Judgment :- Raghavan J.): 1. The question of law referred to us by the division bench which is hearing this appeal is whether S.7 and 7B of Act 1 of 1964, as amended by Act 35 of 1969, are ultra vires the Constitution. 2. The facts are these: The property in suit, 46 acres of garden land, belongs to a devaswam, and the present suit, brought on its behalf by its hereditary trustee, is for recovery of possession of the property with mesne profits from the hands of the defendants on the allegation that they are in unlawful possession on the strength of a void lease deed, Ext. Al dated 12 91954, executed in favour of the 1st defendant by the 2nd defendant's father, the then hereditary trustee who died in January 1958. In 1942, soon after the dismissal of a suit brought by him to set aside a notification made by the Madras Hindu Religious Endowments Board under S.65A of the Madras Hindu Religious Endowments Act, 1926, this trustee had granted a lease of the property for over five years in favour of one Rocky in violation of S.76 of that Act. In the same year, the executive officer appointed by the Endowments Board, who had taken over the management of the devaswam, sued for the recovery of the property on the ground that the lease in favour of Rocky was bad. He obtained a decree and took delivery on behalf of the devaswam in November 1944. In June 1954, the management of the devaswam was handed back to the trustee, and it was hardly three months thereafter that the trustee executed and registered the impugned lease deed, Ext. Al dated 12 91954, reserving an annual rent of Rs. 100/- for the 45 acres of garden land. It was on the finding that this lease was bad that the trial court gave the plaintiff the decree for possession against which defendants 1 and 3 have brought this appeal. 3. The term stated in the lease deed was four years; but the division bench has found that the lease was really intended to be for a much longer period, four years being falsely mentioned in fraud of S.29 of the Madras Hindu Religious and Charitable Endowments Act, 1951, which, by the time of the lease deed, had replaced the Madras Hindu Religious Endowments Act, 1926. That section says that any lease for a term exceeding five years of any immovable property belonging to a religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution of course, no such sanction was taken. The division bench accordingly pronounced the impugned lease null and void ab initio and of no legal effect whatsoever. But defendants 1 and 3 claimed they were "deemed tenants" under S.7 and 7B of Act 1 of 1964 and, therefore, entitled to fixity; and, on the validity of those provisions being questioned by the plaintiff, the bench has referred the question of their validity to us. 4. S.7 and 7B the lease deed here being a registered deed, so far as the latter section is concerned, we need consider only sub-section (1) thereof run as follows: 7 Certain persons occupying land honestly believing to be tenants, to be deemed tenants. Notwithstanding anything to the contrary contained in S.52 or any other provision of the Transfer of Property Act, 1882, or any other law, or in any contract, custom or usage, or in any judgment, decree or order of court, any person in occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, of the land of another situate in Malabar shall be deemed to be a tenant if he or his predacsssor-in-interest was continuously in occupation of such land honestly believing himself to be a tenant for not less than two years within a period of twelve years immediately preceding the 11th day of April, 1967. Explanation Notwithstanding anything contained in the Indian Evidence Act, 1872, where a person has been continuously in occupation of any such land for two years within the said period of twelve years, it shall be presumed until the contrary is proved that he has been in such occupation honestly believing himself to be a tenant. 7B. Certain persons occupying lands under leases granted by incompetent persons to be deemed tenants. 7B. Certain persons occupying lands under leases granted by incompetent persons to be deemed tenants. (1) Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of court, any person in occupation of the land of another at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, on the basis of a registered deed purporting to be a lease deed shall be deemed to be a tenant if he or his predecessor-in-interest was in occupation of such land on the 11th day of April, 1957, on the basis of that deed, notwithstanding the fact that the lease was granted by a person who bad no right over the land or who was not competent to lease the land. (2) Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of court, any person who on the 11th day of April, 1957, was in occupation of the land of another and continued to be in occupation of such land till the commencement of the Kerala Land Reforms (Amendment) Act, 1969, shall be deemed to be a tenant if the court has delivered a judgment or passed an order before the date of publication of the Kerala Land Reforms [Amendment] Bill, 1968, in the Gazette that the occupation by such person was on the basis of an oral permission or an unregistered deed purporting to be a lease deed granted by a person who had no right over the land or who was not competent to lease the land." 5. We shall proceed on the assumption, an assumption and nothing more the division bench has not gone into that question and we are expressing no opinion whatsoever with regard to it that the conditions stipulated in these provisions are here satisfied. What do these provisions do? We shall proceed on the assumption, an assumption and nothing more the division bench has not gone into that question and we are expressing no opinion whatsoever with regard to it that the conditions stipulated in these provisions