Chinnappa Reddy, J.
1. In 1961, the Andhra Pradesh Legislature passed the Andhra Pradesh (Ceiling on Agricultural Holdings) Act, 1961. The Act proved ineffective and did not serve the purpose for which it was designed. So, in 1973, with much flourish and fanfare, the Andhra Pradesh Legislature passed the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1 of 1973, claimed to be more effective than its predecessor. The Act was preceded by Act 13 of 1972 and earlier by an Ordinance dated 2-5-1972 banning alienation of agricultural land. Though Act 1 of 1973 was passed with much attendant publicity on 1-1-1973, it came into force only on 1-1-1975, the date notified by the State Government under S. 1 (3) of the Act. Very soon the constitutional validity of the Act was impeached on several grounds. A Full Bench of this Court upheld the validity of the Act in M. Venkata Rao v. State of Andhra Pradesh, : AIR1975AP315 . Despite the fact that the judgment of this Court was rendered on 11-4-1975, there has been considerable delay in the implementation of the Act and the weaker sections of the people, whose hopes were raised and to whom many promises were made by the Act, have yet, in most cases, to reap the promised benefits. Meanwhile, it was discovered that S. 4 of the Act had unequal incidence on Hindus on the one hand and Muslims and Christians on the other because the latter had no system of joint family and none had a right by birth. In order to remove this hostile discrimination, the Andhra Pradesh Legislature enacted Act 8 of 1977 and introduced S. 4-A into Act 1 of 1973. More about it later.
2. While going ahead with the imposition of ceiling on holding of agricultural lands, both the Houses of the Andhra Pradesh Legislature also passed a resolution authorising Parliament to regulate by law 'the imposition of a ceiling on urban immovable property and acquisition of such property in excess of the ceiling and all matters connected therewith or ancillary or incidental thereto'. The resolution was passed by the Houses on 7th and 8th April, 1972 in pursuance of Cl. (1) of Art. 252 of the Constitution. This was followed by an Ordinance dated 2-5-1972 and the Andhra Pradesh Act 12 of 1972, banning alienation of vacant land in urban areas in the State of Andhra Pradesh pursuant to the resolutions passed by the Legislatures of Andhra Pradesh and some other States, Parliament, on 17-2-1976 enacted the Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33 of 1976).
3. The constitutional validity of Andhra Pradesh Act 1 of 1973 is once more under attack, this time on the ground that its provisions are repugnant to the provisions of Central Act 33 of 1976. Other points, some touching on the constitutional validity of the Act and others not, have also been raised. We shall consider the issues raised one by one.
4. Sri. P. A. Choudary, learned counsel, who led the attack for the petitioners submitted that the source of power for both the legislations was Entry 18 in List II of the Seventh Schedule of the Constitution, that in relation to land which was agricultural land within the meaning of the State Act but not agricultural land within the meaning of the Central Act there was clear repugnancy between the two Acts, that as a result of the repugnancy the definition of agricultural land in the State Act would have to be struck down and that if that was done there would be nothing of substance left in the State Act.
5. Now, the questions to be considered are whether there is any repugnancy or inconsistency between the provisions of the State Act and those of the Central Act and, if there is, what is the effect?
6. First, what is repugnancy or inconsistency in relation to laws made by a Federal and a State Legislature? In Tika Ramji v. State of Uttar Pradesh, : 1SCR393 , Bhagwati J., referred to the three tests suggested by Nicholas in his Australian Constitution, 2nd Edition p. 303:-
'(1) There may be inconsistency in the actual terms of the competing statutes.
(2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to be a complete exhaustive Code.
(3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject-matter.'
Practically the same tests were suggested by Subba Rao J., in Deep Chand v. State of Uttar Pradesh, : AIR1959SC648 and by Sikri C. J., in State of jammu and Kashmir v. M. S. Farooqi, : 3SCR881 . It was not the contention of Shri P. A. Choudary that there was any direct conflict between the Central law and the State law, nor was it his contention that the Central law was intended to be a complete exhaustive code. His effort was to bring it within the third category of conflict. It is true as pointed out by the learned Advocate General, two laws dealing with the same subject-matter may co-exist and may be susceptible of simultaneous obedience. But, as pointed out by Evatt J., in Stock Motor Plough Limited v. Forsyth, 48 CLR 128.
'It is now established, therefore, that State and Federal laws may be inconsistent, although obedience to both laws is possible. There may even be inconsistency although each law imposes the very same duty of obedience. These conclusions have in the main, been reached, by ascribing 'inconsistency' to a State law, not because the Federal law directly invalidates or conflicts with it, but because the Federal law is said to 'cover the filed'.
This is a very ambiguous phrase, because subject-matters of legislation bear little resemblance to geographical areas. It is no more than a cliche for expressing the fact that, by reason of the subject-matter dealt with, and the method of dealing with it, and the nature and multiplicity of the regulations prescribed, the Federal authority has adopted a plan or scheme which will be hindered and obstructed if any additional regulations whatever are prescribed upon the subject by any other authority: if , in other words, the subject is either touched or trenched upon by State authority.'
