bhumidhar or asami are subject to the provisions of the Act.

20. While Chapter- II of the Act consists of the provisions of acquisition of the interest of intermediaries and its consequences including vesting of estates in the State and settlement of certain lands with the intermediaries or cultivators as bhumidhar as tenant, Chapter - VIII which begins from Section 129 and ends with Section 230, deals with the provisions with regard to the tenure. Section 129 provides all classes of tenures namely, bhumidhar with transferable rights and non transferable rights, asami and government lessee. Section 130 of the Act providees that a bhumidhar with transferable rights shall have all the rights and be subject to all the liabilities conferred or imposed upon such bhumidhar by or under this Act. Since the rights of a bhumidhar itself are subject to the provisions of the Act and as such no one can claim the succession on death of a male bhumidhar or asami with regard to his interest in his holding except in accordance with the provisions of Section 171 of the Act which is part of Chapter - VIII.

21. Since the validity of the Act in its entirety was upheld by the Constitution Bench of Hon'ble Supreme Court in the case of Suryapal Singh (supra) and also since the impugned provisions are well within the legislative field provided in the Entry 18 of list II of the VIIth Schedule read with Article 246(3) of the Constitution of India and as such the first test i.e. the test of legislative of competence to enact the impugned provision stands satisfied. Thus, we hold that the impugned provision does not suffer from lack of legislative competence.

22. The argument of learned counsel for the petitioners that the impugned provision is violative of Article 14 of the Constitution of India being unreasonable and senseless in replacing the entry "father's father's son" (paternal uncle) by the entry "mother's mother's son"(maternal uncle), does not appear to be sound. The order of succession provided in Section 171 and quoted in para 16 above would show that by U.P.Act No. 27 of 2004 the order of succession was extensively amended which may be summarised as under :

"(i) In Clause (a), the words 'in the male line of descent' were omitted.

(ii) Clauses (b) and (c) were grouped together, and the 'mother and father' were made joint heirs in new clause (b).

(iii) The 'married daughter' placed at clause (g) was now made an heir at clause (d).

(iv) The 'Brother', 'unmarried sister' and the 'son of a predeceased brother' were grouped together under new clause (e).

(v) ' Son's daughter ' originally placed at clause (l) was now placed in new clause (f).

(vi) 'Father's father' and Father's mother', originally placed at clauses (f) and (k) respectively were bracketted together in new clause (g).

(vii) 'Married sister' was earlier an heir under clause (m). She has been placed in new clause (i).

(viii) 'Half sister' originally specified in clause (n) has now been included in new clause (j)

(ix) Sister's son has been upgraded from clause (o) to new clause(k).

(x) Half -sister's son, and Brother's son's son, originally placed at serial nos. (n) and (o) have now been placed at new clauses (l) and (m).

(xi) Father's father's son was an heir in old clause ( r). But he has now been dropped.

(xii) Father's father's son's son was the last heir in old clause (s). He continues to be the last heir at new clause (o)."

23. Now only 14 classes of successors to the deceased tenure holder have been provided as against the much larger number of classes provided earlier.

24. We have reproduced and discussed various amendments in Section 171 of the Act brought from time to time by the State Legislature which demonstrates that the legislature has recognized the changing social order and thus amended order of succession as well as the classes of persons to succeed bhumidhari rights in the agricultural land of a deceased male bhumidhar, by amending Section 171 from time to time. The amendments as discussed above shows that when the Act was originally enacted, the classes of persons in the order of succession were mainly from the paternal family except the daughter's son but subsequently, in view of the changing social order and to fulfil the will of people the classes of persons other than those forming part of paternal family were also included in the list from time to time. Thus, it cannot be said that inclusion of "mother's mother's son" in the order of succession under Section 171(2) of the Act is arbitrary or unreasonable. Moreover, the succession with regard to the tenancy rights is to be governed by the provisions of the Act and no one has any fundamental right to ask for either inclusion of a particular class of person even in the list in Section 171(2) or to change the order of succession. The statement of objects and reason of U.P.Act No. 27 of 2004 itself indicates that the amendment was brought in view of "the changing social order" in favour of " nucleous family from traditional joint families." Thus, we find that the impugned amendment is not violative of Artilce 14 of the Constitution of India.

