Hota Venkata Surya Sivarama Sastry Vs.
State of Andhra Pradesh [1961] INSC 202 (28 April 1961)
AYYANGAR, N. RAJAGOPALA GAJENDRAGADKAR, P.B.
SARKAR, A.K.
GUPTA, K.C. DAS MUDHOLKAR, J.R.
CITATION: 1967 AIR 71 1962 SCR (2) 535
ACT:
Abolition of Estates-Enactment providing for
State taking over estates by notification-Part of estate outside the operation
of enactment -Legislation extending its operationNotifications in respect of
estate, each part separatelyLegality -,Madras Scheduled Areas Estates
(Abolition and Conversion into Ryotwari) Regulation, 1951 (Regulation 4 of
1951), S. 2-Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948
(Madras 26 of 1948), ss. 1(4), 3, 25.
HEADNOTE:
The areas in question which were parts of two
estates belonging to the appellants, called Gangole A and Gangole C, were
situated in what was known as the Godavari Agency tract which was governed by
the Scheduled Districts Act, 1874. By s. 92 of the Government of India Act, 1935,
no Act of the Provincial Legislature was applicable to certain areas in which
the Godavari Agency was included, unless the Governor by public 536
notification so directed. The Madras Estates (Abolition and Conversion into
Ryotwari) Act, 1948, was enacted in 1948, and on August 15, 1950, the
Government of Madras issued a notification under s. 1(4) Of the Act by which,
among other estates, Gangole A and Gangole C in their entirety were purported
to be taken over, specifying September 7, 195o, as the date on which the
vesting was to take place. But as no action as contemplated by s. 92 of the
Government of India Act, 1935, had been taken to render the Madras Act of 1948
applicable to the Godavari Agency tract, only parts of the Gangole estates were
within the operation of that Act, while there were portions of the estates
which were outside its purview and operation. When this legal situation was
noticed another notification was issued on September 5, 1950, by which the areas in question were excluded from the scope of the notification dated August 15, 1950. In exercise of the power under para 5(2) Of the Fifth Schedule to the
Constitution, Madras Regulation IV of 1951 was passed on September 8, 1951 by
which, inter alia, the Act Of 1948 was made applicable to the areas in which
the two Gangole estates were situate with retrospective effect from April 19,
1949. On January 14, 1953, the Government of Madras issued a notification
vesting those portions of the Gangole estates to which the Act Of 1948 was
extended. The appellants challenged the legality of the notification on the
ground that the various provisions of the Madras Estates (Abolition and
Conversion into Ryotwari) Act, 1948, showed that the Act contemplated the
taking over of estates as a unit and not in parts, while what the Government
had done in the present case was to deal with the two estates of Gangole A and
Gangole C as if each one of them were really two estates, one that which lay in
the Godavari Agency tract and the other outside that area, and had issued
notifications in respect of these units separately.
Held, that the first notification dated August 15, 1950, as modified by that dated September 5, 1950, was valid and effective in
law to vest the portion of the estate to which it related in the State
Government.
Held further, that the notification dated January 14, 1953, was equally valid. The action taken by the Government in issuing the
said notification was in conformity with the scheme of the Act of 1948 that the
entirety of the estate should be taken over.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 646 and 647 of 1960.
Appeals by special leave from the judgments
and orders dated January 28, 1958, of the Andhra Pradesh High Court in Writ
Appeals Nos. 149 and 150 of 1957.
537 A. V. Viswanatha Sastri and T.
Satyanarayana, for the appellants.
A. Ranganatham Chetty, S. V. P. Venkatappayya
Sastri and T. M. Sen, for the respondent.
1961. April 28. The Judgment of the Court was
A delivered by AYYANGAR, J.-These two appeals are by special leave of this
Court and arise out of orders of the High Court of Andhra Pradesh dismissing
two writ petitions filed before it by the respective appellants in the two
appeals.
On January 14, 1953, the Government of Madras
issued a notification reading, to quote only the material words, "in
exercise of the powers conferred by s. 1(4) of the Madras Estates (Abolition
and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI of 1948), read with s.