In Victoria v. Commonwealth of Australia, 58 CLR 618, Dixon J., explained what was meant by 'inconsistency'. He said,
'When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.'
A simple, practical but not exhaustive test to determine when Federal and State laws in regard to the same subject-matter may be said to conflict is, perhaps, to ask the question whether if both the laws had been made by the same Legislature, the latter law would repeal the former law by implication. Conversely it has been said in Kutner v. Phillips, (1891) 2 QB 267, that a repeal by implication is only affected when the provisions of a latter enactment are so inconsistent with or repugnant to the provisions of an earlier one, that the two cannot stand together, in which case the maxim, 'leges posteriores priores contrarias abrogant' applies. In Meghraj v. Allah Rakhia, AIR 1942 FC 27. Justice Varadachariar J. Observed:
'The position will be even more obvious, if another test of repugnancy which has been suggested in some cases is applied, namely, whether there is such an inconsistency between the two provisions that one must be taken to repeal the other by necessary implication. For the application of this test, it will be immaterial whether the Central law is earlier or later in date then the provincial law.'
Again in Zaverbhai v. State of Bombay : 1SCR799 , the Supreme Court observed (at p. 758):
'It is true, as already pointed out, that on a question under Art. 254(1) whether an Act of Parliament prevails against a law of the State, no question of repeal arises; but the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together then the earlier is repealed by the later enactment, will be equally applicable to a question under Art. 254(2) when the further legislation by Parliament is in respect of the same matter as that of the State law.'
7. Therefore, do the Central law and the State law relate to the same subject-matter? Are they capable of standing together? Does the State law alter, impair or detract from the operation of the Central law? These are the questions which require to be answered. For that purpose, it is necessary to refer to the provisions of the two Acts.
8. At the very threshold, it has to be noticed that the source of power for both the enactments is Entry No. 18 in List II of the Seventh Schedule to the Constitution, which is,
'Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land; improvement and agricultural loans; colonization.'
9. The State Act applies to the whole of the State of Andhra Pradesh and imposes a ceiling on the holding of land which is defined as meaning 'land which is used or is capable of being used for purposes of agriculture, or for purposes ancillary thereto, including horticulture, forest land, pasture land, waste land, plantation and tope; and includes land deemed to be agricultural land under the Act'. By an explanation all land held under the ryotwari settlement, unless the contrary is proved is deemed to be land under the Act. The Central Act applies to the whole of the State of Andhra Pradesh and some other States, and imposes a ceiling on vacant land which is broadly defined to mean land, not being land mainly used for purposes of agriculture in an urban agglomeration. 'Agriculture' is defined as including 'horticulture', but not including '(i) raising of grass, (ii) dairy farming, (iii) poultry farming, (iv) breeding of livestock, and (v) such cultivation, or the growing of such plant, as may be prescribed'. It is further provided that land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records before the appointed day as for the purposes of agriculture. It is further provided that land shall not be deemed to be mainly used for the purposes of agriculture if the land has been specified in the master plan for a purpose other than agriculture. 'Urban agglomeration' is defined to mean the urban agglomeration specified in Column 2 of Schedule I and the peripheral areas specified in Column 3. The State Government is also empowered, with the previous approval of the Central Government, to declare any other area as an urban agglomeration having regard to its location, population and other relevant factors. It is patent that while the expression 'land' is defined in the widest terms in the State Act, the expression 'vacant land' is defined in very narrow terms. While the definition of 'land' in the State Act includes land which is used or which is capable of being used for purposes of agriculture, including horticulture, etc., the definition of 'vacant land' in the Central Act does not exclude from its compass land which is merely capable of being used for purposes of agriculture though not actually so used; it does not even exclude land used for the purpose of agriculture, if such land is not entered in the revenue or land records as for the purpose of agriculture or if such land has been specified in the master plan for purposes other than agriculture. Thus land which is agricultural land within the meaning of the definition of the State Act is not excluded from the applicability of the Central Act if the land is not mainly used for the purpose of agriculture or if it is not shown in the revenue or land records as used for the purpose of agriculture or if it is shown in the master plan as specified for a purpose other than agriculture or if it is used for raising of grass, dairy farming, poultry farming, breeding of livestock, and the cultivation or the growing of prescribed plants. In other words, land in an urban agglomeration which is capable of being used for agriculture, but is not mainly used for the purpose of agriculture is covered by both the Central Act and the State Act. Again, land which, though used for the purpose of agriculture, is not entered in the revenue or land records, as used for the purpose of agriculture, is also covered by both the Central and State Acts. Similarly land, which, though used for the purpose of agriculture, is specified in the master plan for a purpose other than agriculture, is covered by both the State Act and the Central Act. Further land though used for a purpose ancillary to agriculture other than the raising of grass, dairy farming, poultry farming, breeding of livestock and the cultivation or the growing of prescribed plants, is covered by both the Central and the State Acts. Thus land in an urban agglomeration which is capable of being used but is not actually used for the purpose of agriculture or is not shown in the revenue or land records as used for the purpose of agriculture or which, though used for the purpose of agriculture, is shown in the master plan as specified for a purpose other than agriculture or which is used for the purposes of raising of grass, etc., is subject to the ceiling limit imposed by both the Acts.
