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Shalibai Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtMumbai High Court
Decided On
Case NumberWrit Petn No. 2023 of 1978
Judge
Reported inAIR1984Bom325
ActsMaharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 45(2); Maharashtra Agricultral Lands (Ceiling on Holdings) (Amendment) Act, 1976 - Sections 2; Constitution of India - Article 31, 31(2) and 31(3)
AppellantShalibai
RespondentState of Maharashtra
Appellant AdvocateC.G. Madholkar and;S.K. Mishra, Advs.
Respondent AdvocateS.P. Patey, Asst. Govt. Pleader
Excerpt:
.....subordinate authorities- the effect of deletion was that even if possession was taken over by the state, the power of revision under section 45(2) could be exercised, by the state government or its delegate- the amending act, which removes the fetter in the exercise of power under the substantive part of section 45(2) of the ceiling act, removes a procedural restriction upon the exercise of that power and could not therefore, be said to be a law relating to acquisition as such requiring the assent of the president under article 31(3) of the constitution- in this view of the matter it could not be said that the amending act is invalid and unenforceable in the absence of the assent of the president. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying..........except the supreme court, with respect to any of the matters in this list.list iii concurrent listacquisition and requisitioning of property.jurisdiction and power of all courts except the supreme court with respect to any of the matters in this list.list i union listjurisdiction and powers of all courts, except the supreme court , with respect to any of the matters in this list, admiralty jurisdiction.'it is clear from a perusal of the above entries that 'jurisdiction and powers of courts with respect to any of the matters in this list, is a separate item included in each of the three lists in the seventh ?schedule. the existence of separate legislative entries regarding jurisdiction and powers of the courts, itself shows that the subject matter of the law relating to procedure,.....
Judgment:
ORDER

1. A short but subtle point involved in this writ petitions is about the valldity of the Maharashtra Agricultural Lands (Ceiling on Holdings) (Amending) Act, 1976, Maharashtra Act No. 26 of 1976 (for short the Amending Act'). Briefly, the facts are that the surplus Land Determination Tribunal (for short s.L.D. T) by its order dated 23-3-1976 passed under the Maharashtra Agricultural Land (Ceiling on Holdings) Act, 1961 (for short 'the ceiling Act'), held that the total holding of the petitioners is 84.61 acres and since the petitioner is entitled to hold 54 acres of land, the S.L.D.T. declared 30.61 acres of land as surplus belonging to the petitioners. The surplus land was surrendered to the State Government , which took possession of the same after the period of appeal was over.

2. The Additional Commissioner, Nagpur division, Nagppur, acting under Section 45(2) of the Ceiling Act, decided to revise the order of the S.L.D.T. in the ceiling case No. 389|60-A(5)|1975-76, village Idala, Tahsil Sakoli, referred to above. This decision was taken by the Additional commissioner by opening Ceiling Revision No. 2|60-A (5)|1977-78 of Idala, under Section 45(2) of the Ceiling Act, and a summary sheet was accordingly drawn by him which is at Annexure B to the petition. A notice was issued by the Additional; Commissioner, Nagpur Division ,Nagpur to the petitioners to appear in the aforesaid revisional proceedings. After the said notice to appear in the proceedings initiated as per the summary sheet, referred to above, was issued, them petitioners has approached this Court by preferring the instant writ petition challenging the initiation of the aforesaid revisional proceedings against her under Section 45(2) of the Ceiling Act, on the ground that the said revisional proceedings are liable to be quashed and set aside and the Additional... the said revisional proceedings against her. The aforesaid relief is claimed by the petitioners on the ground, that the amending act which amends the Ceiling Act is void and unenforceable because it has not received the assent of the President of India for short 'the President')

3. The submission of the learned counted for the petitioners is that the Amending Act enacts a law relating to acquisition and can be protected by the provisions of Article 31-a of the constitution if it is assented to by the President. In the absence of the assent by the President. IN the absence of the assent by the President to the Amending Act, it in rings the provisions of the then Article 31(3), of the Constitution. According to the learned counsel for the petitioners the Amending Act is a law relating to acquisition within the meaning and of Article 31(2) of the Constitution and for its validity and enforceability the assent of the President is necessary under Art. 31(3) of the constitution.