2 of the Madras Scheduled Areas Estates (Abolition and Conversion into
Ryotwari) Regulation, 1951:
"The Governor of Madras hereby appoints
the 4th of February 1953, as the date on which the provisions of the said Act
shall come into force in the Estates in the Scheduled Areas of the West
Godavari District which are specified in the schedule below:-" and the
schedule set out inter alia:
"1. Agency Area of Gangole 'A' Estate,
consisting of 2
3. Agency Area of Gangole'C' Estate,
consisting of.... " It is the legality of this notification that is
impugned by the two appellants who are the proprietors respectively of Gangole
'A' and Gangole 'C' estates. The two writ petitions by the appellants which
were numbered respectively 28 and 29 of 1953 were dismissed by the learned
Single-Judge of the Andhra High Court and appeals under the Letters Patent
filed against this common judgment were also dismissed by the learned Judges of
that Court. An application for the grant of a certificate was also dismissed
but this 538 Court having granted special leave to the appellants, the' matter
is now before us.
The Madras Estates (Abolition and Conversion
into Ryotwari) Act, 1948, to which we shall refer as the Abolition Act, was a
piece of legislation of the State enacted to effect reform in land tenures and
landholding by the elimination of intermediaries. In line with similar
legislation in the rest of the country, the interests of intermediaries-of
three categories-the estates of Zamindars, of undertenure holders and of
Inamdars were enabled to be vested in Government on the publication of a
notification to that effect, compensation being provided for such taking over.
The entire legal difficulties in the case of
the Gangole 'A' and IC' estates which were admittedly Zamindaris arise out of
the fact that a small portion of each of them is situated in what is known as
the Godavari Agency tract. This Agency area was originally included as part of
the Scheduled District of the Madras Presidency under the Scheduled Districts
Act XIV of 1874.
When the Godavari Agency was governed by the
Scheduled Districts Act, 1874, the Madras Legislature enacted the Madras
Estates Land Act (Act 1 of 1908), which was in force from July 1, 1908. This
enactment regulated the rights of, inter alia, the proprietors of zamindari
estates and the ryots and tenants who cultivated the lands included in the
estates. Though, some argument was raised in the High Court, disputing the
operation of the Estates Land Act to the Godavari Agency tracts, it has not
been repeated before us. That Act on its terms applied to the entire Presidency
of Madras and in view of a catena of decisions of the Madras High Court
starting from the judgment of Muthuswami Iyer, J.
in Chakrapani v. Varahalamma (1), on the
construction of s. 4 of the Scheduled Districts Act XIV of 1874, the contention
was hardly tenable and was therefore properly abandoned.
The position therefore was that the entirety
of the lands and villages forming Gangole 'A' and IC' were governed by the
Madras Estates Land Act, 1908, (1) (1894) I.L.R. 18 Mad. 227.
539 and were "estates" within the
meaning of that enactment. In this situation the Government of India Act, 1935,
came into force on April 1, 1937. Under its provisions the Godavari Agency was
included in the territory classified as "partially excluded areas"
under s. 91 of the Act. The laws applicable to the "partially excluded
areas" and their administration was governed by s. 92 which enacted:
"92(1) The executive authority of a
Province extends to excluded and partially excluded areas therein, but,
notwithstanding anything in this Act, no Act of the Federal Legislature or of
the Provincial Legislature, shall apply to an excluded area or a partially
excluded area, unless the Governor by public notification so directs; and the
Governor in giving such direction with respect to any Act may direct that the
Act shall in its application to the area, or to any specified part thereof,
have effect subject to such exceptions or modifications as he thinks fit.
(2) The Governor may make regulations for the
peace and good government of any area in a Province which is for the time being
an excluded area, or a partially excluded area, and any regulations so made may
repeal or amend any Act of the Federal Legislature or of the Provincial
Legislature, or any existing Indian law, which is for the time being applicable
to the area in question.
Regulations made under this sub-section shall
be submitted forthwith to the Governor-General and until assented to by him in
his discretion shall have no effect, and the provisions of this Part of this
Act with respect to the power of His Majesty to disallow Acts shall apply in
relation to any such regulations assented to by the Governor-General as they
apply in relation to Acts of a Provincial Legislature assented to by him.