25. Bare perusal of the entries amended from time to time in different clauses of Section 171 of the Act providing the order of succession would show that the amendments have been made to serve the needs of the society. The law exists to serve the needs of society which is governed by it. It must keep pace with the march of time with the heartbeats of the society and with the needs and aspirations of the people. The Act does not create proprietary interest. It creates only tenancy rights in bhumidhars. The concept of patriarchal and matriarchal society with reference to Hindu law have no application with respect to the order of succession under Section 171 of the Act (U.P.Act No. 1 of 1951) . In view of the law settled by two Full Benchs of this Court in the case of Ram Awalamb (supra) and Ramji Dixit (supra) and the judgment of Hon'ble Supreme Court in the case of Madhu Kiswar and others Vs. State of Bihar and others (1996) 5 SCC 125 para 51 "the devolution in the case of bhumidhar under the U.P.Zamindari Abolition and Land Reforms Act 1950 (U.P.Act No. 1 of 1951) is not affected by personal law as tenures created under the Act merely creates tenancy right and not proprietary rights in a holding ."

26. Thus the argument of learned counsel for the petitioners to attack the impugned Clause (n) on the allegation that agricultural society is a patriarchal society under Hindu law and , therefore, omission of clause (r) i.e. "father's father's son" and substitution of clause (n) "mother's mother's son" in Section 171 of the Act is arbitrary, deserves to be rejected.

27. The next submission of Sri Kunal Ravi Singh that the daughters go to husband's place to live there and share and inherit property with their husbands' family and father's father's son generally live in the village to cultivate land while mother's mother's son resides in another village, is wholly imaginary and baseless. There is no rule that mother's mother's son cannot reside or cannot be native of same village as of the deceased bhumidhar. It is not demonstrated even remotedly that the impugned provisions violates any fundamental rights of the petitioners or any of the provisions of the Constitution of India. The petitioners have completely failed to demonstrate that they have any fundamental right to succeed the interest of the deceased bhumidhar in his holding. The right of succession in the interest of holding of a deceased is the statutory right and is governed by the provisions of the Act (U.P.Act No. 1 of 1951) which is a self contained code. The legilslature in its wisdom, representing the will of people changed the order of succession and also included sister's son vide amendment by U.P.Act No. 16 of 1953. Vide amendment by U.P.Act No. 20 of 1954 son's daughter, sister, half sister and sister's son were also included above clause (q) i.e. father's father's son,in the order of succession in Section 171 of the Act. The order of Succession was further gone amended by U.P.Act No. 37 of 1958. By U.P.Act No. 8 of 1977 the word "sirdar" occurring in Section 171 was omitted. By U.P.Act No. 29 of 1998 amendments were made in Section 171(2) of the Act providing new order of succession which was again amended by U.P.Act No. 35 of 2001 substituting the new entry in Clause (e) and omitting Clause (I) in Section 171(2) of the Act. By U.P.Act No. 27 of 2004 various amendments were made as already noticed in para 22 above.

28. Thus Section 171 of the Act provided for succession of daughter and her son, sister and her son and half sister. Mother's mother's son is not a stranger but is one of the most helping and caring close relative. Therefore, if the legislature in its wisdom has included this class i.e. mother's mother's son in the order of succession under Section 171(2) of the Act., it cannot be said to be unreasonable, senseless and violative of Article 14 of the Constitution of India.

29. The view taken by us that the impugned provision is not violative of Article 14 of the Constitution of India, also finds support from the propositions stated by the Constitution Bench of Hon'ble Supreme Court in the judgment in RE The Special Courts Bill, 1978 reported in (1979) 1 SCC 380 para 72 which is reproduced below :

"(1) The first part of article 14, which was adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India. It enshrines a basic principle of republicanism. The second part, which is a corollary of the first and is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination of favouritism. It is a pledge of the protection of equal laws, that is, laws that operate alike on all persons under like circumstances.

(2) The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.

(3) The Constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. There fore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.

(4) The principle underlying the guarantee of article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.

(5) By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well-defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily.