10. Section 8 of the State Act requires every person holding land on the notified date (1-1-1975) to submit a declaration in respect of his holding and it is required to include any land transferred by him on or after 24-1-1971. Thereafter the Tribunal is enjoined to determine whether the person holds or is deemed to hold, on the notified date, an extent of land in excess of the ceiling area. 'Ceiling are' is defined by S. 4 of the Act. In the case of a family unit of not more than five members it is to be an extent of land equal to one standard holding. In the case of a family unit consisting of more than five members it is to be an extent of land equal to one standard holding plus an additional extent of one fifth of one standard holding for every member in excess of five subject to a maximum of two standard holdings. Section 5 prescribes the standard holding in respect of each class of land. We may mention that in the case of Class A double crop wet land the standard holding is 4.05 hectares while in the case of Class K land the standard holding is 21.85 hectares. Section 10 enables the person holding land in excess of the ceiling limit to file a statement giving particulars of the lands which he proposes to surrender. The Tribunal is ordinarily to accept the surrender of land except in the circumstances specified in S. 10 (5). Section 11 provides for the vesting in the government of the land surrendered or deemed to have been surrendered with effect from the date of the order of the Revenue Divisional Officer taking possession or authorising any officer to take possession of the land. Section 15 provides for the payment of compensation to be calculated at the rate specified in the Second Schedule partly in cash and partly in bonds. The compensation provided by the Seventh Schedule is to be reckoned on the basis of the total land revenue payable on the lands surrendered by an individual.
11. Section 3 of the Central Act prohibits every person, on and from the commencement of the Act, from holding any vacant land in excess of the prescribed ceiling limit. Section 4 prescribes the ceiling limit which is to be five hundred square metres in the case of urban agglomeration falling within category A, one thousand square metres in the case of urban agglomeration falling within category B, one thousand five hundred square metres in the case of urban agglomeration falling within category C and two thousand square metres in the case of urban agglomeration falling within category D. For the purpose of calculating the vacant land held by a person, the land transferred by him on or after 17-2-1975, otherwise than by way of a bona fide sale under a registered deed for valuable consideration, is also to be taken into account. Sections 6 and 7 provide for the filing of statements by persons holding vacant land in excess of ceiling limit. Sections 8, 9 and 10 provide for the determination of vacant land in excess of ceiling limit and the acquisition of such land by the State Government. The excess vacant land acquired by the Government under these provisions is to vest in the Government from the date specified in a notification to be published after the determination of the vacant land in excess of the ceiling limit. Section 11 provides for the payment of compensation. Broadly, in the case of lands fetching income, compensation is to be eight and one-third times the net average annual income derived during the period of five consecutive years preceding the notification of acquisition. In the case of lands not fetching any income, the compensation is not to exceed R. 10 per square metre in the case of vacant land in an urban agglomeration falling within categories A and B and Rs. 5 per square metre in the case of vacant land in an urban agglomeration falling within categories C and D. There cannot be the slightest doubt that the scale of compensation provided by the Central Act will work out to be much higher than that provided by the State Act.
12. Thus both the Central and the State laws with which we are concerned have been enacted pursuant to the power given under the head 'land, that is to say, rights in or over land etc.', specified in Entry 18 of List II of the Seventh Schedule to the Constitution. Both the enactments purport to impose a ceiling on the holding of land of the specie covered by each of the enactments. The State Act applies, broadly, to all land which is used or is capable of being used for agricultural and allied purposes. The Central Act applies to all vacant land in an urban agglomeration barring land mainly used for purpose of agriculture, shown in the revenue or land records as such and not specified in the master plan for a purpose other than agriculture. The two Acts, both of which are intended to impose a ceiling on the holding of land, apply, as we have already pointed out simultaneously to the same land in an urban agglomeration which is capable of being used but is not actually used for the purpose of agriculture or which is not shown in the revenue or land records as used for the purpose of agriculture or which though used for the purpose of agriculture is specified in the master plan for a purpose other than agriculture or which is used for the purposes of raising of grass, etc. How is this land which is covered by both the Acts to be dealt with? Is it to be subject to the ceiling imposed by the State Act or is it to be subject to the ceiling imposed by the Central Act? What alienations of the land are not to be recognised and from what date? From what date is the land to vest in the Government? What is the compensation to be awarded for the land? The two Acts enjoin different procedures, provide for different dates of applicability, prescribe different dates from which alienations are not to be recognised, impose different ceiling limits, stipulate different dates for vesting in the Government and award compensation at different rates. In relation to the land to which both the Acts apply there is therefore a clear conflict; the two Acts cannot stand together; the State Act certainly alters, impairs or detracts from the operation of the Central Act to the extent of the land covered by both the Acts. To that extent the State Act must be held to be repugnant or inconsistent with the Central Act.