4. In order to appreciate the contention raised by the petitioners in this writ petition, it is useful to refer to the legislative history of the Ceiling Act having bearing on the question raised in this petition. The original Ceiling Act, i. e. the Maharashtra Act No. 27 of 1961, containing the revisional power in Section 45 thereof is passed on 16-6-1961 and it is not in dispute that the said Act has received the Assent of the President sub-section (2) and (3) of Section 45 were substituted for the original sub-section (2) of Section 45 of the Maharashtra Act No 32 of 1965 vide Section 4, which was assented to by the President. Section 45 (2) was, thereafter, amended by Section 30 of the Maharashtra Act Mno 21 of 1975, by which the words 'or under Section 27' were deleted. This Maharashtra Act No. 21 of 1975 has received the assent of the President . The next amendment to Section 45 is by Section 17 of the Maharashtra Act No. 2 of 1976, but it is to sub-section (3) of Section 45. The said amending act is also assented to by the President. It is thereafter that the impugned Maharashtra Act 26 of 1976, is enacted by the State Legislature deleting from the proviso to sub-section (2) of Section 45 the expression the possession of such land has not been taken under sub-section 21. It is not in disposed by the State Legislature with the assent of the Governor on 16-7-1977. This Amending Act has been brought into force from 17-71976 by the notification of the State Government as required by s. 1 (2) of the said Act.

5. Turing now to the contention raised on behalf of the petitioner, it has to be seen that if the Amending Act is invalid to had unenforceable as contended by the petitioner, the effect would be that one of the conditions which would be required to be satisfied for initiation of proceedings under Sec. 45(2) of the Ceiling Act according to its proviso as it stood prior to the Amending Act would be that the possession of such land has taken under sub-section (4) of s. 21. In other words, if the possession is taken, it would not be competent to the Additional Commissioner to initiate the revisional proceedings under Section 45(2) . The submission is that if the Amending Act is unenforceable, since the possession of the surplus land is already taken over from the petitioner under Section 21(4) of the ceiling Act , the revisional proceedings initiated against the petitioner are incompetent and without jurisdiction.

6. Section 45(2) confers upon the State Government power (which power can be delegated to the commissioner under sub-section (3) of Section 45) to cll for the record of any enquiry or proceedings under Section 17 to 21 (both inclusive) for the purpose of satisfying itself as to the legality (or any part thereof) under those sections and to pass such order thereon and it deems fit. It is thus open to the State Government or the Commissioner to consider the legality of propriety of any enquiry or proceedings initiated for determination oof any of the question arising under Sections 1 to 21 of the Ceiling Act, including the question of the determination of ceiling area as well as the surplus land belonging to the landholders which surplus land vests in the State government after possession is taken by it under Section 21(4) of the Ceiling Act. However, the proviso to sub-section (2) of Secion 45 as it stood prior to the Amending Act, precluded the State Government of the Commissioner from exercising the power under Section 45(2) if any of the three conditions as laid down therein exists. These three conditions are as follows:

( I) an appeal against any declaration under Section 21 of or part thereof has been....

possession of such land which means surplus land has been taken under sub-section (4) of Section 21 ; and

a period of three years has elapsed from such declaration or any part thereof.

The above meaning of the proviso is clear and is not in dispute.

7. A perusal of the proviso thus shows that if all the three conditions in the proviso are not have power to initiate proceedings under s. 45(2) of the Ceiling Act. If, thereof, the possession of the lands is taken by the State as in the instant case, the Additional Commissioner cannot exercise his power of revision under s. 45(2) of the Ceiling Act. By the Amending Act, since this clause relating to the possession of the land having been taken over is deleted, it is open ot the State Government to exercise power under s. 45(2) of the Ceiling Act, even if the possession of the surplus land is taken over by the ceiling Act. It is therefore, necessary to consider whether the Amending Act is valid and enforceable of so that initiation of the revisional proceedings is valid , or whether the Amending Act is invalid and unenforceable so that the initiation of the revisional proceedings is incompetent and without jursidiction.

8. The learned counsel for the petitioner has urged that under S. 45(3) of the Ceiling Act the adjudication by the commissioner can affect the ultimate determination of surplus which vests in the State and, thereof, the Amending Act which permits reopening of the question of surplus and other matters covered by Ss. 17 to 21 even after possession is taken over by the State which could not be done prior to the amending Act is a law dealing with or inextricably connected with the law relating to acquisition. The learned counsel for the petitioner relies upon a decision of this court in Baswantrao Appaji v. commr., Nagpur Division , Nagppur, : AIR1978Bom167 , on the question of the scope of adjudications under s. 45(2) of the Ceiling Act. He further relies upon a decision in Anand kumar v. state of West Bengal : AIR1977Cal73 to show that such an Amending Act is not procedural in nature but is a law dealing with or inextricably connected with the law relating to acquisition.

