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T. Dattam Bhat Vs. State of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 34 of 1957
Judge
Reported inAIR1959Kant222; AIR1959Mys222
ActsConstitution of India - Articles 13(3), 14, 31 and 31A; Mysore Inams Abolition Act; Mysore (Personal and Miscellaneous) Inams Abolition Act, 1955 - Sections 1(4), 6, 6(1), 7, 9, 16, 17, 23, 26, 27, 38 and 40
AppellantT. Dattam Bhat
RespondentState of Mysore and anr.
Appellant AdvocateG.S. Ullal, Adv.
Respondent AdvocateAdv. General
Excerpt:
.....from the present case. in that case the legislature clearly purported to act under entry 42 but in doing so acted in a manner which resulted in no compensation being paid. in this case the legislature, so far as these lands are concerned, has clearly awarded no compensation. this contention of the learned advocate must therefore fail. this contention of the learned advocate for the petitioner must therefore fail. 13. all the contentions of the learned advocate for the petitioner, therefore, fail......with less than two and a half acres of garden land or five acres of wet land or ten acres of dry land in respect of which he is entitled to be registered as an occupant, the right of quasi-permanent tenants to be registered as occupants under this sub-section shall be limited to the extent which shall be determined as follows : --'the total area of lands in respect of which quasi-permanent tenants would have been entitled to be registered as occupants shall be divided among the quasi-permanent tenants and the inamdar in such manner as may be prescribed by rules so that the inamdar may get not less than two and a half acres of garden land or five acres of wet land or ten acres of dry land.' 11. in my opinion, the manner in which the total area of lands, in respect of which.....
Judgment:

S.R. Das Gupta, C.J.

1. The petitioner before us is an Inamdar of Kuppagadde Village, Sorab Taluk in Shimoga District. In this petition ho is challenging the validity of the Mysore Inams Abolition Act, 1954 and also of the Notification made thereunder by the Government of Mysore, dated 20-9-1956. By the said Notification the provisions of the Act were made applicable in respect of certain Surveys and Settled Inam Villages, in the Districts of Bangalore and Shimoga, as specified in the said Notification.

2. The impugned Act came into force on 15-3-1955. It was an Act, as the preamble of it shows, to provide for the abolition of personal inams and certain miscellaneous inams in the (Mysore Area) except Bellary District. Sub-section (4) of Section 1 of the said Act provided that except Sections 2, 27, Section 8 and 40, the rest of the said Act shall come into force in respect of any inam village or minor inam in an unalienated village, on such date as the Government by Notification appoint. By virtue of this provision the Government of Mysore issued on 20-9-1956 a Notification whereby it appointed 2-10-1956 as the date on which the rest of said Act would come into force in respect of Surveys and Settled Inam Villages as specified thereunder of Bangalore and Shimoga Districts. The petitioner before us challenges the validity of this Act and also of the said Notification issued by virtue of the powers conferred by Sub-section (4) of Section 1 of the said Act.

3. The first ground urged before us -by the learned Advocate for the petitioner was that by the said Notification the Government of Mysore has made a discrimination between inamdars holding surveyed and settled villages and those holding unsettled villages. This distinction, according to the learned Advocate for the petitioner, was based upon no intelligible differentia nor does it bear any rational or substantial relationship to the object of the Act. He contended that both settled inam villages and unsettled inam villages possess common characteristics, e.g., the source of the grant is the same, i.e., the State, and liability to the Government is also the same. That being so, it was contended before us that the said Notification contravened the provisions of Article 14 of the Constitution and should be declared void.

4. In my opinion, there is no substance in this contention. At the outset, I should mention that the learned Advocate for the petitioner did not contend before us that the Act itself is void for having conferred power upon the executive to make a discrimination. In fact, in view of the decision of the Supreme Court reported in Biswambhar Singh v. State of Orissa, : [1954]1SCR842 , and the decision of the High Court of Madras reported in Globe Theatres Ltd. v. State of Madras, : AIR1954Mad690 , it was not possible for him to raise such a contention.

In the Madras case, Chief Justice Rajamannar, after reviewing the decisions of the Supreme Court on this point, held that the result of these decisions was that if the policy and object of the Act can be discovered out of the four comers of that Act including the preamble, and discretion is vested in the Government to make a selection in furtherance of that policy and object for the application of the Act, then the provision conferring such power is not void as offending Article 14 of the Constitution. The learned Advocate for the petitioner, however, impugned the validity of the Notification, issued under the Act.