(3) The Governor shall, as respects any area
in a Province which is for the time being an excluded area, exercise his
functions in his discretion." We shall be pointing out a little later, the
interconnection between the Estates Land Act, 1908 and 540 the Abolition Act,
but for the present narrative it is sufficient to state that when the Abolition
Act was enacted in 1948, it could not of its own force, apply to the 'partially
excluded areas' and no action as contemplated by s. 92 of the Government of
India Act, 1935, was taken to render that Act applicable to that area. The
result was that only a part of Gangole 'A' and 'C' were within the operation of
the Abolition Act, while there were portions of each of the estates which were
outside its purview and operation.
This legal situation was however not noticed
and under the wrong impression that the Abolition Act was in operation in the
Godavari Agency also, the Government of Madras issued on August 15, 1950, a
notification under s. 1(4) of the Abolition Act by which, among other estates,
the entirety of Gangole estate 'A' and Gangole estate 'C' were purported to be
taken over, and specifying September 7, 1950, as the date on which the vesting
was to take place. Before the latter date, however, the error was noticed and
in consequence another notification was issued on the 5th of September by which
the villages and hamlets lying in the "partially excluded areas" of
Gangole estate 'A' and Gangole estate IC' were excluded from the scope of the
notification dated August 15,1950. Thereafter the question of the extension of
the Abolition Act to the "partially excluded areas" was taken on
hand. By that date, it would be seen, the Constitution had come into force and
the law applicable to areas like the Godavari Agency was provided for by Art.
244 read with the Sch. V to the Constitution. Art. 244(1) enacted:
"The provisions of the Fifth Schedule
shall apply to the administration and control of the Scheduled Areas and
Scheduled Tribes in any State other than the State of Assam." As regards
the law applicable to the Scheduled Areas, the relevant provision is that
contained in paragraph 5 of that Schedule of which the material portions are:
"5. Law applicable to Scheduled Areas(1)
Notwithstanding anything in this Constitution, the Governor may by public
notification 541 direct that any particular Act of Parliament or of the
Legislature of the State shall riot apply to a Scheduled Area or any part
thereof in the State or shall apply to a Scheduled Area or any part thereof in
the State subject to such exceptions and modifications as he may specify in the
notification and any direction given under this sub-paragraph may be given so
as to have retrospective effect.
(2) The Governor may make regulations for the
peace and good government of any area in a State which is for the time being a
Scheduled Area.
(3) In making any such regulation as is
referred to in subparagraph (2) of this paragraph, the Governor may repeal or
amend any Act of Parliament or of the Legislature of the State or any existing
law which is for the time being applicable to the area in question." In
exercise of the power under paragraph 5(2) of the Fifth Schedule, Madras
Regulation IV of 1951 was passed on September 8, 1951. The territorial extent
of its operation extended to certain areas specified in the Schedule, which
included the areas in the Godavari district in which the two Gangole estates
were situate and by its operative provisions the Abolition Act together with
the amendments effected to it, were made applicable to these areas with
retrospective effect from April 19, 1949. The Abolition Act having thus been
extended to that part of the Gangole 'A' and Gangole 'C' estates which lay
within "the Scheduled area" the Government of Madras issued the
impugned notification vesting those portions of the estate to which the Act was
extended by Regulation IV of 1951. As stated earlier, it is the validity of
this last notification and the vesting effected thereunder of those portions of
Gangole 'A' and Gangole 'C' which lay within the Scheduled area that is alone
challenged in the appeals before us.
The notification was impugned on several
grounds, all of which were rejected by the High Court. Several 69 542 of them
have been put forward before us, though not all of them with equal emphasis.
Before however adverting to them it might be convenient to set out the relevant
statutory provisions which bear upon the points urged. The long title of the
Abolition Act states:
"Whereas it is expedient to provide for
the repeal of the Permanent Settlement, the acquisition of the rights of
landholders not permanently settled and certain other estates in the Province
of Madras "......... It is hereby enacted as follows:" Section 1(3)
defining the extent of its application runs:
"It applies to all estates as defined in
section 3, clause (2), of the Madras Estates Land Act, 1908, except inam
villages which became estates by virtue of the Madras Estates Land (Third
Amendment) Act, 1936." Section 2 which is the definition section provides
by sub-s. (1):
"(1) All expressions defined in the
Estates Land Act shall have the same respective meanings as in that Act with
the modifications, if any, made by this Act." and sub-s. (3) provides:
"(3) 'estate' means a zamindari or an
undertenure or an inam estate." and sub-s. (4) of this section defines
'Estates Land Act' to mean "the Madras Estates Land Act, 1908."