13. Sri P. A. Choudary argued that once a State law was found to be repugnant to a Central law, the State law must yield to the Central law on general principle of constitutional law, on a construction of Art. 254(1) of the Constitution and by the very force of Art. 252 of the Constitution.
14. It is true that on general principles, where a given field of legislation is within the competence of the Federal and Provincial Legislatures, and both have legislated, the Federal enactment must prevail. Vide: la. Compagnie Hydraulique De St. Francois v. Continental Heat and Light Company, 1909 AC 194, Cohens v. Virginia, (1823) 5 L Ed 257 at 286 and Federated Saw Mills v. James Moore, 8 CLR 465 at 530. But we are not really concerned with general principles, bound as we are by the written word of the Constitution. There is yet no reason to think that the problem cannot be solved by a reference to the relevant Articles of the Constitution.
15. Chapter I of Part II of the Constitution provides for the distribution of legislative powers, Art. 246(1) gives exclusive power to Parliament to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule familiarly known as the Union List. Article 246 (2) gives power to both Parliament and the Legislature of any State to make laws with respect to any of the matters enumerated in List III, called the Concurrent List. The power of the State Legislature to legislate in regard to matters enumerated in the Concurrent List is, however, subject to the power of Parliament to legislate in regard to matters enumerated in the Union List. Article 246 (3) gives exclusive power to the Legislature of any State to make laws for such State or part thereof in regard to any of the matters enumerated in List II in the Seventh Schedule, known as the State List. The power of the State Legislature to make laws in regard to matters enumerated in the State List, is, however, made subject to the power of Parliament to make laws in regard to matters enumerated in the Union List and the Concurrent List. The supremacy of Parliament to legislate in regard to matters enumerated in the Union List is thus provided by Art. 246 itself.
16. Art. 249 empowers Parliament to legislate with respect to a matter in the State List if the Council of State declares by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest so to do. The power of Parliament extends so long as the resolution remains in force but not exceeding one year. Article 250 enables Parliament to legislate with respect to any matter in the State List while a Proclamation of Emergency is in force. Article 251 provides that in the case of inconsistency between law made by Parliament under Arts. 249 and 250 and law made by the Legislatures of States, the law made by Parliament shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be inoperative.
17. Article 252 with which we are concerned enables Parliament to make laws regulating any of the matters with respect to which Parliament has no power to make laws if the Legislatures of two or more States resolve to the effect that Parliament may by law regulate those matters. The Article further provides that any Act so passed shall apply to such States and that while it may be amended or repealed by an Act of Parliament passed or adopted in like manner it shall not be amended or repealed as respects any State by an Act of the Legislature of that State. It will be useful to extract Art. 252 here.
It is as follows:
'252. (1) If it appears to the Legislature of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in Arts. 249 and 250 should be regulated insuch States by Parliament by law, and if resolutions to that effect are passed by all the houses of the Legislatures of those States it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses by each of the Houses of the Legislature of that State.
(2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State.'
18. Article 253 enables Parliament to make laws for implementing any treaty, agreement or convention with any other country or any decision made at any international conference, notwithstanding anything in the earlier provisions relating to the distribution of legislative powers.
19. Article 254 provides for the resolution of inconsistencies between laws made by Parliament and laws made by the Legislatures of States. It is as follows:-
'254. (1) If any provision of a law made by the Legislature of State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of Cl. (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or , as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2)Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent list contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at anytime any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.'
20. There was considerable discussion about the scope of Art. 254. While Sri Choudary contended that the Article applied to inconsistencies between any provision of a law made by the Legislature of a State and any provision of law made by Parliament which Parliament was competent to enact, that is to say, any provision of law made by Parliament pursuant to the powers given to it under the Constitution wherever they be found and not merely in the Concurrent List, the learned Advocate General argued that Art. 254 was confined to inconsistencies between laws made by Parliament and the Legislature of a state with respect to matters enumerated in the Concurrent List only.
