State of Bihar Vs. Rameshwar Pratap
Narain Singh& Ors  INSC 183 (25 April 1961)
GUPTA, K.C. DAS SINHA, BHUVNESHWAR P.(CJ)
SARKAR, A.K. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1961 AIR 1649 1962 SCR (2) 383
CITATOR INFO :
R 1962 SC 694 (28,65) R 1962 SC 723 (10) R
1965 SC 632 (11) F 1967 SC 427 (3) D 1969 SC1100 (14) R 1974 SC1480 (15)
Mela-Right of ex-proprietors to hold Melas
after abolition of proprietary tenures-Enactment empowering State Government to
hold such Melas-If violative of fundamental rightsLegislative
competence-Acquisition without public PurposeConstitution of India, Arts. 14,
19, 31, 31A, 246-Bihar Land Reforms Act, 1950 (Bihar Act 30 of 1950), ss. 4,
6-Bihar Land Reforms Amendment Act, 1959 (Bihar Act XVI of 1959), ss. 4, 7A,
After the estates and tenures of proprietors
or tenureholders had passed to and became vested in the State by virtue of the
Bihar Land Reforms Act, 1950, the Revenue Authorities interfered with the
rights of those exproprietors and ex-tenure holders to hold Melas on lands
which were occupied by them thereafter as occupancy raiyats and collected tolls
from such Melas on behalf of the Government whereupon those intermediaries made
applications to the High Court for writs restraining the Government from such
interference which were allowed by the High Court.
During the pendency in this Court of these
appeals preferred by the Officers of the State of Bihar against the order of
the High Court the Bihar Land Reforms Amendment Act, 1959, was passed amending
the Bihar Land Reforms Act of 1950 with retrospective effect by which the word
Mela was added after the words jalkars, hats and bazars in s. 4, cl. (b) of the
amended Act. Further amendments provided inter alia that the State Government
and not the intermediaries except with the consent of the State Government
shall have the right to hold such Melas. The main question arising for decision
in these appeals and certain other applications made to this Court under Art.
32 of the Constitution of India was whether the amending legislation violated
Arts. 14, 19 and 31 of the Constitution.
Held, that the Bihar Land Reforms Amendment
Act, 1959, is a law providing for the acquisition by the State of rights in an
"estate" within the meaning of Art. 31A of the Constitution and even
if it is assumed that it abridges the rights conferred by Arts. 14, 19 and 31
of the Constitution its provisions are not void on that ground.
The amending legislation was within the
legislative competence of the Legislature under Art. 246 of the Constitution
and after its amendment the legislative list permitted the State 383
Legislature to enact a law of acquisition even without a public purpose.
The State of Bihar v. Sir Kameshwar Singh,
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 27 of 1960 WITH
Civil Appeals Nos. 574, 92 411 and 285 of 1960, 351 of 1959 and Petitions Nos.
20 and 106 of 1960.
Appeal by special leave from the judgment and
order dated August 6, 1957, of the Patna High Court in M. J. C. No. 57 of 1956.
Lal Narayan Sinha and S. P. Varma, for the
appellants (in C.
A. No. 27 of 1960).
D. Goburdhan, for respondents Nos. 1 to 7.
K. K. Sinha, for the appellant (in C. A. No.
574 of 1960).
D. P. Singh, for the respondent.
D. P. Singh, for the appellants (in C. A. No.
92 of 1960).
D. Goburdhan, for the respondents.
R. C. Prasad, for the appellants (in C. A.
No. 411 of 1960).
L. K. Jha, S. K. Jha and K. K. Sinha, for the
S. P. Varma, for the appellants (in C. A. No.
285 of 1960).
L. K. Jha, B. K. Garg and S. C. Agarwal, for
S. P. Varma, for the appellant (in C. A. No.
351 of 1959).
R. K. Garg and S. C. Agarwala, for the
Tarkeshwar Dayal, K. K. Sinha and R. C.
Prasad, for the petitioners (in Petition No. 20 of 1960).
Lal Narayan Sinha and S. P. Varma, for
respondent No. 1.
R. K. Garg and S. C. Agarwala, for the
petitioner (in Petition No. 106 of 1960).
S. P. Varma, for respondent No. 1.
384 1961. April 25. The judgment of the Court
was delivered by DAS GUPTA, J.-The common question which arises for decision in
this group of cases is as regards the validity of the Bihar Act No. XVI of 1959
(Bihar Land Reforms Amendment Act, 1959), in so far as it amends with
retrospective effect sections 4 and 6 of the Bihar Land Reforms Act, 1950, to
be indicated later, and inserts the new sections, s. 7B and s. 7C in that Act.
