State of Orissa Vs. Chandra Sekhar
Singh Bhoi [1969] INSC 144 (15 July 1969)
15/07/1969 SHAH, J.C.
SHAH, J.C.
VAIDYIALINGAM, C.A.
CITATION: 1970 AIR 398 1970 SCR (1) 593 1969
SCC (2) 334
CITATOR INFO:
RF 1972 SC 486 (3,8,9) R 1975 SC1193 (18)
ACT:
Constitution of India-Art. 31-A proviso
2-"Law for the time being in force"-Orissa Land Reforms Act 16 of
1960-Ch. IV containing ceiling provisions not brought into force-Chapter IV
amended by Act 15 of 1965 and new ceiling provisions substituted fixing compensation
not at market value-chapter IV of Act 16 of 1960 if "law in force"
within Article 31-A, proviso 2.
HEADNOTE:
The Constitution of India, Art. 31-A, proviso
2, guarantees to a person for compulsory acquisition of his land, the right to
compensation which is not less than the market value when the land is within
the ceiling limit applicable to him under a law for the time being in force.
Section 1(3) of the Orissa Land Reforms Act, 1960, provided that the Act was to
come into force in whole or in part on such dates as the Government may from
time to time by notification appoint. Certain provisions of the Act were
brought into force by notifications. But Chapter IV of the Act dealing with
ceiling of holdings of land was not brought into force.
The Act was amended by Act 13 of 1965. The
amending Act deleted Chapter IV and substituted fresh provisions. Chapter IV as
amended dealt with ceiling and disposal of excess land and provided for
compensation at fifteen times the fair and equitable rent. In the High Court
the respondent landholders urged that when Act 16 of 1960 was enacted it became
law in force and the ceiling limit prescribed thereby became effective even
though Chapter IV was not brought into force by notification under section 1(3)
of the Act that since the Amending Act 15 of 1965 sought to restrict the
ceiling limit and to vest the surplus land in the government there was
compulsory acquisition of land which could be valid only if the law provided
for payment to the land-holder the market value of that part of the surplus
land which was, within the ceiling limit under Act 16 of 1960. The High Court
accepted the contention and struck down Chapter IV of the Act as
unconstitutional and invalid. It was -of the view, relying on this Court's decision
in Thangal Kunju Mudaliar's case, that the expression "law in force' had
to be "construed only in the constitutional sense and not in the sense of
its actual operativeness." In appeal by the State,
HELD : Allowing the appeal 'A law cannot be
said to be in force unless it is brought into operation by legislative
enactment or by the exercise of authority by a delegate empowered to bring it
into operation. The theory of a statute being " operation in a
constitutional sense" has no validity. The decision of this Court in
Thangal Kunju Mudaliar ends no support to the view expresse by the High Court.
There this Court held that s. 1(3) of Travancor Act 14 of II 24 (M.E.) was an
"existing law" on the date of the merge of the States of Travancore
and Cochin and the power to bring into fore the provisions of the Travancore
Act was exercisable by the successor State It was not held that the other
provisions of the Act were in force eve before an appropriate notification was
issued.
[599 B-C; 600 C-D] 594 In the present case
the law relating to the ceiling limit, viz., Chapter IV of Act 16 of 1960 was
never operative by a notification and was repealed by Act 15 of 1965. Therefore
there was no ceiling limit applicable to the land holders under any "law
for the time being in force" which attracted the application of the second
proviso to Art. 3 1 -A. [600 E] Thangal Kunju Mudaliar v. M. Venkitachalam
Potti, [1955] 2 S.C.R. 1196; explained.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 1017, to 1027, 1029 to 1032, 1034 to 1037, 1901 to 1906 and 854 of 1968.
Appeals from the judgment and order dated
January 30, 1967 of the Orissa High Court in O.J.Cs. Nos. 329 of 1965 etc.
C. B. Agarwala end R. N. Sachthey, for the
appellant (in all the appeals) H. R. Gokhale, Santosh Chatterjee -and G. S.
Chatterjee, for the respondents (in all the appeals).
The Judgment of the Court was delivered by
Shah, J. The State of Orissa has appealed to this Court against the judgment of
the State High Court declaring "unconstitutional and invalid" Chapter
IV of the Orissa Land Reforms (Amendment) Act 15 of 1965.