21. A plain reading of Art. 254 unhampered by judicial precedent, appeared to us, on a first impression, to support the contention of Sri P.A. Chowdary. The following observation of Sir Ivor Jennings in 'Some Characteristics of the Indian Constitution' page 61, also supports his contention:-
'Some authorities consider that this Article applies only to subjects in the Concurrent List, but it is not so phrased.' So also the following observations of Varadachariar J., in Subramanyan v. Muttuswami, AIR 1941 FC 47 at 67, 'The validity of this contention will depend upon the import of the expression 'federal law' occurring in the opening part of sub-s. (1) of S. 107. It may be conceded that the words 'which the Federal Legislature is competent to enact' may refer to the first list also and they need not be qualified by the words occurring later and referring to the Concurrent Legislative List, because, if these later words were intended to qualify the opening words of the sub-section also, it would not have been necessary to use the words 'which the Federal Legislature is competent to enact' in the earlier portion.'
Our first impression has been proved to be wrong. The Supreme Court has pronounced on the matter. In A. S. Krishna v. State of Madras, : 1957CriLJ409 , the Supreme Court observed with reference to S. 107 of the Government of India, Act, 1935 (at p. 300) :
'For this section to apply, two conditions must be fulfilled: (1) The provisions of the Provincial law and those of the Central Legislation must both be in respect of a matter which is enumerated in the Concurrent List, and (2) they must be repugnant to each other. It is only when both these requirements are satisfied that the Provincial law will, to the extent of the repugnancy, become void.'
This statement of law was treated by the Supreme Court as well settled in Kerala State Electricity Board v. Indian Aluminium Company, : 1SCR552 . Shri P. A. Choudary attempted to get over the impact of these observations of the Supreme Court on the ground that they were unnecessary on the view taken by the Supreme Court on the other questions before them in those cases . We are afraid we cannot so casually brush aside deliberate pronouncements of the Supreme Court. No doubt we may not feel ourselves bound by casual observations made by the Supreme Court, but we are not prepared to say that the observation of the Supreme Court that the law was well settled that a question of repugnancy can arise only with reference to a legislation falling under the Concurrent List was such a casual observation.
22. If Art. 254 does not apply, we must look to Art. 252 to resolve the problem, for we cannot assume a lacuna in the Constitution. In fact, the language of the Article, 'any Act so passed shall apply to such States', is peremptory enough to suggest that the Act so passed shall prevail over any other State law. The position is further clarified by the 2nd clause of Art. 252 which bars the amendment or repeal of the Act by any Act of a State Legislature. Even Parliament is not empowered to amend or repeal the Act except after following, again, the procedure prescribed by Art. 252(1). Thus a law made by Parliament pursuant to the power surrendered to it by the Legislatures of two or more States holds a very special position under the Constitution and must be held to prevail over any other State law. The matter may be looked at from another angle. The law having been made pursuant to the authority given by the Legislatures of States may be treated as if it is a law made by a State Legislature. If so, it must be held to repeal by implication whatever State law prescribed it to the extent of the conflicting provisions. There can, of course, be no later State law containing provisions repugnant to it because of the bar in Art. 252(2). We, therefore, hold that a law made by Parliament pursuant to the power surrendered to it under Art. 252 prevails over a State law and the provisions of a State law to the extent that they conflict with the Central law are void.
23. In fairness to the Advocate General we must hold that he did say that a Central law made under the power surrendered under Art. 252 must prevail over a State law, if there was any repugnancy. But, his whole point was that there was and there could be no question of repugnancy. One of his submissions was that when both the Central and the State Legislatures legislate with respect to a matter not found in the Concurrent List, there could be no question of repugnancy. The argument is without substance. Article 251 of the Constitution itself recognises such repugnancy when Parliament, under Art. 249 or Art. 250 and the Legislature of a State both, enact laws with respect to a matter in List II. As regards actual repugnancy, we have already found the area of repugnancy.
24. If, as found by us, the provisions of the State Act are repugnant to the provisions of the Central Act to the extent of the land covered by both the definition of 'land' in the State Act and the definition of 'Vacant land' in the Central Act, then, to that extent the provisions of the State Act are void. Sri P. A. Choudary, however, urged that the entire State Act should be struck down. Since, he said it was not possible to uphold it except by re-writing the definition of vacant land and that was not our province. Sri Choudary urged that whenever a compendious expression is used to describe the person or the thing to whom a statute is applicable and it is found that the Act is valid with respect to some of the things that are comprehended and invalid in respect of the rest, the whole of the statute must go. He relied on the decisions in Owner of S. S. Kalibia v. Wilson 11 CLR 689 at 698 and Victorian Chamber of Manufacture v. Commonwealth, 67 CLR 413 at 418-9. Sri Choudary also advanced a far-fetched argument that the doctrine of 'severability' applied to cases where legislation was found to be ultra vires but not to cases of repugnancy. There is no force in any of the submissions. Articles 251 and 254 which do not deal with ultra vires at all but with repugnancy only, expressly state that the State laws will be void to the extent of repugnancy only. The basic assumption in both the Articles is that the State laws are not ultra vires. The declaration that the State laws are void to the extent of repugnancy only shows that the doctrine of severability is perforce applicable to cases of repugnancy also.