It appears that sometime after the Bihar Land Reforms Act became law and action
was taken under section 3 thereof by the State Government issuing
notifications, declaring that the estates or tenures of proprietors or
tenure-holders, specified in the notifications had passed to and become vested
in the State, the Revenue authorities started interfering with the rights of
those ex-proprietors and ex-tenure holders to hold Melas on lands of which they
were thereafter in occupation as occupancy raiyats under the State and started
settling rights to realise tolls from such Melas on behalf of the State
Government. Aggrieved by this action taken by the Revenue authorities on behalf
of the State Government applications were made by several of these erstwhile
intermediaries now occupancy raiyats to the High Court of Patna for writs restraining
the Government and its officers from such interference with their rights.
Five such applications have given rise to the
five appeals which are numbered as C. A. No. 351 of 1959, C. A. No. 27 of 1960,
C. A. No. 92 of 1960, C. A. No. 285 of 1960 and C. A. No. 411 of 1960. The High
Court held that in view of the provisions of s. 6 of the Bihar Land Reforms Act
(before its amendment) and the fact that the provisions made in s. 4(a) of the
Act about the consequences that would ensue on the vesting of an estate or
tenure in the State were "subject to" the provisions of s. 6, the
State had no right to hold Melas on the Bakasht lands of the
ex-intermediaries-now occupancy raiyats. Accordingly the High Court allowed the
applications and issued writs as prayed for. Against these orders of the High
Court the State of Bihar and its officers have preferred the 385 five appeals
mentioned above, after obtaining special leave from this Court.
Sometime after special leave was obtained by
these appellants the Bihar Legislature enacted in 1959, the Bihar Land Reforms
Amendment Act, 1959, (Bihar Act XVI of 1959).
This Act amended inter alia section 4, cl.
(b) of the Bihar Land Reforms Act, 1950, by adding the word "Mela"
after the words "jalkars, hats, and bazars" and by omitting the words
"subject to the subsequent provisions of this Chapter" in cl. (a) of
section 4. It also amended section 6 of the 1950 Act by substituting for the
words "Notwithstanding anything contained in this Act" the words "subject
to the provisions of sections 7A and 7B". Of these s. 7B provides that
"Where on any land deemed to be settled with the intermediary under the
provisions of section 5, section 6 or section 7, a Mela was being held by the
intermediary at any time within 3 years of the date of vesting, the right to
hold such Mela on such land shall, with effect from such date, vest in the
State and notwithstanding anything contained in any law, the State shall have
and the intermediary shall not, except with the consent of the State Government
have the right to hold such Mela on such land or to do anything which may
prejudicially affect such Mela". Section 7C contains provisions as regards
settlement of hats, bazars or melas referred to in s. 7A and section 7B and
provides inter alia that settlements will be made with the outgoing
intermediary or his heir after application is received from him and if there
are several of them who apply for settlement, with the most suitable of them.
The Amending Act made the amendments mentioned above, except the insertion of
a. 7C, retrospective, with effect from the date of enactment of the parent Act.
The Amending Act had already been passed, when several other applications under
Art. 226 of the Constitution for similar relief against the interference by the
Government with the intermediaries' right to hold Melas came up for
consideration before the High Court. The High Court rejected these applicants'
attack against the validity of the Amending Act and held that in view of the
provisions 386 now made the applicants were not entitled to any relief.
Civil Appeal No. 574 of 1960 has been
preferred by one of such applicants on a certificate granted by the High Court.
The two applications under Art. 32 of the
Constitution were filed in this Court for writs of mandamus against the State
of Bihar and its officers restraining them from interfering with the
applicant's right to hold melas on their lands.
Both of these were filed after the Bihar Land
Reforms Amendment Act, 1959, had become law.
It is obvious that if the Amending Act is
valid legislation, in so far as it amends with retrospective effect s. 4 and s.
6 of the 1950 Act as mentioned above and
inserts section 7B, the ex-intermediaries have not and the State has the right
to hold melas on the Bakasht lands. The main question therefore is whether this
is a valid legislation. To answer this question we have to examine in the first
place whether the Bihar Legislature which enacted the Amending Act had on that
date the legislative competence under Art. 246 of the Constitution to do so;
and secondly, whether the law was void because of the provisions of Art. 13 of
the Constitution. The Amending legislation was clearly within Item 42 of the
Concurrent List, being a law as regards acquisition of property.
Mr. Tarkeshwar Dayal, who appeared on behalf
of one of the ex-intermediaries submitted that this was really not a matter of
land reform; the purpose of the Amending legislation being only to augment the
revenue of the State.