Having regard to these provisions it is necessary to refer to the terms of the
Estates Land Act to which one is directed by s. 1(2) of the Abolition Act.
Section 3 (2) of the Estates Land Act defines "an estate" as meaning:
"3 (2)(a) any permanently-settled estate
or temporarily-settled zamindari, (b) any portion of such permanently-settled
estate or temporarily-settled zamindari which is separately registered in the
office of the Collector;
(c) (d) (e) 543 We shall now proceed to deal
with the several points raised, though except one all the others do not merit
any serious consideration and have been properly rejected by the High Court.
The first point urged was that the Polavaram zamindari the parent estate from
which the Gangole estate was, by successive sub-divisions, separated-was not
"a permanently settled estate" because the' Madras PermanentSettlement
Regulation XXV of 1802 was excluded from its application to Scheduled districts
by the Laws Local Extent Act, 1874. In our opinion, the High Court has rightly
rejected this contention, because even if the Madras Permanent-Settlement
Regulation did not apply, there could be no dispute that the Polavaram
zamindari was "a permanently settled estate", because its peishcush
was fixed and from the kabuliyat which was executed by the proprietor it is
clear that it conforms to the pattern of the sanads and kabuliyats issued under
the Madras Permanent-Settlement Regulation.
Though before the High Court it was urged
that on the issue of the notification on August 15, 1950, under s. 1(4) of the
Abolition Act the power of the State Government was exhausted and that they
were thereafter incompetent to issue any further notification under the same
Act, this contention which entirely lacks substance was not seriously urged.
It was next contended that Regulation IV of
1951 was invalid as having out stepped the limits of the legislation permitted
by paragraphs 5(1) and (2) of the Fifth Schedule to the Constitution. It was
said that if the Governor desired to enact a law with retrospective effect it
must be a law fashioned by himself, but that if he applied to the Scheduled
areas a law already in force in the State, he could not do so with
retrospective effect. Reduced to simple terms, the contention merely amounts to
this that the Governor should have repeated in this Regulation the terms of the
Abolition Act but that if he referred merely to the title of the Act he could
not give retrospective effect to its provisions over the area to which it was
being applied.
It is obvious that this contention was
correctly negatived by the High Court.
544 We shall now proceed to deal with the
only point put forward by Mr. Viswanatha Sastri which, we have said, merits
serious consideration, though it must be said that it was not presented in the
same form before the learned Judges of the High Court of Andhra Pradesh. The,
argument was as follows:
The Madras Estates Land Act of 1908,
admittedly applied to the entire estate of Gangole-including that portion of
the estate which was in the Scheduled area which, in the phraseology employed
by the Government of India Act, was "a partially excluded area."
Gangole 'A', Gangole 'B'and Gangole'C' had been subdivided and had been
separately registered. Each one of them was therefore a unit-each one was
itself "an estate" within s. 3(2)(b) of the Estates Land Act, 1908,
being "a portion of a permanently-settled estate ................. which
is separately registered in the office of the Collector." The Abolition
Act contemplates the taking over of "estates" as a unit and not in
parts.
The entire scheme of the Abolition Act is
based upon this principle which would be upset if it were held that the
Government in issuing notifications under s. 1(4) of the Abolition Act could
take over portions merely of such units.
When a notification is issued under s. 1(4)
its legal consequences are set out in s. 3 which reads:
"With effect on and from the notified
date and save as otherwise expressly provided in this Act (the saving does not
cover anything material for the present purpose)(a) (b) the entire estate
(including all communal lands; porambokes; other non-ryoti lands; ) shall stand
transferred to the Government and vest in them, free of all
encumbrances......." The provisions of the Act determining the amount of
compensation are related to the sum payable in respect of the entirety of the
estate, for ss. 24 and 25 enact:
"24. The compensation payable in respect
of an estate shall be determined in accordance with the following
provisions." 545 "25. The compensation shall be determined for the
estate as a whole, and not separately for each of the interests therein."