25. The principles involved in applying the doctrine of severability have been explained by the Supreme Court in R. M. D. C. v. Union of India, : 1SCR930 . In that case, the Prize Competitions Act banned all prize competitions. Parliament was authorised, by resolutions of various State Legislatures passed under Art. 252(1) of the Constitution, to make a law with respect to Prize Competitions. The law authorised to be made by Parliament could only have been made under Entry 34 of the State List, viz, 'Betting and gambling'. The Supreme Court held that the authority of Parliament to make law with respect to prize competitions did not extend to making a law with respect to prize competitions involving skill. The question arose whether the whole of the Act had to be struck down because the Act could not apply to prize competitions involving skill. The Supreme Court said (at p. 637),
'..............it will not be questions that competitions in which success depends to a substantial extent on skill and competitions in which it does not so depend, form two distinct and separate categories. The difference between the two classes of competitions is as clear-cut as that between commercial and wagering contracts. On the facts there might be difficulty in deciding whether a given competition falls within one category or not; but when its true character is determined, it must fall either under the one or the other. The distinction between the two classes of competitions has long been recognised in the legislative practice of both the United Kingdom and this country, and the Courts have, time and again pointed out the characteristic features which differentiate them. And if we are now to ask ourselves the question would Parliament have enacted the law in question if it had known that it would fail as regards competitions involving skill, there can be no doubt, having regard to the history of the legislation, as to what our answer would be. Nor does the restriction of the impugned provisions to competitions of a gambling character affect either the texture or the colour of the Act nor do the provisions require to be touched and re-written before they could be applied to them. They will squarely apply to them on their own terms and in their true spirit, and form a code complete in themselves with reference to the subject. The conclusion is therefore inescapable that the impugned provisions, assuming that they apply by virtue of the definition in S. 2 (d) to all kinds of competitions, are severable in their application to competitions in which success does not depend to any substantial extent on skill.'
26. The test applied by the Supreme Court in the R.M.D.C. case : 1SCR930 was, would Parliament have enacted the Prize Competitions Act had it known that it would fail in regard to competitions involving skill? Applying the same test here, if we address ourselves to the question whether the State Legislature would have enacted the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act if it had known that it would fail as regards vacant land in an urban agglomeration, the unhesitating answer is, it would have. We do not, therefore think it necessary to strike down the whole of the definition of 'Land' in the Andhra Pradesh Act. In the two Australian cases on which Shri Choudary relied, the High Court of Australia took the view that the question whether the Legislature would have made the particular law, with which they were concerned, had it known that it would be valid in part only, was entirely problematical and, therefore to enforce the law in part would be to enforce a substantially different law from that actually enacted. In the case before us, we do not have the slightest hesitation in coming to the conclusion, having regard to the previous history of the legislation and the avowed object of the Act as may be gathered from its provisions, that the State Legislature would certainly have enacted the present legislation even if it had known that it would not be applicable to vacant land in an urban agglomeration.
27. The result of our discussion is that the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act does not apply to 'vacant land' in an 'urban agglomeration' to which the Urban Land (Ceiling and Regulation) Act applies.
28. Sri K. Krishna Rao and Sri Chalameshwara Rao attempted to argue that the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act was void because it offended some basic features of the Constitution. We do not think that this argument is open to the petitioner in view of the decision of the Supreme Court in Smt. Indira Nehru Gandhi v. Raj Narain, : 2SCR347 . In that case, Ray C. J. said (at p. 2332),
'The contentions of the respondent that the Amendment Acts of 1974 and 1975 are subject to basic features of basic structure or basic framework fails on two grounds. First, legislative measures are not subject to the theory of basic features or basic structure or basic framework. Second, the majority view in Kesavananda Bharati's case : AIR1973SC1461 is that the 29th Amendment which put the two statutes in the Ninth Schedule and Art. 31-B is not open to challenge on the ground of either damage to or destruction of basic features, basic structure or basic framework or on the ground of violation of fundamental rights.'
Mathew J., said (at pp. 2385-86),
'I think the inhibition to destroy or damage the basic structure by an amendment of the Constitution flows from the limitation on the power of amendment under Art. 368 read into it by the majority in Bharati's case : AIR1973SC1461 because of their assumption that there are certain fundamental features in the Constitution which its makers intended to remain there in perpetuity. But I do not find any such inhibition so far as the power of Parliament or State Legislatures to pass laws is concerned.'
Chandrachud J., observed (at p. 2472),
'The argument regarding the invalidity of the Representation of the People (Amendment) Act 58 of 1974 and of the Election laws (Amendment) Act 1975 had however, no substance. The Constitutional amendments may, on the ratio of the Fundamental Rights case, be tested on the anvil of basic structure. But apart form the principle that a case is only an authority for what it decides, it does not logically follow from the majority judgment in the Fundamental Rights Case that ordinary legislation must also answer the same test as a constitutional amendment. Ordinary laws have to answer two tests for their validity (1) The law must be within the legislative competence of the legislature as defined and specified in Chapter I, Part XI of the Constitution and (2) it must not offend against the provisions of Art. 13 (1) and (2) of the Constitution. 'Basic structure', by the majority judgment, is not a part of the fundamental rights nor indeed a provision of the Constitution. The theory of basic structure is woven out of the conspectus of the Constitution and the amending power is subjected to it because it is a constituent power. 'The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features' this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution.'