are here satisfied. What do these provisions do? They make a person in unlawful occupation of another's land a tenant of the latter, notwithstanding that there is not the least semblance of the consent in which a tenancy originates, not even of acquiescence, not even of the owner having slept over his rights, (considerations informing the implied or quasi-tenancies of statutes like Kerala Act 29 of 1958), no matter how occupation was obtained, whether by fraud, or force, or breach of trust, and no matter that the person entitled to hold the land the owner as we shall call him though not necessarily a full owner has instituted a suit for recovery without the least delay and has obtained a decree for possession. All that is necessary so far as S.7 is concerned is that the trespasser should be in occupational the commencement of the Kerala Land Reforms (Amendment) Act, 1969, and that he or his predecessor-in-interest should have been continuously in occupation of the land honestly (even if most unreasonably) believing himself to be a tenant (of anybody at all, so far as the section goes, not necessarily of the owner) for not less than two years within the twelve years immediately preceding the 11th April 1967. And, by reason of the Explanation to the section, honest belief is to be presumed, until the contrary is proved, from the bare occupation. And all that is necessary so far as sub-section (1) of S.7B is concerned is that the trespasser should have been in occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969 on the basis of a registered deed purporting to be a lease deed and that either he or his predecessor-in-interest should have been in occupation on the 11th day of April 1957 on the basis of that deed, no matter that the lease was granted by a rank pretender who had no manner of right over the land or who, whether or not he had any interest in the land, was not competent to lease it. Both provisions, it would be relevant to note in the context of agrarian reform, would apply even if the owner was a cultivating tenant in occupation of no more than the ceiling limit. 6. The learned Advocate-General recognising that this was a clear infringement of the fundamental right in sub-clause (f) of clause (1) of Art.19, not coming within the saving in clause (5) of the article, has sought to support the impugned provisions only under Art.31 A. The short question then is whether the provisions are entitled to the protection of that article. 7. The land here in question, it is not disputed, is held for the purpose of agriculture. It is also janmam land, and there can be no doubt that it is an estate within the meaning of Art.31A. The impugned provisions, no doubt, effect modification of rights in an estate in that they make a tenant of a trespasser only a trespasser, not a true tenant, would require their aid and impose him on the owner of the land indeed, having regard to the provisions of Ss 25A, 27, 72, 72A, 72H and 72 I of the Act, it might well be said that they extinguish the rights of the owner. But that, as the Supreme Court has repeatedly held we have enlarged on this aspect with reference to the decided cases in Narayanan Nair v. State of Kerala 1970 KLT. 659 is not enough to earn for them the protection of Art.31A. They must be a measure of agrarian reform or something ancillary thereto. It is not enough that they are included in a statute which by and large, is concerned with agrarian reform, They must themselves pass the test, or else form an integral part of such a statute in the sense that they are necessary or desirable for the proper working of the statute. 8. We do not think that the impugned provisions can be regarded as a measure of agrarian reform entitled to the protection of Art.31A. As we have already stated, it is not every law that extinguishes or modifies rights in estates that gets the protection of that article. It is not to be thought that Art.31A does away altogether with Art.19(1) (f) in so far as agricultural land is concerned for the purposes of this case we need not consider other kinds of land. As we have already stated, it is not every law that extinguishes or modifies rights in estates that gets the protection of that article. It is not to be thought that Art.31A does away altogether with Art.19(1) (f) in so far as agricultural land is concerned for the purposes of this case we need not consider other kinds of land. What it really does is to enlarge the scope of the saving in clause (5) of Art.19 so as to save measures of agrarian reform, conceived in the spirit of the preamble to the Constitution, and, more particularly, of Art.38 and 39 for the furtherance of social and economic justice. The object of the article is not to shield a law doing away with rights in agricultural land as it pleases; its object is to protect laws for the equitable distribution of agricultural land, and for the amelioration of those engaged in the pursuit of agriculture by conferring rights on those in lawful occupation of such land. The touchstone is still the interests of the general public, and it is only a law that passes that test that can be regarded as a measure of agrarian reform in fact, the very word, "reform" implies that so as to get the protection of Art.31A, thus saving it from attack under Art.19 (1)(f). 