9. As regards the scope and jurisdiction about the same. The scope of such provisions which confer jurisdiction upon an authority to examine legality and propriety of the proceedings and or order passed by the subordinate authorities is well settled. Normally in the revisional jurisdiction the revisional authority does not substitute its own view of the finding of the subordinate authority,. It is, however, true that the scrutiny in revisional jurisdiction may result in alteration of the determination of surplus by the subordinate authority. The decision relied upon on behalf of the petitioners on the scope and jurisdiction of the authority under s. 45(2) is not a decision where the scope is of s. 45(2) as such is determined but is decision on the question of commencement date for computation of the period of three years referred to in the proviso to s.45 (2) of the Ceiling Act.

10. In the Calcutta case, cited supra, the Amending Act, which was challenged is not having received the assent of the President , related to the West Bengal Estates Acquisition Act, 1953 (for short Original West Bengal Act). Section 44 of the Original Wst Bengal Act authorities an officer specially empowered by the State Government to revise entry in the record of rights finally published. Section 44(2-a) as it original stood, prescribed the period within which the revision was to be made as nine months which had been extended from time to time. By the West Bengal Estates Acquisition (amending) Act, 1967, the period was extended to nine years. Thereafter the West Bengal Estates Acquisition (amendment) Act, 1967 (for short West Bengal Amendment Act) Act, 2967 impugned in the Calcutta case was passed by which the period of 9 year was extended to 12 years. The West Bengal Amendment Act was passed with the assent of the Governor and not with the assent of the President . The Special Bench of the Calcutta High Court in para 6 of the decision , cited supra, held that the entry in the record of rights determines the quantum of land and the particulars of land of to retained and as such is the basis upon the which the quantum and the persons entitled to the compensation for acquisition of the properties would be determined. If, therefore, came to the conclusion that the West Bengal Amendment Act is a law relating to acquisition is referred to in Art. 31(2) of the Constitution requiring assent of the President for its ...

11. In order to understand whether the Amending Act is a law relating to acquisition of property within the meaning of Article 32(2) of the constitution, it is necessary to understand the scheme of legislative power of the State with reference to the relevant legislative entries in Lists II and III of the Seventh Schedule of the Constitution. The relevant Entries with reference to which the legislative power of the State in enacting the Ceiling Law can be invoked are Entries and 18 and 65 of the List II i. e. the State List and the Entries 42 and 46 of the List III i. e. the concurrent List , in the Seventh Schedule of the Constitution non. For the sake of convenience, these Entries along with Entry 95 lf List I, i.e. the Union List are reproduced below :-

List Ii State List

Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant and the collection of rents; transfer and alienation of agricultural land; and improvement and agricultural loans; and improvement and agricultural loans; colonization.

Jurisdiction and powers of all courts, except the Supreme court, with respect to any of the matters in this list.

List III Concurrent List

Acquisition and requisitioning of property.

Jurisdiction and power of all Courts except the supreme court with respect to any of the matters in this List.

List I Union List

Jurisdiction and powers of all Courts, except the Supreme court , with respect to any of the matters in this List, admiralty jurisdiction.'

It is clear from a perusal of the above Entries that 'jurisdiction and powers of courts with respect to any of the matters in this List, is a separate item included in each of the three Lists in the Seventh ?Schedule. The existence of separate legislative Entries regarding jurisdiction and powers of the Courts, itself shows that the subject matter of the law relating to procedure, jurisdiction and powers of the authority created under the ceiling Act is not necessary connected with the primary purpose of te enactment with the primary purpose of the enactment viz. A legislation relating to land or a legislation relating to acquisition of property. It is true that in interpreting the legislative Entries, are mere legislative heads and should be construed dental for the effective of the legislative power of the State. The legislative entry No.18 of the State List relating, to land has, therefore, been construed to comprehend within it the subject matter of procedure and powers of the Authorities created under a law relating to land vide AIR 1947 FC 19, Uday Chand Mehtab v,. Samarendra nath, but even though the subject matter relating to procedure and powers of the Authority under the Ceiling Act can be comprehended within the Entry No.42 relating to acquisition and requisition of property , it does not necessary follow that a law relating to procedure and powers of the Authority under the Ceiling Act is a law relating to acquisition as such within the meaning of Art. 31(2) of the Constitutions .