(6) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.

(7) The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that differentia must have a rational relation to the object sought to be achieved by the Act.

(8) The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense above mentioned.

(9) If the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. In such cases, the power given to the executive body would import a duty on it to classify the subject-matter of legislation in accordance with the objective indicated in the statute. If the administrative body proceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature. its action can be annulled as offending against the equal protection clause. On the other band, if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory, irrespective of the way in which it is applied.

(10) Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. Abuse of power given by law does occur; but the validity of the law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power.

(11) Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of in equality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality.

(12) Whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violative of article 14 must be determined in each case as it arises, for no general rule applicable to all cases can safely be laid down. A practical assessment of the operation of the law in the particular circumstances is necessary.

(13) A rule of procedure laid down by law comes as much within the purview of article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated? are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination."

30. In the case of Anant Mills Vs. State of Gujarat reported in AIR 1975 SC 1234 para 20, the Hon'ble Supreme Court has held that :

"20. There is a presumption of the constitutional validity of a statutory provision. In case any party assails the validity of any provision on the ground that it is violative of Article 14 of the Constitution, it is for that party to make the necessary averments and adduce material to show discrimination violative of Article 14. No averments were made in the petitions before the High Court by the petitioners that the assessments before the coming into force of Ordinance 6 of 1969 bad been made by taking into account the rent restriction provisions of the Bombay Rent Act. Paragraph 2B and some other paragraphs of petition No. 233 of 1970 before the High Court, to which our attention was invited by Mr. Tarkunde, also do not contain that averment. No material on this factual aspect was in the circumstances produced either on behalf of the petitioners or the Corporation. The High Court, as already observed, decided the matter merely on the basis of a presumption. It is, in our opinion, extremely hazardous to decide the question of the constitutional validity of a provision on the basis of the supposed existence of certain facts by raising a presumption. The facts about the supposed existence of which presumption was raised by the High Court were of such a nature that a definite averment could have been made in respect of them and concrete material could have been produced in support of their existence or non-existence. Presumptions are resorted to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact. When, however, the fact to be established is of such a nature that direct evidence about its existence or non- existence would be available, the proper course is to have the direct evidence rather than to decide the matter by resort to presumption. A pronouncement about the constitutional validity of a statutory provision affects not only the parties before the Court, but all other parties who may be affected by the impugned provision. There would, therefore, be inherent risk in striking down an impugned provision without having the complete factual data and full material before the court. It was therefore, in our opinion, essential for the High Court to ascertain and field out the correct factual position before recording a finding that the impugned provision is violative of article 14. The fact that the High Court acted on an incorrect assumption is also borne out by the material which has been adduced before us in the writ petitions filed under article 32 of the Constitution."

31. In the case of Charanjit Lal Choudhary Vs. Union of India and others reported in AIR 1951 SC 41 para 10, the Hon'ble Supreme Court has held that there is presumption that the legislature understands and correctly appreciates the need of its people. In the case of Union of India Vs. Elphinstone Spinning and weaving Co. Ltd. and Ors. reported in AIR 2001 SC 724 para 9, the Hon'ble Supreme Court has laid down the law that the legislature does not exceed its jurisdiction. In the case of State of Bihar and others Vs. Smt. Charusila Dasi reported in AIR 1959 SC 1002 para 14, the Hon'ble Supreme Court has laid down the law that there is presumption that the legislature does not intend to exceed its jurisdiction. In the case of Kedar Nath Singh Vs. State of Bihar reported in AIR 1962 SC 955 para 26 the Hon'ble Supreme Court held that provision should be construed in the manner as will uphold its constitutionality. In the case of Corporation of Calcutta Vs. Libery Cinema reported in AIR 1965 SC 1107 the Hon'ble Supreme Court has laid down the law that the provision should be read in the manner as will make it valid. Similar view has been expressed by the Constitution Bench of Supreme Court in the case of Anandji Haridas and Co. (P) Ltd. Vs. S.P. Kasture and ors. reported in AIR 1968 SC 565, para 32. In the case of Sunil Batra Vs. Delhi Administration and ors. reported in AIR 1978 SC 1675 the Hon'ble Supreme Court observed that the legislature expresses wisdom of community. In the case of State of Bihar VS. Bihar Distilleries reported in AIR 1997 SC 1511, para 18, the Hon'ble Supreme Court observed that an Act made by legislature represents the will of people and cannot be lightly interfered with. In the case of Zameer Ahmad Latifur Rehman Sheikh Vs. State of Maharashtra and ors. Reported in J.T. 2010 (4) SC 256 para 34, the Hon'ble Supreme Court observed that every legally possible effort should be made to uphold the validity. In the case of Greater Bombay Co-operative Bank Ltd Vs. United Yarn Tex (P) Ltd. and others reported in (2007) 6 SCC 236 para 82 to 85 the Hon'ble Supreme Court observed as under :