The Orissa Land Reforms Act 16 of 1960
(hereinafter called the principal Act) received the assent of the President on
October 17, 1960. By S. 1(3) of the principal Act it was provided that the Act
shall come into force in whole or in part, on such or date or dates as the
Government may from time to time by notification appoint and different dates
may be appointed for different provisions of the Act. By a notification issued on
September 25, 1968 certain provisions of the principal Act other than those
contained in Chs. III -and IV were brought into force. By a notification dated
December 9,.1965 Ch. III (ss. 24 to 37 dealing with resumption for personal
cultivation of any land held by a tenant and related matters) was brought into
force. But Ch. IV (ss. 38 to 52 dealing with ceiling of holdings of land and
disposal of excess land) was not brought into operation.
The Legislature of the State of Orissa
amended the principal Act by Act 13 of 1965. By Act 13 of 1965 amendments were
made in the principal Acts : the expressions "ceiling area" and
"privileged raiyat" were defined by clauses (5) & 24 of S. 24 and
the expression "classes, of land" was defined in S. 2(5a). The
original Chs. III and IV-of the principal Act were deleted and were substituted
by fresh provisions. Nothing need be said about the amendments made in Ch. III
because in these groups of appeals the validity of these provisions is not in
issue. It may suffice to say that Ch. III (ss. 24 to 36) as amended 595 deals
with the right of the landlord to resume land for personal cultivation, the
extent of that right, and the proceedings for resumption of land. Chapter IV as
amended deals with ceilings and disposal of excess land. By S. 37 it is
provided :
"(1) No person shall hold after the
commencement of this Act lands as landholder or raiyat under personal
cultivation in excess of the ceiling area determined in the manner hereinafter
provided.
By S. 3 8 the Government is authorised to
grant exemption from the operation of the ceiling in respect of certain classes
of land Section 39 deals with the principles for determining the ceiling area.
Sections 40, 41 & 42 deaf with the filing of returns in respect of lands in
excess of the ceiling area on the date of commencement of the Act and the
consequences of failure to submit the return.' Section 43 provides for the
preparation and publication of draft statements showing ceiling and surplus
lands by the Revenue Officer and S. 44 provides for the publication of the
final statement of ceiling and surplus lands after hearing objections, if any,
received and after making enquiries as the Revenue Officer may deem necessary.
Section 45 provides that :
"With effect from the beginning of the
year next following the date of the final statement referred to in sub-section
(3) of section 44 the interests of the person to whom the surplus lands relate
and of all landholders mediately or immediately under whom the surplus lands
were being held shall stand extinguished and the said lands shall vest
absolutely in the Government free from all encumbrances.
Section 46 provides for determination of
compensation.
Section 47 sets out the principles for
determining compensation. It provides that the compensation in respect of the
interest of the land holders mediately or immediately under whom the surplus
lands are being held as a landholder or raiyat shall be fifteen times the fair
and equitable rent. It also provides for payment of in market value of tanks,
wells and of structures of a permanent nature situate in the land, determined
on the basis of fair rent in the manner prescribed therein. Sections 48 and 49
deals with the preparation and publication of draft compensation assessment
roll and the final compensation assessment roll.
By S. 51 provision was made for settlement of
surplus lands vested in the Government under S. 45 with persons as raiyats in
the order of priority mentioned therein and S. 52 imposes a ceiling on future
acquisitions. It is provided thereby:
5 96 "The foregoing provisions of this
Chapter shall, A mutatis mutandis, apply where lands acquired and held under
personal cultivation subsequent to the commencement of this Act by any person
through inheritance, request, gift, family settlement, purchase lease or
otherwise, together with the lands 'in his personalcultivation at the time of
such acquisition exceeds his ceiling limit.
By the amendment made in the Constitution by
the 17th Amendment Act the principal Act is incorporated in the Ninth Schedule
to the Constitution with effect from june 20, 1964.
The Act is therfore not liable to be attacked
on the plea that it is inconsistent with or takes away or abridges any of the
fundamental rights conferred by Part III Constitution. But the power to repeal
or amend the Act incorporated in the Ninth Schedule is not thereby taken away.
the enactment of the of the of the competent Legislature to amending Act passed
after the (Seventeenth Amendment) Act, 1964 does not therefore qualify for the
protection of Art. 31-B. See Ramanlal Gulabchand Shah etc.
v. etc. v. State of Gujarat & Ors.(1) Sri
Ram Ram Narain Medhi v. The State of Bombay(2) This position is not disputed.