In order to succeed in his contention the learned Advocate will have to show that the Notification in question, to use the words of Their Lordships of the Supreme Court in : [1954]1SCR842 , was not in furtherance of the policy of the Act but in bad faith. In the said case, which also related to an Act the object and purpose of which was to abolish all the rights, title and interest in land, of intermediaries. Their Lordships observed as follows:

'From the very nature of things a certain amount of discretionary latitude had to be given to the State Government. It would have been a colossal task if the State Government had to take over all the estates at one and the same time. It would have broken down the entire administrative machinery. It could not be possible to collect sufficient staff to take over and discharge the responsibilities. It would be difficult to arrange for the requisite finance all at once. It was, therefore, imperative to confer some discretion on the State Government.

It has not been suggested or shown that in practice any discrimination has been made. If any notification or order is made, not in furtherance of the policy of the Act but in bad faith and as and by way of discrimination such notification or order, which by virtue of Article 13(3) comes within the definition of 'law' will itself be void under Article 13(2).'

In my opinion, the effect of these observations of their Lordships is that the mere fact that the State Government has taken over some of the estates for the present by a notification which may appear to amount to a discrimination, would not be sufficient to render the notification invalid. It will have to be shown that the Notification was made not in furtherance of the policy of the Act but in bad faith. In the Madras decision, to which I have referred,

Chief Justice Rajamannar also observed as follows : --

'If such power is improperly exercised in any particular case, that is not in furtherance of the policy and object of the Act, but arbitrarily, then the court can strike down the exercise of such power on every such occasion.'' Can it be said that the Notification issued in this case was not in furtherance of the policy of the Act but was issued in bad faith? The object and purpose of the Act as it is clear from its preamble, is to provide in the public interest for the abolition of personal inams and certain miscellaneous inams in the (Mysore Area) except Bellary District, This Notification is clearly in furtherance of that policy and no material was placed before us which could in any way support the contention that the Notification was issued in bad faith. That being so, I am clearly of the opinion that this contention of the learned Advocate for the petitioner must fail.

5. I now come to the next and perhaps the most important ground urged by the learned Advocate for the petitioner in support of this petition. The learned Advocate contended that the Act itself is bad, it being a colourable piece of Legislation. The way in which the learned Advocate put his

contention on this ground was as follows : --

6. It is clear from the provisions of the Act that no compensation has been awarded in respect of the lands mentioned in Section 9 of the Act. This would be clear from the provisions of Section 17 which lays down the total compensation payable in respect of any Inam. The items mentioned in the said Section in respect of which compensation has been calculated do not include the lands mentioned in Section 9 of the Act. It is clear, therefore, that no

compensation was awarded in respect of the said lands although the Legislature purported to award

compensation in respect of the whole Inam, as is evidenced by Section 16 of the Act.

It was, therefore, contended that the Legislature purporting to act under the power conferred by Legislative Entry 42 of List III and purporting to lay down the principles for determining compensation has in effect given no compensation in respect of these lands. Thus it was argued, a legislation of this type constitutes a fraud on the Constitution inasmuch as it is a colourable exercise of the powers under Entry 42 of the Legislative List III of Schedule VII of the Constitution.

7. Although this contention, at first sight, appears to be attractive I, on a careful consideration of the matter, have come to the conclusion that the Same cannot be accepted as sound. I should at the very outset mention that no compensation in fact is payable under the Act in respect of these lands, as rightly contended by the learned Advocate for the petitioner. This would clearly appear from the provisions of Section 17 itself. The different sums mentioned in the said Section, which go to constitute the total compensation payable in respect of any Inam, do not include any item of compensation in respect of these lands.

In other words no compensation is payable in respect of these lands under the said section. I cannot accept the argument of the learned Advocate General on this point, viz., that Section 16 of the Act shows that compensation is payable for the Inam as a whole taking into account each of the lands which constitutes the Inam. Section 16, in my opinion, does not warrant such a conclusion. What it says is that the compensation shall be determined for the Inam as a whole and not separately for each of the interests therein. In my opinion, the expression 'each of the interests therein' does not mean, each of the lands constituting such Inam.

The expression 'each of the interest therein' has a different connotation. Clause 6 of Section 2, which purports to define 'Inamdar' provides that an 'inamdar' may be the owner of an entire Inam village or a sharer therein. Thus there may be co-sharers in an Inam all of whom would be Inamdars within the definition of that expression as appearing in Clause 6 of Section 2 of the Act. When therefore it is said that compensation shall be determined for the Inam as a whole and not for each of the interest therein, what is meant is that the separate interests of these co-sharers will not be separately assessed, but compensation shall be paid for the whole Inam, leaving the question of apportionment to be decided amongst the Inamdars in a subsequent proceeding.

The said Section, to my mind, does not mean, as contended by the learned Advocate-Genera I, that compensation shall be paid for the Inam as a whole without taking into account each of the lands which constitutes the Inam. That this cannot be the true construction of the provisions of Section 16 is, to my mind, clear from the provisions of the next section, i.e., Section 17, wherein it is provided that the total compensation payable in respect of any Inam shall be the aggregate of the sums specified therein and the sums specified are the sums payable by way of compensation for the various kinds of lands which constitute an Inam.