12. In examining the question whether a particular law is a law relating to acquisition of property or is a law relating to procedure, jurisdiction or power of the authority resort can be had to the doctrine of pith and substance to find out the true nature that normally the said doctrine is made applicable to determine whether the impugned statute is in substances or is primarily within the legislative field of the competent legislature, it is valid notwithstanding its incidental encroachment in the forbidden sphere of legislation. The doctrine is evolved by the Judicial Committee originally in the cases arising under the Canadian Constitution (The British North America Act, 1867). Lord Atkin has v Lymn (1937) 3 AII ER 598 :(1937) AC 863:

'It is well established, by Russell v. Queen 18827 AC 829 that you are to look at the 'true nature and character of the legislation ... the pith and substances of the legislative is within the express powers then it not invalidated if., incidentally it affects matters which are outside the authority field. The legislation must not, under the guise of dealing with one matter, in fact encroach upon the forbidden field'. In the above case of Gallagher v. Lyn,m (1973) AIIER 598, can also be usefully quoted for our purpose: 'the true nature and character of the legislation in the particular instance under discussion must always be determined in order to ascertain the class of subjects to which it really belongs.'

13. The said doctrine of pith and substance has been made appliance ot the cased under the government of India Act, 1935 and the Indian Constitution also. See Prafulla Kumar v. Bank of Coomerce, v. Mutuswami, AIR 1941 FC 60, Subramanyan v. Mutuswami, AIR 1941 SC 297 ; and Hoechest Pharmaceuticals Ltd. v. State of Bihar, : [1985]154ITR64(SC) .

14. The term 'Pith and Substance' is not a term of the art but is term of convenience and the principle underlying it can be usefully resorted to in the instant case although it does not involve really speaking any problem of overlapping legislative powers as such. In this regard it would be appropriate to refer to the decision of the Patna High Court in Atma Ram v, State of Bihar : AIR1952Pat359 , in which the said doctrine was made applicable to determine the question whether the tax in question is a tax on goods and passengers carried by road or is a tax on trade and commerce infringing the fundamental right to free trade and business guaranteed right to under Art. 19(1)(g) of the Constitution for which purpose the High Court of Patna determined whether the impugned Statute falls in Entry No. 26 of List II of Seventh Schedule relating to trade and commerce of Entry No 56 of the same list relating to tax on goods and passengers. The said doctrine was made applicable in the above case although there was no question of overlapping legislative powers because the matters were in the same list. The observations of Sarjoo Prasad, J.in para 17 at page 366 of the decision, for cited supra, can be usefully referred dto for our purpose in the instant case:

'It is next contended that by imposing those restrictions the Act affects the right of free 'trade or business' which the citizens enjoys under Art. 19(1)(g) of the constitution. This argument fails to take notice of the main purpose of the legislation which is to tax goods and passengers carried by road. The subject of 'trade and commerce within the state' falls under Entry 26 of List 2 of Sch. VII of the constitution List relating to taxes on goods and passenger. The indirect effect of the taxation or the incidents thereof may be to interfere with the trade of motor transport. What has to be looked into is the pith and substance of the legislative and not the indirect effects thereof. It is well settled that the Legislature in framing the legislation on a particular subject may incidentally encroach upon certain other fields of legislation but that will not affect the vires of the legislations so long as the Legislature is acting within the bounds of the constitution field allotted to it, and the primary object of the legislation falls within that bound. That is what is called the pith and substance rule; and the rule, in my opinion , applies with equal force to different subjects of legislation in the same list. Taxation is not a restraint on trade unless it is discriminatory in its character and is levied with the object of helping one person or party against the other. The Court will, thereofre, be reluctant to declare a taxing statute unconstitutional merely because it is claimed that the legislation may result in some kind of interference with trade or commerce which may be indirectly the unavoidable consequences of all taxing statutes. If the subject of the legislation is within the taxing authority of the legislature concerned , that should be sufficient to sustain it; see, for instance, Err, v c. T. Doremus (1919) 249 US 86 at and J. W. Bailey v. Drexel Furniture C. (1922) 259 US 20'.