The mode of computation of the compensation amount for which provision is made
in ss. 27 to 30 all proceed on the basis that it is the entire estate that is
taken over and not a portion merely of the estate. All these, taken together,
would point to the scheme of the Act contemplating the entire estate being
taken over. On that scheme he urged that it would not be possible to work out
the compensation payable for separate portions of an estate, for instance for
one village out of the several which might be comprised in an estate, The
claims by the proprietor against the Government for compensation, as well as
the determination of disputes inter se between claimants to the compensation
amount, he pointed out, all proceed on the basis that the entire estate as a
unit was taken over by notification under s. 1(4).
On these premises Mr. Viswanatha Sastri
submitted that what the Government had done in the present case was to deal
with the two estates of Gangole 'A' and Gangole 'C' each of which was a unit,
as if each one of them were really two estatesone that which lay in the Agency
tract, and the other outside that area-and had issued notifications in respect
of these units piece-meat which was not contemplated and therefore not
permitted under the Abolition Act. He further pointed out that if the original
notification dated August 15, 1950, stood without the
"denotification" effected by the notification dated September 5,
1950, there might be a valid vesting by reason of the retrospective operation
of Regulation IV of 1951. Similarly if the impugned notification of 1953, had.
included not merely that portion of the estate of Gangole 'A' and Gangole 'C'
which were within the Scheduled areas but the entirety of the two estates, that
notification would not have been open to challenge. But the point urged was
that it was only by the combined operation of (1) the notification dated August
15, 1956, as modified by that dated September 5, 1950, and (2) the notification
dated January 14, 546 1953, that the entirety of the two "estates"
was taken over and that this rendered the second notification invalid because
it had taken over only a portion of the estate.
Learned Counsel, no doubt, conceded that the
taking over of those portions of Gangole 'A' and Gangole 'C' which were within
the operation of the Abolition Act before its extension to the Scheduled areas
not having been challenged, he would not be entitled to any relief in respect
of the portion of the estate covered by the first notification, but his
argument was that would not preclude him from disputing the validity of the
last notification vesting those portions of the two estates which were within
the Scheduled areas in the State.
We shall now proceed to consider the
tenability of these submissions. We might premise the discussion by observing
that learned Counsel is right in his submission that the Abolition Act does not
contemplate or make provision for the taking over of particular portions only
of estates and that if the-State Government having power to take over the
entirety of an estate chose, however, to exclude certain portions of it from
the operation of a vesting notification and took over only defined portions of
an estate, this could be open to serious challenge on the ground that it was
not contemplated by the scheme of the enactment. But the acceptance of this
principle does not, in our opinion, compel us to answer the question pro.
pounded by the learned Counsel for the appellants in his favour.
To start with, it might be pointed out that
it looks somewhat anomalous that learned Counsel who strongly urges that the
scheme of the Act contemplates the taking over only of the entirety of an
estate and not of a portion thereof, should resist a taking over which, if
effective, would result in the entire estate vesting in the Government and the
compensation being determined according to the rules laid down by the Act,
whereas it is the invalidation of the impugned notification that would result
in a partial or piece-meal taking over, to the disadvantage of the proprietors
to which learned Counsel very properly drew our attention.
547 As already pointed out learned Counsel's
submission was that not merely the notification dated -January 14, 1953, but
also the earlier one dated August 15, 1950 (as modified by the one dated
September 5, 1950) was invalid as providing for vesting of parts only of an
"estate" and not of it as a unit. It would also follow that if the
first notification dated August 15, 1950, was valid, the impugned notification
which by its operation effected the vesting of the entirety of the estate in
the State could not be open to challenge as violating the principle invoked by
learned Counsel.