The lands mentioned in Section 9 are not mentioned in the said section and no compensation has been shown as against the said land. It is, therefore, clear to my mind, that compensation has not been paid in respect of these lands.

8. The question which then arises is, does this Fact make the Act in question a colourable piece or legislation, or could it be said that by reason of this fact a fraud on the Constitution has been committed? It cannot be doubted that the Legislature in purporting to exercise its powers under Entry 42 of the Legislative List III in Schedule VII, which only empowers the Legislature to lay down principles on which compensation for property acquired or requisitioned is to be determined, cannot act in a manner which would result in not paying any compensation,

That is the view which has been clearly expressed by the majority of the Judges of the Supreme Court in the case of State of Bihar v. Kameshwar Singh, : [1952]1SCR889 . The question is, has the legislature in this case acted in that manner with regard to these lands? In other words, has the Legislature at all purported to lay down the principles for determining compensation for these lands mentioned in Section 9 of the Act and in doing so have acted in such a manner that the result has been that no compensation has become payable in respect of these lands.

In my opinion, the answer to this question must be in the negative. The provisions of the impugned Act show that the Legislature although it gave compensation for other kinds of lands in an Inam did not do so, so far as these lands are concerned. It cannot, therefore, be said that the Legislature was purporting to lay down the principle on which compensation for these lands is to be determined and in doing so has acted in a manner which has resulted in no compensation being paid.

The Legislature so far as these lands are concerned did not award any compensation and did not try to lay down principles on which compensation is to be determined for these lands. The Legislature, therefore, so far as these lands are concerned, did not at all purport to act under Entry 42 of Schedule VII, List III. The decision of the Supreme Court on which the learned Advocate for the petitioner mainly relied in support of his contention is, to my mind, clearly distinguishable from the present case. In that case the Legislature clearly purported to act under Entry 42 but in doing so acted in a manner which resulted in no compensation being paid.

What happened in that case was, that Section 23 of the Act in question laid down the method of computation of net income. It provided that the net income of a proprietor or tenure-holder shall be computed by deducting from the gross asset of such proprietor or tenure-holder, as the case may be, the various sums mentioned in clauses set out therein. Clause (f) of the said section which was impugned in that case provided for various deductions from the gross assets which, as their Lordships held, resulted in no compensation being payable and these provisions regarding payment of compensation became illusory.

It is for that reason that their Lordships held that the said piece of legislation was a fraud on the Constitution and was beyond the power of the Legislature under Entry 42. Chief Justice Mahajan in his judgment observed as follows : --

'The power of legislation in Entry 42 is for enacting the principles of determining such compensation and for paying it. The principles to be enacted are for determining the equivalent price of the property taken away. It may be that the determination of the equivalent may be left for ascertainment On the basis of certain uniform rules; for instance, it may, be laid down that the principles for determining compensation will be the rental basis or the market value of the property, etc.

But it is difficult to imagine that there can be any principles fur non-payment of compensation or for negativing the payment of compensation. No principles are required to be stated for non-payment of compensation. A simple statement that no compensation will be paid is quite enough to attain the object. I know of no principles for determination of compensation which result in its non-payment except in the Act under notice.

All legislative heads have to be reasonably construed and the power given under Entry 42 is a positive power given to bring about the result of payment of compensation and not non-payment of the same. The key words' in the entry are 'compensation' and 'given'. Anything that is unrelated to compensation or the giving of it cannot be justified by legislation under Entry 42'. It thus appears from the above observations of his Lordship that if the Legislature in a straightforward manner had made a statement that no compensation will be paid that would be quite enough to attain its object, namely, not to pay any compensation. In this case the Legislature, so far as these lands are concerned, has clearly awarded no compensation. Therefore, so far as these lands are concerned, it cannot be said that the Legislature purported to award compensation and to lay down principles for determining the same and in doing so has acted in a manner which has resulted in nonpayment of compensation.

The principles laid down by their Lordships at the Supreme Court therefore are not applicable to this case. In my opinion also, in view of the clear provisions of Article 31(a) of the Constitution a law providing for acquisition without payment of compensation cannot be questioned. In the Supreme Court case on which the learned Advocate for the petitioner relied, their Lordships did not proceed on the basis -- and this fact is not denied by the learned Advocate for the petitioner -- that because in awarding compensation for the estate acquired no compensation has been made payable in respect of some lands forming part of the estate, the Act was invalid.

They proceeded, as I have already mentioned, on a different basis which is not applicable to the present case. I, therefore, hold that this contention of the learned Advocate for the petitioner must be rejected.