9. Only orderly and peaceable progress in accordance with law can be in the interests of the general public and be regarded as a measure of reform the protection of those who, to use a popular expression, have taken the law into their own hands, can hardly be a measure of reform in the interests of the general public, however deserving they might be of what they have helped themselves to in defiance of the law. Even the slogan, "Land for the tiller" presupposes a lawful and not a trespassing tiller. Supposing a law were to be made and judging by recent trends that cannot be lightly dismissed as impossible legalising what has come to be known as land-grabbing (with violence thrown in for good measure) and affirming the distribution made by the self-appointed leveller of other people. So long as the land is agricultural land, such a law would undoubtedly be a law modifying rights in an estate. So long as the land is agricultural land, such a law would undoubtedly be a law modifying rights in an estate. It would give land to the land-hungry, possibly to the landless, and it might make for a more equal distribution of land for purposes of cultivation. Would all this make it a measure of agrarian reform entitled to the protection of Art.31A? We do not suppose any one would say that it would in a court of law. What do the impugned provisions do but legalise grabbing of a kind by conferring rights of tenancy on the grabber? Under S.7, he has only to be in occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, so long as he or his predecessor-in-interest was continuously in occupation for not less than two years within a period of twelve years immediately preceding the 11th April 1967. He must then be presumed to have entertained the honest belief demanded by the section, the honest belief that he is a tenant of somebody or other, a purely unilateral mental element for which the owner need in no way be responsible the contray must always be difficult, if not well-nigh impossible of proof. And, under sub-section (1) of S.7B, all that is required is that the grabber should have been in occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, and should have armed himself with a registered deed purporting to be a lease deed from some person or other, whether that person had any interest in the land or competence to grant the lease, or was a rank pretender, and on the basis of which deed, either the grabber or some grabber under whom he claims was in occupation on the 11th April 1957. And under neither section does it matter that the owner had without the least delay, instituted a suit for recovery of the land and even obtained a decree therefor. Or even that the owner was that first favourite of agrarian reform, a cultivating tenant. And under neither section does it matter that the owner had without the least delay, instituted a suit for recovery of the land and even obtained a decree therefor. Or even that the owner was that first favourite of agrarian reform, a cultivating tenant. At the best of times, it was not difficult for a person in unlawful occupation of land to protract legal proceedings for its recovery beyond the periods of occupation required by the impugned provisions; now, by reason of successive statutes under which stay of such proceedings could readily be obtained (Ordinance 1 of 1957, Act 1 of 1957, Act 18 of 1962, Act 7 of 1963, Act 12 of 1966 and Act 9 of 1967) this has been all too easy. 10. The affidavit filed on behalf of the State is at pains to make out that the impugned provisions are only designed to make tenants of persons who were, in fact, tenants (if not of the true owner at least of some person having prima facie title) but who from defect or confusion of title or from lack of evidence would be unable to establish their tenancy in a court of law. It avers that it is not true to say that the provisions are intended to clothe trespassers with tenancy rights. But that is far from being the case. From a bare reading of the provisions, they do clothe rank trespassers with tenancy rights, persons in unlawful occupation who might have obtained possession (may be of land held by infants and others unable to protect themselves) by fraud or force or breach of trust of that this very case is as good an illustration as any. 11. We do recognise that there might be persons (perhaps a large number of persons) entitled to the benefit of the impugned provisions who cannot properly be described as rank trespassers or grabbers, and the conferment of tenancy rights on whom might be a measure of agrarian reform. But there is no denying that the provisions do extend their favour to rank wrong-doers, the rewarding of whose wrongs cannot be in the interests of the general public and, therefore, cannot be a reform. But there is no denying that the provisions do extend their favour to rank wrong-doers, the rewarding of whose wrongs cannot be in the interests of the general public and, therefore, cannot be a reform. The subject-matter or the field being inseverable, and the separation of the sheep from the goats depending on circumstances in their very nature variable, we do not think it possible to so construe the provisions as to exclude the latter from their ambit with a view to their salvage. 12. It is true that the legislatures are the chosen instruments of the people for making the laws that are to govern them and mast be presumed to be wise to their needs. But it is no less true that the courts are the chosen instruments of the people for upholding the rights they have given unto themselves by the Constitution, and, for that purpose, determining the measure of those rights and testing the laws made by the legislature against the touchstone of the paramount law of the Constitution that is not to sit as a super chamber of the legislature. So long as the fundamental right to property is vouchsafed by the Constitution, the striking down of a transgression of that right entails no philosophy but the philosophy of the Constitution. Where, as here, the transgression is demonstrable, the initial presumption of constitutionality can be of no avail there can be no surrenderor the judgment of the court to that of the legislature. 