It is true that the law by taking the right
to hold melas from certain persons and giving it to the State is likely to
augment the revenues of the State. It may well be that this object of
augmenting the revenues was one of the main purposes behind the Amending
legislation. That however is no reason to think that this legislation is not
also concerned with land reform. It is however unnecessary for us to consider
this question further, for whether it is a law as regards land reform or not,
it is clearly and entirely as regards acquisition of property. The question of
the legislature having attempted legislation not within 387, its competence by
putting it into the guise of legislation within its competence does not even
arise. The conclusion that necessarily follows is that the amending legislation
was within the legislative competence of the Bihar Legislature under Art. 246
of the Constitution.
This brings us to the main question in
controversy, viz., whether the amending legislation is void on the ground that
it violates Arts. 31, 19 and 14 of the Constitution. A complete answer to this
question is furnished in favour of the State if this is a law within the saving
provisions of Art. 31A. Art. 31A was enacted in the Constitution by the
Constitution (First Amendment Act) with retrospective effect from the
commencement of the Constitution. It was further amended by the Constitution
(Fourth Amendment) Act, also with retrospective effect from the date of the
commencement of the Constitution. This Article provides inter alia, that
notwithstanding anything contained in Art. 13, no law providing for the
acquisition by the State of any estate or of any rights therein...............
shall be deemed to be void on the ground that it is inconsistent with or takes
away or abridges any of the rights conferred by Arts. 19, 31 and 14 of the
Constitution. Is the amending legislation a law "providing for the
acquisition by the State of any estate or of any rights therein?" Two
arguments have been advanced on behalf of the ex-intermediaries to convince us
that it is not such a law. The first argument is that what the amending
legislation provides for is not "acquisition" at all within the
meaning of Art. 31A as it is not "acquisition" for a public purpose.
It has been urged that the purpose is a mere augmentation of revenue.
It does not appear to us that when the right
of holding the Mela is taken over by the State the only purpose is the
augmentation of revenue. There is scope for thinking that the legislature
believed that melas would be better run and be more in the interests of the
general public when run by the State than when they are left without control in
the hands of private individuals with whom the profit motive is 388 likely to
be the sole guiding principle. It is unnecessary however to answer this question
for, in our opinion, a law, may be a law providing for "acquisition"
even though the purpose behind the acquisition is not a public purpose.
It is important to notice that the
Constitution (Fourth Amendment) Act made important alterations in Art. 31 also.
One of the amendments of Art. 31 was that
clause 2 now provides that no property shall be compulsorily acquired, (1) save
for a public purpose and (2) save by authority of a law which contains
provisions for compensation for the property acquired and either fixes the
amount of compensation or specifies the principles on which and the manner in
which the compensation is to be determined and given. Then, Art. 31 A provides
inter alia that a law providing for "acquisition" will not be void on
the ground that it is inconsistent with or takes away or abridges a right
conferred by Art. 31. Reading the two articles together as they stand after the
fourth amendment of the Constitution it becomes obvious that when Art. 31A
speaks of a law of "acquisition" it contemplates a law which may be
for acquisition, though not for a public purpose and lays down that even though
this will be in violation of the fundamental right guaranteed by the first part
of Art. 31(2) the law will not be void because of such violation.
The question whether the validity of a law
for compulsory acquisition of property by the State can be challenged on the
ground that the "acquisition" is not for a public purpose bad to be
considered by this Court even before the amendment of Art. 31(2) as mentioned
above in The State of Bihar v. Sir Kameshwar Singh (1). Art. 31(2) as it then
stood did not in so many words provide that no acquisition can be made save for
a public purpose; but it was argued on behalf of the State that such a
provision was implicit in the words of Art. 31(2). This argument was rejected
by Mahajan and Chandrasekhara Aiyar, JJ., but it was accepted by Patanjali
Sastri, C. J., and Das, J., both of whom held that the requirement of public
(1)  S.C.R. 880.
389 purpose being a condition for compulsory
acquisition laid down by Art. 31(2) the law was saved in spite of the violation
of such condition by Art. 31(4) and also Art. 31A.
Mukherjea, J., also said that the requirement
of public purpose was a condition implied in the provisions of Art.