We are necessarily therefore driven to
consider the validity of the first notification dated August 15, 1950, in
dealing with the validity of the impugned notification of January 14, 1953. In
considering this matter it is necessary to recall some of the provisions of the
Abolition Act. Section 2(3) defines "an estate" as meaning, inter
alia, a "zamindari estate". No doubt, as stated already, where the
Abolition Act operates over the whole of "a zamindari estate", it
does not contemplate the Government taking over a portion only of such
"estate". But in saying this it should not be assumed that if in
respect of a single estate two notifications were issued, say on the same date
which together vested the entirety of the "estate" in the State under
s. 3, either notification or both together would be invalid or ineffective. The
reason for this must obviously be that the intention of the Government was to
take over the entire estate-though it was being given effect to by the issue of
two notifications. That would not obviously be the same thing as the Government
having the liberty to pick and choose certain of the villages or certain portions
of an estate leaving out others. If the Abolition Act as enacted does not
'extend to the entirety of an "estate" as defined in the Estates Land
Act but only to a portion thereof, the question would be whether that portion
of "the estate" which is within the operation of the Act is "an
estate" within the meaning of the Act or not. On this matter there are two
views possible: (1) that having regard to the Abolition Act referring to and as
it were incorporating the provisions of the 548 Madras Estates Land Act, the
"estates" to which the Abolition Act could apply are only those which
being "Estates" within the Estates Land Act, are also wholly within
the operation of the Abolition Act. In other words, even if a few acres of an "estate"
as defined in the Estates Land Act were outside the operation of the Abolition
Act, it would not be an "estate" which could be taken over. (2) The
other view attributing a crucial value to the policy and purpose underlying the
legislation, viz., a reform of land tenures and landholding by the elimination
of intermediaries to treat any land held on the tenures specified and within
the territorial operation of the Act as falling within the category of
"estates" liable to be taken over and vested in Government. We consider
that the latter view is to be preferred as being in accord with the intention
of the law and as sub serving its purposes. In this connection it cannot be
overlooked that the entire argument of learned Counsel is built up on the
definitions of an "estate" in s. 2 of the Abolition Act (read with s.
1(3) of that Act), and that the definitions contained there could be applied on
the terms of the opening words of that section only "unless there is
anything repugnant in the subject or context." The position could possibly
be better explained in these terms:
Assume that Regulation IV of 1951 was not
enacted. Could the State Government take over that portion of the
"estate" which was within the operation of the Abolition Act or does
the definition of "an estate" and the reference s. 1(3) to s. 3(2) of
the Madras Estates Land Act of 1908 preclude the State from taking over that
portion because the Act does not extend to the entirety of the
"estate"? It appears to us that this question is capable of being answered
only in one way, viz., that the definition of "an estate" in the
Abolition Act must be limited to that portion of an "estate" which is
within the operation of the Act. Any other construction would mean that if that
Act did not apply to a few square yards in an estate, it ceases to be an
"estate" governed by the Act, which, in our opinion, would be plainly
contrary to the intention of the enactment as 547 As already pointed out
learned Counsel's submission was that not merely the notification dated -January
14, 1953, but also the earlier one dated August 15, 1950 (as modified by the
one dated September 5, 1950) was invalid as providing for vesting of parts only
of an "estate" and not of it as a unit. It would also follow that if
the first notification dated August 15, 1950, was valid, the impugned
notification which by its operation effected the vesting of the entirety of the
estate in the State could not be open to challenge as violating the principle
invoked by learned Counsel.
We are necessarily therefore driven to
consider the validity of the first notification dated August 15, 1950, in
dealing with the validity of the impugned notification of January 14, 1953. In
considering this matter it is necessary to recall some of the provisions of the
Abolition Act. Section 2(3) defines "an estate" as meaning, inter
alia, a "zamindari estate". No doubt, as stated already, where the
Abolition Act operates over the whole of "a zamindari estate", it
does not contemplate the Government taking over a portion only of such
"estate". But in saying this it should not be assumed that if in
respect of a single estate two notifications were issued, say on the same date
which together vested the entirety of the "estate" in the State under
s. 3, either notification or both together would be invalid or ineffective. The
reason for this must obviously be that the intention of the Government was to
take over the entire estate-though it was being given effect to by the issue of
two notifications. That would not obviously be the same thing as the Government
having the liberty to pick and choose certain of the villages or certain
portions of an estate leaving out others. If the Abolition Act as enacted does
not extend to the entirety of an "estate" as defined in the Estates
Land Act but only to a portion thereof, the question would be whether that
portion of "the estate" which is within the operation of the Act is
"an estate" within the meaning of the Act or not. On this matter
there are two views possible: (1) that having regard to the Abolition Act