13. We hold that S.7 and sub-section (1) of S.7B of Act 1 of 1964 as amended by Act 35 of 1969 are not entitled to the protection of Art.31A and are, therefore, bad for offending Art.19 (1) (f) of the Constitution. Mathew J. 1A. The facts of the case have been stated in the judgment of my learned brothers and it is not necessary to rehearse them. 2A. The question of law referred to the Full Bench is whether S.7 and 7B of Act 1 of 1964 as amended by Act 35 of 1969 are ultra vires the Constitution. That would depend on the answer to the question whether these sections deal with agrarian reform or matters ancillary thereto. Let us take S.7 and see its content. 2A. The question of law referred to the Full Bench is whether S.7 and 7B of Act 1 of 1964 as amended by Act 35 of 1969 are ultra vires the Constitution. That would depend on the answer to the question whether these sections deal with agrarian reform or matters ancillary thereto. Let us take S.7 and see its content. A person was inoccupation at the commencement of the Kerala Land Reforms (Amendment) Act, Act 35 of 1969, of land belonging to another situate in Malabar. He or his predecessor-in-interest was continuously in occupation of the land honestly believing himself to be a tenant for not less than 2 years within a period of 12 years preceding the 11th day of April 1967. Such a person is to be deemed to be a tenant of the owner of the land. 3A. Now, what is there in the section for us to say that it does not deal with agrarian reform? Its object is to provide for fixity of tenure to one who tills the land by making him a tenant. The concept of agrarian' reform is not a static one. Its content varies with the needs of the rural population. In the majority judgment in Narayanan Nair v. State of Kerala 1970 KLT. 659 it is stated: "We have been taken through various reports by experts and expert bodies, both Indian and international, and through the definitions of the word, 'agrarian' in a number of dictionaries in an attempt to show what exactly is comprised within the expression'agrarian reform'. We think it unnecessary to refer to them, but, we might say that the following definitions of the word 'agrarian in some of the standard dictionaries, indicate the true scope of the expression 'agrarian reform' 'Of. relating to, or connected with cultivated land, or its cultivation: pertaining to the advancement of agricultural groups; relating to the redistribution of landed property'. We think it unnecessary to refer to them, but, we might say that the following definitions of the word 'agrarian in some of the standard dictionaries, indicate the true scope of the expression 'agrarian reform' 'Of. relating to, or connected with cultivated land, or its cultivation: pertaining to the advancement of agricultural groups; relating to the redistribution of landed property'. To put it in a nutshell, the slogan, 'land for the tiller' seems to have informed the article as far as possible, the means of production should be in the hands of the actual producer." And I said in my judgment in that case that agrarian reform is designed to promote the acquisition of ownership of land by its tiller, and therefore, giving opportunity to the cultivator of land to acquire fixity of tenure or ownership is a measure of agrarian reform. Tested in the light of the observations in that case, I cannot see why S.7, which enables among other things, a person in occupation of land belonging to a Devaswom in pursuance to a lease granted by its trustee for a period of more than 5 years to become a tenant, and to acquire fixity of tenure under S.13, is not a measure of agrarian reform, notwithstanding the fact that the prior sanction of the commissioner under S.29 of the Hindu Religious and Charitable Endowments Act was not obtained for the lease. The position of the defendants 1 and 3, even on the assumption that the lease under which they are in occupation is null and void, is not that of rank trespassers. I think, as my learned brothers, that the order of reference proceeds on the assumption that all the elements required by S.7 are satisfied in this case, as otherwise an adjudication of its constitutional validity would be uncalled for. The honest belief of defendants 1 and 3 that they are tenants puts a different colour on the nature of their occupation of the land. And as they are the tillers of the land, why is it that S.7 which makes them deemed tenants so that they may acquire fixity under S.13 is not a measure of agrarian reform? Can we positively postulate that the section does not deal with a measure of agrarian reform? If there is any doubt about it, should not the presumption of constitutionality operate? 4A. Can we positively postulate that the section does not deal with a measure of agrarian reform? If there is any doubt about it, should not the presumption of constitutionality operate? 4A. It is said that the position of defendants 1 and 3 is that of land-grabbers or land-stealers and making them deemed tenants and conferring fixity on them under S.13 can by no stretch of imagination be said to be in the public interest. To equate a person honestly believing himself to be a tenant with a rank trespasser is to lose sight of a well-known distinction adopted by the legislature in other legislations and sanctioned by jurisprudence. The Roman law required that possession must be bona fide and justa causa for usucapion. The Kerala Compensation for Tenants Improvements Act, 1958, Act 29 of 1958, makes more or less the same distinction for awarding compensation for improvements. (See the definition of 'tenant' in S.2 of that Act). As I said, the emphasis in S.7 that the person in occupation must honestly believe himself to be a tenant puts a different complexion upon the nature of his occupation. A rank trespasser can never honestly believe that he is a tenant. That apart, take the case of a tenant whose tenancy has been terminated by a, notice to quit by the landlord, or even a worse case where a landlord has obtained a decree for eviction of a tenant