9. The next contention urged on behalf of the petitioner, to my mind, bears no substance. The learned Advocate referred to the proviso of Section 6 of the impugned Act and contended that although Section 6 of the Act provides for distribution of certain lands between quasi-permanent tenant and inamdar no rule or test has been laid down in the Act itself for determining how such distribution is to take place. It was contended that such a matter cannot be left to the executive to provide for by means of rules; it being a matter of policy and not merely an ancillary matter.

10. Sub-section (1) of Section 6 of the Act provides that

'subject to the provisions of Sub-section (2), every quasi-permanent tenant shall, with effect on and from the date of vesting, be entitled to be registered as an occupant in respect of all lands of which he was a quasi-permanent tenant, provided :

(i) he continued to be a tenant of such lands until the date of vesting; or

(ii) he had been unlawfully dispossessed of such lands by the inamdar between the 30th day of June, 1948 and the date of vesting. The proviso to the said sub-section, on which the present contention rests, reads as follows --

'Provided further that if by the operation of this sub-section the inamdar is left with less than two and a half acres of garden land or five acres of wet land or ten acres of dry land in respect of which he is entitled to be registered as an occupant, the right of quasi-permanent tenants to be registered as occupants under this sub-section shall be limited to the extent which shall be determined as follows : --

'The total area of lands in respect of which quasi-permanent tenants would have been entitled to be registered as occupants shall be divided among the quasi-permanent tenants and the inamdar in such manner as may be prescribed by rules so that the inamdar may get not less than two and a half acres of garden land or five acres of wet land or ten acres of dry land.'

11. In my opinion, the manner in which the total area of lands, in respect of which quasi-permanent tenants would be entitled to be registered as occupants, shall he divided among the quasi-permanent tenants and the inamdar so that the inamdar may not get less than 2 1/2 acres of garden land or 5 acres of wet land or 10 acres of dry land is a matter which cannot be said to be a matter of policy relating to essential legislative function.

The policy has been sufficiently indicated in the proviso, that is, when the inamdar is left with less than 2 1/2 acres of garden land or 5 acres of wet land or 10 acres of dry land, the inamdar will get a portion of the land in respect of which quasi-permanent tenants would have been entitled to be registered as occupants so that the inamdar may not get less than 2 1/2 acres of garden land or 5 acres of wet land or 10 acres of dry land.

The manner in which this policy is to be carried out or, in other words, how the division of the lands, in respect of which quasi-permanent tenants would have been entitled, shall be effected amongst the quasi-permanent tenants and the inamdar is, to my mind, an ancillary matter which can be conveniently left to the executive to prescribe by rules, I am unable to hold that it is a matter which the legislature must provide for by legislation. This contention of the learned Advocate must therefore fail.

(12) The last contention urged before us by the learned Advocate for the petitioner was that by virtue of the impugned Act the minor inamdars get more favoured treatment than the petitioner and the Act has discriminated in favour of the minor inamdars and as such is void under Article 14 of the Constitution. In my opinion, there is no substance in this contention. Apart from the fact that the minor inamdars can form a class by themselves as distinct from inamdars, it does not appear to me that the minor inamdar under the Act gets a more favoured treatment than the inamdar.

The learned Advocate was unable to point out to us any provision in the Act which puts the minor inamdar in a more favourable position. Section 7 of the Act enjoins that every holder of a minor inam to which the Act is applicable shall, with effect on and from the date of vesting, be entitled to be registered as an occupant of all lands except those mentioned in Clauses (i), (ii) and (iii) of Sub-section (1) of the said section.

There is a corresponding section, being Section 9 of the Act, which enjoins that every inamdar with effect on and from the date of vesting be entitled to be registered as an occupant of all lands other than the same lands mentioned in Clauses (i), (ii) and (iii) of Sub-section (1) of Section 7 and the lands in respect of which the minor inamdar has been registered. To all intents and purposes the position of a minor inamdar and inamdar is the same under these two provisions. No difference has been made between an inamdar and a minor inamdar in respect of compensations to be paid to them.

There is only a special provision made in Section 26 for the holder of an unenfranchised minor inam, who, under Section 7 of the Act before he gets registered as an occupant under the said section, has to pay premium to the Government. Section 26 enacts that if such a holder is not registered under Section 7, he shall be paid as compensation an amount equal to ten times the average net annual income derived by him during the period of five years immediately preceding the date of vesting.

I do not think any discrimination has been made in favour of the minor inamdar by virtue of the said provision. Except what is provided in the said section, the basis of compensation payable is the same in respect of all inams. This contention of the learned Advocate for the petitioner must therefore fail.

13. All the contentions of the learned Advocate for the petitioner, therefore, fail. This petition is dismissed with costs. Advocates's fee Rs. 100/-.

14. Somnath Iyer, J.

I agree.

15. Petition dismissed.


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