referring to and as it were incorporating the provisions of the 548 Madras
Estates Land Act, the "estates" to which the Abolition Act could
apply are only those which being "Estates" within the Estates Land
Act, are also wholly within the operation of the Abolition Act. In other words,
even if a few acres of an "estate" as defined in the Estates Land Act
were outside the operation of the Abolition Act, it would not be an
"estate" which could be taken over. (2) The other view attributing a
crucial value to the policy and purpose underlying the legislation, viz., a
reform of land tenures and landholding by the elimination of intermediaries to
treat any land held on the tenures specified and within the territorial
operation of the Act as falling within the category of "estates"
liable to be taken over and vested in Government. We consider that the latter
view is to be preferred as being in accord with the intention of the law and as
sub serving its purposes. In this connection it cannot be overlooked that the
entire argument of learned Counsel is built up on the definitions of an
"estate" in s. 2 of the Abolition Act (read with s. 1(3) of that
Act), and that the definitions contained there could be applied on the terms of
the opening words of that section only " unless there is anything
repugnant in the subject or context." The position could possibly be
better explained in these terms:
Assume that Regulation IV of 1951 was not
enacted. Could the State Government take over that portion of the
"estate" which was within the operation of the Abolition Act or does
the definition of "an estate" and the reference s. 1(3) to s. 3(2) of
the Madras Estates Land Act of 1908 preclude the State from taking over that
portion because the Act does not extend to the entirety of the
"estate"? It appears to us that this question is capable of being
answered only in one way, viz., that the definition of "an estate" in
the Abolition Act must-be limited to that portion of an "estate"
which is within the operation of the Act. Any other construction would mean
that if that Act did not apply to a few square yards in an estate, it ceases to
be an "estate" governed by the Act, which, in our opinion, would be
plainly contrary to the intention of the enactment as 549 gathered from its preamble
and operative provisions. Let us suppose that instead of the problem created by
a portion of the estate being in a Scheduled area and therefore though within
the State outside the normal legislative power of the State Legislature, a
permanently settled estate had by reason of say the State's Reorganisation,
fell both within the territory of the Madras and the Andhra States, with the
result that the taking over under the Abolition Act could be operative only in
regard to that portion within the State of Madras. Could it then be contended
that the portion of the estate within the State of Madras did not fall within
the definition of an estate and so could not be taken over by notification
under s. 1(4) of the Act. Indeed, the answer of the learned Counsel for the
appellants to such a question was that it could be taken over but for the
reason that in such a case the portions outside the State territory could not
be an " estate" within the Madras Estates Land Act at all and that in
consequence the inter-relation between the unit constituting the estate under
the Estates Land Act and the concept of an "estate" under the
Abolition Act was not disrupted. But this, however, hardly suffices as a
complete answer, for even after a portion of the "estate" becoming situated
in a State other than Madras the State might still be governed by the
"Madras Estates Land Act", though applied as the law of tile new
State. What is relevant in the illustration is that along with the concept of
the unit constituting the "estate" being taken over, there is also
underlying it, another principle, viz., that it is sufficient if the entirety
of the estate over which the State Legislature has competence is taken over. In
such a taking over the difficulty suggested by learned Counsel in working out
the scheme of the Act, would not arise because the portion taken over will
constitute the estate and the compensation for that unit will be worked out on
the basis laid down in s. 24 and those following. The other portions of the
estate which are beyond the territorial operation of the enactment would
continue to remain unaffected, so that the State 70 550 Government could not be
in a position to take them over.
We accordingly, consider that the first
notification dated August 15, 1950, apart from its being binding and not open
to challenge in these proceedings by the appellants, is valid and effective in
law to vest the portion to which it related in the State Government. We then
have Regulation IV of 1951 which brought the other portion of the estate to
which the Abolition Act did not originally extend within the operation of that
enactment. If, after this change in the law, the Government did not take over
the rest of the estate, it would be open to the objection that the State
Government had artificially split up the estate into two parts and had taken
over or rather retained in its possession one part, and that notwithstanding
that the Act posited the unit constituting an estate being taken over, had
departed from that principle. The impugned notification therefore far from
being invalid, was necessary to be issued in order to satisfy the very
principle which learned Counsel for the appellants submits-as the one
underlying the scheme of the Abolition Act.
We therefore hold that the challenge to the
validity of the impugned notification dated January 14, 1953, should be repelled. We have thus reached the same conclusion as the learned Judges of the
High Court, though by a different line of reasoning.
The appeals fail and are dismissed with cost--one
set.
Appeals dismissed.
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