after determining the tenancy. If still the tenant remains in possession he is surely a trespasser. Yet according to the rulings of this court he is a tenant entitled to fixity of tenure under S.13. (See the decisions in Gopinatha Panicker v. Joseph 1965 KLT. 870 and Varghese v. Thomas 1966 KLT. 595 rendered under S.13 of Act I of 1964, the wording of which is practically the same as the present S.13.) A trespasser is made a tenant with fixity of tenure and prima facie it would offend the right of the landlord to hold property under Art.19 (1). But is it possible to contend successfully that making such a trespasser a tenant in order to enable him to acquire fixity of tenure is not agrarian reform? I think not. But is it possible to contend successfully that making such a trespasser a tenant in order to enable him to acquire fixity of tenure is not agrarian reform? I think not. Why is it then that making a person in occupation of the land of another honestly believing himself to be a tenant of the latter, though he might be a trespasser in the eye of the law, a deemed tenant, not a measure of agrarian reform? 5A. The legislature was confronted with the problem of protecting the occupation of lands by a large number of persons honestly believing themselves to be tenants in that part of the State, and S.7 was enacted to solve that rural problem. Otherwise a great source of discontent among a large section of rural population in that area of the State would have remained unremoved. 6A. The burden of proving that a person is in occupation honestly believing himself to be a tenant would be difficult in many cases, and so the legislature enacted the Explanation to the section in the form of a rebuttable presumption placing the burden of negativing that a person is in occupation of the land honestly believing himself to be a tenant upon the landowner. If the presumption were unrebuttable I could have understood the argument about the unreasonableness of the presumption. I do not know how it is possible to characterise a measure like this as not in the public interest. What is the yardstick to decide whether the measure is in the public interest or not? If the legislature found that there are a number of persons who are in possession of lands belonging to others honestly believing themselves to be tenants, would it be in the interest of rural economy or peace to allow these persons to be evicted from the lands at the whim of the landlords? If the legislature found that there are a number of persons who are in possession of lands belonging to others honestly believing themselves to be tenants, would it be in the interest of rural economy or peace to allow these persons to be evicted from the lands at the whim of the landlords? If really there are a number of persons in the Malabar area of the State who are in occupation of land belonging to others in the honest belief that they are tenants, and if the legislature in its wisdom thought that they should be protected from eviction by the landowners by giving them fixity of tenure by making them deemed tenants, to say that it is not a measure of agrarian reform, because it is not in the interest of the public, is to allow a particular political philosophy to influence our decision. To say that such a measure is not a reform, as it is not for something better, is to identify ourselves with that particular school of thought which regards any interference with property by a legislature a retrograde step. Mr. Justice Holmes said: "We (judges) too need education in the obvious to learn to transcend our own convictions and to leave room for much that we hold dear to be done away with short of revolution by the orderly change of law" [See 'Holmes' Collected Legal Papers, 1920', page 295.] I will assume that S.7 makes a savage invasion on the rights of landowners, but what has that to do with my conclusion whether it is a measure of agrarian reform or not? Art.31A of the Constitution was enacted to enable the legislature to deprive the landowners of their fundamental rights under Art.14,19 and 31, when the legislation is one for agrarian reform. The dynamic idea behind the scheme of agrarian reform is that the actual tiller of the land should have permanent right of occupancy or ownership in the land. If the legislature thought that a person actually in possession for a sufficiently long time honestly believing himself to be a tenant, should be protected from eviction at the whim of the landowner, I do not think, we can say that it is not a measure of agrarian reform. I think that S.7 deals with a measure of agrarian reform, and is, therefore, protected by Art.31A. 7A. I think that S.7 deals with a measure of agrarian reform, and is, therefore, protected by Art.31A. 7A. As I have found S.7 to be valid, it is not necessary for me to decide whether S.7B is valid or not. It is a wise tradition with courts not to adjudge on the constitutionality of a law unless it is absolutely necessary for the disposal of the case. As S.7 has been found by me to be valid, the case can be disposed of on that basis. It would make no difference to the decision of this case even if S.7B is found to be invalid. I therefore decline to pass upon its constitutional validity. Justice Brandies in Ashwander v. Tennessee Valley Authority 297 US. 288 has formulated certain self cautionary rules for courts when adjudicating on constitutional questions. "The court will not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case. The court will not formulate a rule of constitutional law broader than as required by the precise facts to which it is to be applied' It My answer, therefore, is that S.7 is valid; and as the case can be disposed of without pronouncing upon the validity of S.7B, I decline to pass upon its validity By Court: Order in accordance with the decision of the majority.