31(2). His Lordship then added: "For my
part, I would be prepared to assume that cl. (4) of Art. 31 relates to
everything that is provided for in clause (2) either in express terms or
impliedly and consequently the question of the existence of a public purpose
does not come within the purview of an inquiry in the present case." It
was in this state of judicial opinion that Art. 31(2) was amended by the
Constitution (Fourth Amendment) Act as mentioned above and the requirement of
public purpose was expressly made a condition for compulsory acquisition by the
State. The basis for the argument that the question whether there was a public
purpose or not is open to judicial review in spite of Art. 31A has therefore
It is worth noticing in this connection that
in Sir Kameshwar Singh's case(1) the argument that quite apart from anything in
Art. 31(2) as it then stood no law of acquisition could be made except for a
public purpose was sought to be reinforced by the words in Item 36 of the State
List and Item 42 of the Concurrent List. These items read as follows:"36.
Acquisition or requisitioning of property, except for the purposes of the
Union, subject to the provisions of entry 42 of List Ill." "42.
Principles on which compensation for property acquired or requisitioned for the
purposes of the Union or of a State or for any other public purpose is to be
determined, and the form and the manner in which such compensation is to be
given." The argument on the basis of these entries was that the State
legislatures had no power to make a, law for acquisition of property without
fulfilling' the condition of public purpose. The Constitution (.Seventh
Amendment) Act which came into force on the 1st (1)  S.C.R, 889 50 390
day of November, 1956, deleted Entry 36 of the State List and substituted for
the former phraseology of Item 42 of the Concurrent List the words
"acquisition and requisition of property". It is quite clear that
after its amendment the legislative list permits the State legislature to enact
a law of acquisition even without a public purpose; and that the only obstacle
to such a law being enacted without a public purpose is the provisions of Art.
31(2). That obstacle also disappears if the law in question is one within Art.
It was next contended that the acquisition of
the right to hold the Mela, for which the amending Act provides is not
acquisition, in any case, of "rights" "in any estate"
within the meaning of Art. 31A as defined in cl. 2(b) of the same Article. It
was argued that this definition includes only rights of persons who are
intermediaries and unless the raiyat whose rights are being acquired is an
intermediary, that is, a person between the State and the tiller of the soil,
his rights are not rights within the definition of "rights in relation to
an estate"; and consequently, a law providing for acquisition of the
rights of such a raiyat is not a law within the saving provisions of Art. 31A.
It is pointed out that on the date the Amending Act was passed the
ex-intermediaries had ceased to exist as intermediaries and had become
occupancy raiyats under s. 6 of the parent Act.
What were being acquired therefore, it is
argued, were not rights of intermediaries but rights of raiyats who had ceased
to be intermediaries. It has to be noticed that the impugned provisions
amending s. 4 and s. 6 and s. 7(b) have been given retrospective effect so that
the parent Act of 1950 has to be read as containing on the very date of its
enactment provisions in these sections not as originally enacted but as they
stood after the amendment of 1959. In deciding whether rights of raiyats were
being acquired or not we have to forget what happened in consequence of the
unmended s. 6. Projecting ourselves to the date September 25, 1950, when the
President's assent to the Bihar Land Reforms Act, 1950, was published in the
391 Gazette and reading the Act as containing s. 4 and s. 6 as amended and also
s. 7(b) it cannot but be held that what were being acquired by means of these
provisions of the amending legislation giving retrospective effect were certain
rights of the intermediaries. These intermediaries had not on September 25,
1950, ceased to be intermediaries and the fact that under the unmended
provisions of section 6 they later on became occupancy raiyats should not be
allowed to confuse the fact that the acquisition of certain properties by the
amending legislation being itself with effect from September 25, 1950, what was
being provided for was acquisition of intermediaries' rights.
Even if it be assumed that what the amending
legislation provided for was the acquisition of raiyats' rights, there is no
justification for holding that these rights were not "rights in any
estate" within the definition of el. 2 of Art. 31A. Clause 2(b) is in
these words:"the expression 'rights' in relation to an estate, shall
include any rights vesting in a proprietor, sub-proprietor, under-proprietor,
tenure-holder, ralyat, under-raiyat or other intermediary and any rights or
privileges in respect of land revenue." The contention on behalf of the
ex-intermediaries is that the rights of raiyats who are not intermediaries, in
the sense of being middlemen between the State and the tiller of the soil, are
not within this definition. This contention does not however stand a moment's
scrutiny, for the simple reason, that it is well known that ordinarily at
least, a raiyat or an under-raiyat is not a person, who can be called an
intermediary. It is reasonable to think that the word "raiyat"was used
in its ordinary well-accepted sense, of the person "who holds the land
under the proprietor or a tenure-holder "for the purpose of
cultivation" and the word "under-raiyat" used in the equally
well-accepted and ordinary sense of "a person who holds land under a raiyat
for the purpose of cultivation." It is necessary to remember in this 392
connection that Art. 31A as first enacted by the Constitution (First Amendment)
Act did not contain these words "raivat, under-raiyat"; and that
after the First Amendment the definition ran thus:"the expression rights',
in relation to an estate shall include any rights vesting in a proprietor,
sub-proprietor, under-proprietor,, tenure-holder or other intermediary and any
rights or privileges in respect of land revenue." It was the Fourth
Amendment which in the year 1956 inserted the words "raiyat, under-raiyat
"immediately after the words "tenure-holder". At that time laws
bad already been passed in most of the States for the acquisition of the rights
of intermediaries in the estates; rights of raiyats or underraiyats who might
answer the description "intermediary" were also within the definition
because of the use of the word "or other intermediary". The only
reason for specifically including the rights of "raiyats" and
"under-raiyats" in the definition could therefore be to extend the
protection of Art. 31A to laws providing for acquisition by the State
Governments of rights of these "raiyats" or
In the circumstances and in the particular
setting in which the words "raiyat" or "under-raiyat" were
introduced into the definition, it must be held that the words "or other
intermediary" occurring at the end, do not qualify or colour the meaning
to be attached to the tenures newly added.