29. Sri K. Krishna Rao argued that if the contravention of the basic features of the Constitution was in respect of a Fundamental Right, then the law made by Parliament or a State Legislature could be struck down. He relied on the following observations of Mathew J., in the case of Smt. Indira Nehru Gandhi v. Raj Narain : 2SCR347 (supra) :
' There is no support from the majority in Bharathi's case : AIR1973SC1461 for the proposition advanced by the counsel that an ordinary law, if it damages or destroys basic structure should be held bad or for the proposition that a constitutional amendment putting an Act in the Ninth Schedule would make the provisions of the Act vulnerable for the reason that they damage or destroy a basic structure constituted not by the fundamental rights taken away or abridged but some other basic structure. And, in principle, I see no reason for accepting the correctness of the proposition.'
We do not think that the observations of Mathew J., lend any support to the contention of Sri Krishna Rao.
30. Sri P. Babulu Reddy, learned counsel for some of the petitioners contended that S. 4-A which was introduced by Amending Act 10 of 1977 was in truth and substance an amendment of S. 4 of the original Act and that as Amending Act 10 of 1977 was not included in the Ninth Schedule to the Constitution, Section 4 as amended by S. 4-A lost its immunity from attack. He relied on the decisions of the Supreme Court in Sajjan Singh v. State of Rajasthan, : 1SCR933 and Godavari Sugar Mills v. S. B. Kamble, : 3SCR885 . Sri Babulu Reddy's argument, it must be noted, was not that S. 4-A offended any fundamental right, but S. 4 did, and that S. 4 lost its immunity because of the addition of S. 4-A. Section 4 of the Act is as follows:
'4. Ceiling area:- (1) The ceiling area in the case of a family unit consisting of not more than five members shall be an extent of land equal to one standard holding.
(2) The ceiling area in the case of a family unit consisting of more than five members shall be an extent of land equal to one standard holding plus an additional extent of one-fifth of one standard holding for every such member in excess of five, so however that the ceiling area shall not exceed two standard holdings.
(3) The ceiling area in the case of every individual who is not a member of a family unit, and in the case of any other person shall be an extent of land equal to one standard holding.
Explanation:- In the case of a family unit, the ceiling area shall be applied to the aggregate of the lands held by all the members of the family unit.'
As pointed out by us at the very outset, it was realised at a later stage that S. 4 had unequal incidence on Hindus on the one hand and Muslims and Christians on the other hand, because the latter had no system of joint family and no one had a right by birth. In order to remove this hostile discrimination. Act 10 of 1977 was passed and S. 4-A was inserted. Section 4-A is as follows:-
'4-A. Increase of ceiling area in certain cases:- Notwithstanding anything in S. 4, where an individual or an individual who is a member of a family unit, has one or more major sons and any such major son either by himself or together with other members of the family unit of which he is a member, holds no land.........................or holds an extent of land less than the ceiling area, then, the ceiling area., in the case of the said individual or the family unit of which the said individual is a member computed in accordance with S. 4, shall be increased in respect of each such major son by an extent of land equal to the ceiling area applicable to such major son or the family unit of which he is a member or as the case may be, by the extent of land by which the land held by such major son or the family unit o which he is a member fall short of the ceiling area.'
31. If S. 4 as it stands is immune from attack because the original Act was included in the Ninth Schedule and if S. 4-A as it stands is perfectly valid, we find it difficult to accept the submission that S. 4 loses its immunity because of the effect of S. 4-A on S.4 Neither of the cases cited by Sri Babulu Reddy justify such a conclusion. In Sajjan Singh v. State of Rajasthan : 1SCR933 (supra) Gajendragadkar C. J., observed (at p. 859):
'In other words, the fact that the said Acts have been included in the Ninth Schedule with a view to make them valid, does not mean that the legislatures in question which passed the said Acts have lost their competence to repeal them or to amend them. That is one consequence of the said provision. The other inevitable consequence of the said provision is that if a legislature amends any of the provisions contained in any of the said Acts, the amended provision would not receive the protection of Art. 31-B and its validity may be liable to be examined on the merits.'