15. Examining the impugned Amending Act in this case its bare perusal would show that it is essentially or in pith and substance an Act relating or in pith and substance an Act relating to procedure, jurisdiction or power of the authority under the Ceiling At. The Amending Act in the instant case is not dealing with the subject of acquisition as such but is dealing with the question of revisional power of the Sate Government under s. 45 (2) of the Ceiling Act. Adjudication under s 45 (2) of the Ceiling Act may ultimately affect determination of surplus; nonetheless it cannot be said to be perty as such. The pith and substance of the Amending Act is in relation to the jurisdiction and powers of the Authority under Section 45(2) of the Ceiling Act, or in or 65 of the State List. Even assuming that the subject matter of the Amending Act is covered by the Entry No. 42 of the Concurrent List relating to acquistion and requisition of property , it does not in pith and substance enact a law relating to acquisition as such within the meaning of Article 31(2) of the constitution but enacts in with and substance a law relating to procedure for acquisition which is covered by Entry No. 46 of the Concurrent List in the Seventh Schedule or for that matter Entry No. 42 itself of the said List.

16. It has to be seen from the provisions of Art. 200 of the constitution that except in certain cases in which the assent of the President is necessary , normally the assent of the Governor is enough for enacting a law under legislative is power of the State. It is only when the law in question is pith and substance a law falls within the ambit of Art. 31 of the Constitution for which the assent of the President is necessary under Art. 31(3) of the Constitutions.

17. It has further to be seen that the phraseology used in Art. 31(3) of the Constitution is such law as is referred to in clause (Underlining mine). The question that has, therefore, to be considered b is as to what the expression 'law which is referred to in clause (2) means. In my view, the law referred to in clause (2) of Article 31 is a law of compulsory acquisition for public purpose and containing the provisions for acquisitions of the property for an amount which may be fixed by such law. In other words, , Art, 31(2) of the Constitutions contemplates a law which is in pith ans substance law relating to acquisition as such only and not the law relating to procedure and or jurisdiction or powers of the Authority under such law . It is even open to doubt whether the whole law requires the assent of the President or whether only the provisions which deal with the purpose of acquisition and provide for the amount of compensation require the assent of the President . Be that as it may, it is, however, clear that at any rate, the lae, in pith and substance relating to procedure or jurisdiction or powers of the Court does not require the assent of the President.

18. The Amending Act included in this .... Ther assent of the President , since it enacts a law which is in pith and substance a law relating to procedure, jurisdiction or power of the Court under s. 45(2) of the Ceiling Act and is not a law relating to acquisition the Constitution. In this view of the matter, it is really not necessary to consider the ratio of the Calcutta case, which does not examine the question from this point of view. At any rate, it is not necessary to go into that decision because the Court holds in that case, that the West Bengal Amending Act in question in that Court case is inextricably connected with the law of acquisition because the amount as well as the persons entitled thereof depend upon the entry in the record of right for revising which the period mentioned is extended by the impugned Amending Act. In the instant case, I am of the view that the Amending Act does not provide for any substance basis for acquisition as such ans cannot, therefore, be said to be a law inextricably connected with the law of acquisition.

19. There is yet another angle from which this question can be looked at. As the legislative history of the Ceiling Act shows the original Ceiling Act, which contains original Ceiling Act, which contains original s. 45(2) and its further amendments except the Amending Act in question have been passed with the assent of the President. Since the original the provident the substantive power conferred of by it upon the revisional authority to interfere with the orders of the subordinate Ceiling Authority , in which is implicit the power to determine surplus can be said to be validly conferred in the sense that it cannot be assailed under Art. 31(3) of the Constitution assuming that tit enact a law relating to acquisition as is referred to in clause (3) of Art. 31 of the Constitution . The proviso to S. 45 (2), which deals with the restriction upon the powerr to revise is procedural in nature. It is also originally assented to by the President. The deletion by the Amending Act of the condition in the exercise of power under S. 45(2) viz. That the possession of such land has not been taken under sub-section (4) of s 21' does not detract from the original power conferred by the ceiling ?act to interfere with the orders of the subordinate authority. The effect of deletion is that even if possession is taken over by the State, the power of revision State Government of its delegate/. The Amending Act, which removes the fetter in the exercise of power under the substantive part of s. 45 (2) of the Ceiling Act, removes a procedural restriction upon the exercise of that power and cannot, therefore, be said to be a law relating to acquisition as such requiring the assent of the President under Art 32(3) 0f the Constitution. In this view of the matter also it cannot and be said that the Amending Act is invalid and unenforceable in the absence of the assent of the President.

In the result, the petition fails and is dismissed. However, there will be no order as to costs.

20. Petition dismissed.


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