Chapter IV in the principal Act by orissa Act
13 of 1965 when brought into force is liable to be challenged the ground that
it is inconsistent with or takes away orabridges any of the fundamental rights
conferred by Part III of the Constitution, It was urged however, and that plea
has found favour with the High Court, that s. 47 incorporated by Act 13 of 1965
which provided for compensation not based on the market value of the land but
at fifteen times the fair and equitable rent is in consistent with Art. 3 1 -A,
proviso 2, and is on that account void. To appreciate the contention the
constitutional provisions relating to protection guaranteed by the Constitution
against compulsory acquisition of property may be noticed. By Ar. 31(2) as
amended by the Constitution (Fourth Amendment) Act, 1955, insofar as it is
material, it is, provided :
"No property shall be compulsory
acquired or requisitioned save for a public purpose and save by authority of a
law which provides for compensation for the property so acquired or
requisitioned and either fixes the amount of the compensation or specifies the
principles on which, and the manner in which the compensation (1)[1969] 1
S.C.R. 42.
(2)[1959] Supp. 1 S.C.R. 489, 597 is to be
determined and given;
Clause (2A) of Art. 31 which in substance
defines the expression "law" providing for compulsory acquisition
enacts that:
"Where a law does not -provide for the
transfer of the ownership or right to possession of any property to the State
or to a corporation owned or controlled by the State, it shall not be deemed to
provide for the compulsory acquisition or requisitioning of property,
notwithstanding that it deprives any person of his property." By Art.
31(2) read with Art. 31(2A) property may be compulsorily acquired only for a
public purpose and by authority of a law which provides for compensation for
the property so acquired and either fixes the amount of the compensation or
specifies the principles on which, and the manner in which, the compensation is
to be determined and given. In order that property may be validly acquired compulsorily
the law must provide for the transfer of ownership or right to possession of
any property to the State or to a corporation owned or controlled by theState.
By virtue of S. 45 of the principal Act
"the interests of person to whom the surplus lands relate and of all landholders
immediately or immediately under whom the surplus lands were being held ...
stand extinguished and the lands. .... vest absolutely in the Government free
from all encumbrances." This is clearly compulsory acquisition of land
within the meaning of Art. 31(2) of the Constitution and the compensation
determined merely at fifteen times the fair and equitable rent may not, prima
facie, be regarded as determination of compensation according to the principles
specified by the Act. But Art. 31A which applies to the statute in question
provides by the first clause:
"Notwithstanding anything contained in
Article 13 no law providing for(a)the acquisition by the State of any estate or
of any rights therein or the extinguishment or modification of any such rights,
or (b) (c) (d) (e) shall be deemed to be void on the ground that it is tent
with, or takes away or abridges any of the ferried by article 14, article 19 or
article 31 598 The principal Act 16 of 1960 and the amending Act 13 of 1965
were both Acts enacted for ensuring agrarian reform, and the lands held by the
petitioners were "estates" within the meaning of Art. 31-A. By s. 45
the rights of the landholders were sought to be extinguished or modified. But
to the operative part of Art. 31-A by S. 2 of the Constitution (Seventeenth
Amendment) Act, 1964, the second proviso was added. The second proviso enacts :
"Provided further that where any law
makes any provision for the acquisition by the State of any estate and where
any land comprised therein is held by a person under his personal cultivation,
it shall not be lawful for the State to acquire any portion of such land as is
within the ceiling limit applicable to him under any law for the time being in
force or any building or structure standing thereon or appurtenant thereto,
unless the law relating to the acquisition of such land, building or
structure,-provides for payment of compensation at a rate which -,hall not be
less than the market value thereof." By the Constitution (Seventeenth
Amendment) Act, 1964, it was clearly enacted that under any law which provides
for the acquisition of any land in an estate under the personal cultivation of
the holder, compensation shall not be less than the market value of the land if
such land be within the ceiling limit applicable to the holder under any law
for the time being in force.
Before the High Court it was urged on behalf
of the landholders that when the principal Act was enacted it became law in
force, and the ceiling limit prescribed thereby became effective, even though
Ch. IV was not extended by a notification under s. 1(3) of the Act, and since
the subsequent legislation seeks to restrict the ceiling limit and to vest the
surplus land in the Government under s. 45 as amended, there is compulsory
acquisition of land which may be laid only if the law provides for payment to
the landholder for extinction of his interest, the market value of that part of
the surplus land which is within the ceiling limit under the principal Act. This
argument found favour with the High Court. In their view the expression
"law in force" must be "construed only in the constitutional
sense and not in the sense of its actual operativeness", and on that
account it must be held that "there was a ceiling limit already provided
by the principal Act as it was 'law in force' within the meaning of that
expression as used in the second proviso to Art. 31 -A". They proceeded
then to hold that s. 47 of the Act as amended provided -for payment of
compensation at a rate which is less than the market value of the land falling
within the ceiling limit as originally fixed under 599 Act 16 of 1960, and the
guarantee of the second proviso to Art. 31-A of the Constitution is on that
account infringed.