" 82 The constitutional validity of an Act can be challenged only on two grounds, viz. (i) lack of legislative competence; and (ii) violation of any of the Fundamental Rights guaranteed in Part III of the Constitution or of any other constitutional provision. In State of A. P. & Ors. v. McDowell & Co. & Ors. [(1996) 3 SCC 709], this Court has opined that except the above two grounds, there is no third ground on the basis of which the law made by the competent legislature can be invalidated and that the ground of invalidation must necessarily fall within the four corners of the afore-mentioned two grounds.

83. Power to enact a law is derived by the State Assembly from List II of the Seventh Schedule of the Constitution. Entry 32 confers upon a State Legislature the power to constitute cooperative societies. The State of Maharashtra and the State of Andhra Pradesh both had enacted the MCS Act 1960 and the APCS Act, 1964 in exercise of the power vested in them by Entry 32 of List II of the Seventh Schedule of the Constitution. Power to the enact would include the power to re-enact or validate any provision of law in the State Legislature, provided the same falls in an entry of List II of Seventh Schedule of the Constitution with the restriction that such enactment should not nullify a judgment of a competent court of law. In the appeals / SLPs/petitions filed against the judgment of the Andhra Pradesh High Court, the legislative competence of the State is involved for consideration. Judicial system has an important role to play in our body politic and has a solemn obligation to fulfil. In such circumstances, it is imperative upon the courts while examining the scope of legislative action to be conscious to start with the presumption regarding the constitutional validity of the legislation. The burden of proof is upon the shoulders of the the incumbent who challenges it. It is true that it is the duty of the constitutional courts under our Constitution to declare a law enacted by Parliament or the State Legislature as unconstitutional when Parliament or the State Legislaturehad assumed to enact a law which is void, either for want of constitutional power to enact it or because the constitutional forms or conditions have not been observed or where the law infringes the fundamental rights enshrined and guaranteed in Part III of the Constitution.

84. As observed by this Court in CST v. Radhakrishnan in considering the validity of a Statute the presumption is always in favour of constitutionality and the burden is upon the person who attacks it to show that there has been transgression of constitutional principles. For sustaining the constitutionality of an Act, a Court may take into consideration matters of common knowledge, reports, preamble, history of the times, objection of the legislation and all other facts which are relevant. It must always be presumed that the legislature understands and correctly appreciates the need of its own people and that discrimination, if any, is based on adequate grounds and considerations. It is also well- settled that the courts will be justified in giving a liberal interpretation in order to avoid constitutional invalidity. A provision conferring very wide and expansive powers on authority can be construed in conformity with legislative intent of exercise of power within constitutional limitations. Where a Statute is silent or is inarticulate, the Court would attempt to transmutate the inarticulate and adopt a construction which would lean towards constitutionality albeit without departing from the material of which the law is woven. These principles have given rise to rule of "reading down" the provisions if it becomes necessary to uphold the validity of the law.

85. In State of Bihar & Ors. v. Bihar Distillery Ltd. & Ors. [(1997) 2 SCC 453], this Court indicated the approach which the Court should adopt while examining the validity/constitutionality of a legislation. It would be useful to remind ourselves of the principles laid down, which read: (SCC p.466, para 17):

"The approach of the court, while examining the challenge to the constitutionality of an enactment, is to start with the presumption of constitutionality. The court should try to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain it. The court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such defects of drafting should be ignored out as part of the attempt to sustain the validity/constitutionality of the enactment. After all, an Act made by the legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void. The same approach holds good while ascertaining the intent and purpose of an enactment or its scope and application."