Another contention raised in support of the
argument that the impugned law is not for acquisition of a right in an estate
is that the right to hold a Mela is not a right in the lands at all. This
contention is wholly unsound.
Holding a hat, or bazar or mela is only a
mode of user by the owner of his land. Just as he can enjoy the land belonging
to him in other ways, he can use it for the purpose of having a concourse of
people-buyers and sellers and others for a hat, or bazar or mela-subject, as in
the case of other user to the requirement that no nuisance is created and the
legal right of others are not infringed.
Consequently, the right to hold a Mela has
always been 393 considered in this country to be an interest in land, an
interest which the owner of the land can transfer to another along with the
land or without the land. There can be no doubt therefore that the right of the
proprietor of an estate to hold a Mela on his own land is a right in the
"estate, being appurtenant to his ownership of the land; so also the right
of a tenureholder, who it has to be remembered is the owner of the land subject
only to the payment of rent to the proprietor, to hold a mela on land forming
part of the tenure. It is true that a licence to hold a Mela on another's land
in which no interest is transferred is not an interest in land; but there is no
question here of the acquisition of any licence to hold a Mela at another
person's land. The argument that the impugned law was not a law for acquisition
of a right in the "estate" because the right to hold a mela was not a
right in the land must therefore be rejected.
Lastly, it was contended that long before the
date of the amending Act the "estates" had ceased to exist as a
consequence of the notifications issued under s. 3 of the Parent Act and consequently
whatever was being acquired in 1959 could not be a right in an
"estate". Here also we have to take note of the fact that the
impugned provisions of the Amending Act were made retrospective with effect
from the date of the original enactment so that we have to project ourselves to
September 25, 1950, the date of the original enactment, and consider whether on
that date the law provided for acquisition of a right in an "estate".
Undoubtedly the "estates" did exist
on that date and so the acquisition retrospectively provided for from that date
was acquisition of a right in an estate.
Even if we ignore the fact that the impugned
provisions of the Amending Act were given retrospective effect there is no
warrant for saying that what was being acquired was not a right in an
"estate". "Estate" was defined in the Bihar Tenancy Act to
mean "any land included under one entry in any of the general registers of
revenue-paying lands and revenue-free lands, prepared and maintained under the
law for the time being in force by the Collector of 394 a District". It is
not disputed before us that in spite of the fact that in consequence of
notifications under section 3 of the Act the "estates" had become
vested in the State, these registers continued to be maintained at least up to
the date of the Amending Act and even later. The position therefore is that the
"estates" have become vested in the State but have still not ceased
to be "estates".
We have therefore come to the conclusion that
the impugned provisions of the Amending Act is a law providing for the
acquisition by the State of rights in an "estate" ". within the
meaning of Art. 31A of the Constitution and consequently even if we assume that
they are inconsistent with or take away or abridge any of the rights conferred
by Arts. 14, 19 and 31 they are not void on that ground. The conclusion cannot
therefore be escaped that the ex-intermediaries have not and the State has the
right to hold melas on the Bakasht lands of which they have be. come occupancy
raiyats under the provisions of s. 6.
We therefore allow the appeals by the State
and set aside the order of the High Court for the issue of writs and order that
the applications under Art. 226 made before the High Court be dismissed. We
also dismiss the two petitions under Art. 32 of the Constitution filed in this
Court, and also Civil Appeal No. 574 of 1960.
In the circumstances of the case, we make no
order as to costs.
Appeals by the State allowed.
C. A. No. 574 of 1960 and Petitions under
Art. 32 dismissed.