We are unable to accept this process of
reasoning. The right to compensation which is not less than the market value
under any law providing for the acquisition by the State of any land in an
estate in the personal cultivation of a person is -guaranteed by the second
Proviso only where the land is within the ceiling limit applicable to him under
any law for the time being in force. A law cannot be said to be in force unless
it is brought into operation by legislative enactment, or by the exercise of
authority by a delegate empowered to bring it into operation. The theory of a
statue being "in operation in a constitutional sense" though it is
not in fact in operation has, in our judgment, no validity.
Again Ch. IV of the principal Act was
repealed by the Amending Act 15 of 1965. Article 31-A proviso 2 guarantees to a
person, for compulsory acquisition of his land, the right to comPensation which
is not less than the market value, when the land is within the ceiling limit
applicable to him under a law for the time being in force. On the plain words
of the proviso the law prescribing the ceiling limit must be in force at the
date of acquisition. In the present case the law relating to the ceiling limit
viz.Ch. IV of the principal Act was never made operative by a notification, and
was repealed by Act 15 of 1965. The ceiling limit under S. 47 of the principal
Act was on that account inapplicable to the landholders who challenged the
validity of S. 45 of the amending Act.
The decision of this Court A. Thangal Kunju
Mudaliar v. M. Venkatachalam Potti and Anr. (1) on which the High Court relied
lends no support to the views expressed by them. In that case the Travancore
State Legislature enacted Act 14 of 1124 M.E to provide for investigating cases
of evasion of tax. The Act was to come into force by s. 1(3) on the date
appointed by the State Government by notification. The States of Travancore and
Cochin merged on July 1, 1949 and formed the United State of Travancore -and
Cochin. By Ordinance I of 1124 M.E. all existing laws of the Travancore State
were to continue in force in the United State. By a notification the Government
of the United State brought the Travancore Act 14 of 1124 (M.E.) into force,
and referred cases of certain tax-payers for investigation to the Commission
appointed in that behalf. The tax-payers challenged the authority of the
Commission to investigate the cases. They contended that the Travancore Act 14
of 1124 (M.E.) not being a law in force when the United State was formed,
the-notification bringing the Act into force was ineffective. The Court
rejected that plea. Section 1(3) of Travancore Act 14 of 1123 (M.E.) was (1)
[1955] 2 S.C.R. 1196.
L14 Sup. C.I./69-9 600 existing law on July
1, 1949, and continued to remain in force by virtue of Ordinance 1 of 1124 (M.E.).
The notification issued in exercise of the power under s. 1(3) of the
Travancore Act 14 of 1124 (M.E.); the reference of the cases of the
petitioners, the appointment of the authorised officials and the proceedings
under the Act could not be questioned because s. 1(3) was existing law on July
1, 1949.
In A. Thangal Kunju Mudaliar case(1) the
contention that Travancore Act 14 of 1124 (M.E.) was not law in force until a
notification was issued bringing into operation the provisions of the Act,
authorising the appointment of a Commission, and referring the cases of
tax-payers to the Commission, was rejected. The Court held that s. 1(3) was in
operation on July 1, 1949 and the power to bring into force the provisions of
the Travancore Act was exercisable by the successor State. It was not held that
the other provisions of the Act were in force even before an appropriate
notification was issued. In the case in hand S. 1(3) of -the principal Act was
in force, but Ch. IV of the Act was not brought into force. The argument that
provisions of the Act which by a notification could have been but were not
brought into force, must still be deemed to be law in force, derives no support
from the case relied upon.
Section 1(3) of Act 16 of 1960 is undoubtedly
a law in force, but until the power is exercised by the State Government to
issue an appropriate notification, the provisions of Ch. IV could not be deemed
to be law in force, and since no notification was issued before Ch. IV of the
principal Act was repealed, there was no ceiling limit applicable to the
landholders under any law for the time being in force which attracted the
application of the second proviso to Art. 31-A.
The appeals must, therefore, be allowed, and
the order passed by, the High Court declaring Ch. IV of Act 13 of 1965 amending
Act 16 of 1960 ultra vires, be set aside. The State will get its costs in this
Court from the respondents.
There will be one hearing fee. There will be
no order as to costs in the High Court.
R.K.P.S.
(1) [1955] 2 S.C.R. 1196.
Appeals allowed.
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