In the same para, this Court further observed as follows:

"The Court must recognize the fundamental nature and importance of legislative process and accord due regard and deference to it, just as the legislature and the executive are expected to show due regard and deference to the judiciary. It cannot also be forgotten that our Constitution recognizes and gives effect to the concept of equality between the three wings of the State and the concept of "checks and balances" inherent in such scheme."

32. In the case of Promoters and Builders Association Vs. Pune Municipal Corporation (2007) 6 SCC. 143 para 9, the Hon'ble Supreme Court has laid down the law that while exercising legislative function, unless unreasonableness and arbitrariness is pointed out it is not open for the Court to interfere.

33. From these few decisions out of the long line of decisions with regard to the presumption of constitutional validity of a legislative enactment representing the will of people referred in preceding paragraphs when applied on the facts of the present case and the submissions made by the parties, we find that the petitioners have completely failed to rebut the presumption of constitutional validity of the impugned provision.

34. The petitioners have heavily relied the judgment of Supreme Court in the case of R.K.Garg Vs. Union of India and others (1981) 4 SCC 675. In this judgment, the Hon'ble Supreme Court has clearly held in paragraph 6 and 7 that reasonable classification is not prohibited and there is always a presumption in favour of constitutionality of a statute and the burden is upon the person who attacks it to show that there has been clear transgression of constitutional principles. The presumption of constitutionality is so strong that in order to sustain it the Court may take into consideration matters of common knowledge, matters of report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation. The facts of the present case and the submissions made by learned counsel for the petitioners clearly shows that the petitioners have failed to rebut the presumption of constitutional validity of the impugned provision.

35. The petitioners have next relied upon the judgment of Hon'ble Supreme Court in the case of Ajay Hassia and others Vs. Khalid Muzib Sehrabardi and others (1981)1 SCC 722 para 16. We find that it lays down the law that Article 14 strikes at arbitrariness and guarantees equality. The principles of law laid down by the Hon'ble Supreme Court are very fairly settled. The question is whether the principles laid down in this judgment supports the case of the petitioners on the facts of the present case, and the provisions under challenge. We find the answer to be in negative in view of detailed discussion and our findings in foregoing paragraphs.

36. The next judgment of Hon'ble Supreme Court relied by the petitioners is in the case of Motors General Traders and Another Vs. State of Andhra Pradesh 1984 (1) SCC 222 , para- 10. This judgment relates to a rent control matter. It lays down the law that equality clause contained in Article 14 requires that all persons subjected to any legislation should be treated alike under like circumstances and conditions. Equals to be treated equally and unequal not to be treated equally. Referring to the judgment of Ram Krishna Dalmia Vs. Justice S.R. Tendulkar reported in AIR 1958 SC 538, the Hon'ble Supreme Court noted the law as under :

" (a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself ;

(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles ;

(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds ;

(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;

(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation ;

(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation."

The aforesaid principles laid down by Hon'ble Supreme Court do not support the case of the petitioners in the present set of facts and the provisions in question.

37. The petitioners have also relied the judgment of Hon'ble Supreme Court in the case of Dipak Sibal Vs. Punjab University and another reported in (1989)2 SCC 145, T.Sham Bhat VS. Union of India reported in (1994) Supplement III SCC 340 and K.Thimappa, Chairman Vs. Central Board of Directors, SBI reported in (2001) 2 SCC 259. All these judgments pertain to Article 14 of the Constitution of India. The principles laid down in these judgments are similar to those as laid down by Hon'ble Supreme Court in the case of R.K.Garg (supra), Ajay Hassia (supra) and Motor general Traders (supra).

38. In view of the discussions made above we find that clause (n) substituted in section 171(2) of the Act by U.P. Act No. 27 of 2004 does not suffer from any infirmity or unconstitutionality and, therefore, we hold it to be valid.

39. In result the writ petition fails and is hereby dismissed. However, there shall be no order as to costs.

Order Date :- 10.10.2013

Ashish Pd.