In Godavari Sugar Mills v. S. B. Kamble : 3SCR885 (supra), the Supreme Court observed (at p. 1200):
'The protection and immunity afforded by Art. 31-B is however, restricted to the provisions of the Act or Regulation as they exist on the date the Act or Regulation is included in the Ninth Schedule. The inclusion of the Act and Regulation would protect not only the principal Act or Regulation which is included in the Ninth Schedule but also the amendments which have been made therein till the date of its inclusion in the ninth Schedule, even though the constitutional amendment by which the Act or Regulation is included in the Ninth Schedule refers only to the principal Act and Regulation and not to the amendments thereof. The protection or immunity enjoyed by the Act or Regulation, including the amendments thereof till the date of its inclusion in the Ninth Schedule would not, however, extend to the amendments made in the Act or Regulation after the date of its inclusion in the Ninth Schedule.'
32. We do not think that wither of these cases is an authority for the general proposition that even if the amending provision is free form vice, by reason of the amendment, the immunity afforded by the inclusion in the Ninth Schedule and enjoyed by the original provision is lost. Further, s. 4-A is an independent provision, in the nature of an exception to S. 4. If the exception engrafted later is not immune from attack, we do not see how it follows that the main provision also is not immune from attack despite its inclusion in the Ninth Schedule.
33. Even if it is to be held that the immunity given by inclusion in the Ninth Schedule is lost, the petitioners have yet to get over the hurdle of the protection afforded by Art. 31-A of the Constitution. Sri Babulu Reddy argued that the creation of an artificial concept of a family unit enabled the acquisition of land without payment of full market value and that was contrary to the fundamental right guaranteed by the second proviso to Art. 31(2) of the Constitution. He relied on the following observations of Bhagwati J., in D. G. Mahajan v. State of Maharashtra, : 2SCR790 :
'But for the second proviso, even if a law authorising acquisition of land within the ceiling limit did not provide for payment of compensation, it would be protected from invalidation under Art. 31-A. That was not a result which the Parliament favoured. Parliament was anxious to protect the interest of the small holder, the common man who holds land within the ceiling limit and therefore enacted the second proviso requiring that a law which permits acquisition of land within the ceiling limit must provide for compensation at a rate not less than the market value. The second proviso in fact restores the right of property with added vigour in case of small holdings of land. It goes much further than Art. 31, cl. (2) and provides a larger protection, in that, cl. (2) of Article 31 merely requires that a law authorising acquisition should fix an amount to be paid for the acquisition or specify the principles in accordance with which the amount may be determined and the manner in which it may be given - and this may be very much less than the market value - while the second proviso insists that at the least, full market value must be paid for the acquisition. Thus, their can be no doubt that the second proviso confers a right - and this right higher than the one under cl. (2) of Art. 31 - on a person in respect of such portion of land under his personal cultivation as is within the ceiling limit applicable to him and it the Act, by creating an artificial concept of a family unit and fixing ceiling on holding of agricultural land by such family unit, enables land within the ceiling limit to be acquired without payment of full market value, it would be taking away or abridging the right conferred by the second proviso.'
In the very case Bhagwati J. considered whether the artificial concept of 'family unit' in the Maharashtra Agricultural Lands (Ceilings on Holdings) Act and the Punjab Land Reforms Act similar to the concept of a 'family unit' under the Andhra Pradesh Act, violated the second proviso to Art. 31-A(1) of the Constitution. In paras. 12 and 18 of the judgment (as reported in the All India Reporter) the learned Judge, after a full discussion held that there was no contravention of the right given by the second proviso to Art. 31-A(1). We are bound by what has been said. We do not propose to embark into a lengthy discussion of the question as we are of the view that the immunity granted to S. 4 of the Act by its inclusion in the Ninth Schedule has not been taken away by the amendment.
34. Sri D. M. Deshmukh contended that S. 4-A was ultra vires as it offended Art. 15(1) of the Constitution by discriminating on the ground of sex. The contention has no substance. What S. 4-A does is to enhance the ceiling limit in the case of individual having major sons. The individual with which S. 4-A concerned is not discriminated against in any manner on the ground of sex. Article 15 is not attracted at all.
35. Sri M. R. K. Choudary who appeared in some of the petitions argued that the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act was incapable of being applied to the Scheduled areas as land in Scheduled areas had remained unsurveyed and unsettled till now and, therefore, it could not be brought within any of the classifications made in the First Schedule of the Act. We are not impressed with this argument. Explanation Ii in the Second Schedule makes provision for the cases of lands for which no Taram or Bhaganna is recorded in the revenue and the Settlement records of the Government. It provides that in respect of any land for which no Taram or Bhaganna is recorded in the Government records,the Taram or Bhaganna specified for similar land in the vicinity shall be the Taram or Bhaganna for the land. The further enquiry whether their is any such similar land in the vicinity is not an enquiry into which we can embark in an application under Art. 226 of the Constitution.
36. It was next argued by Sri Babulu Reddy, Sri Bhaskara Rao, Sri Parvatga Rao and other counsel that there was no properly constituted Tribunal in the State and that the Additional Revenue Divisional Officers who were discharging the functions of Tribunals had no legal authority to do so. The argument of the learned counsel was that S. 6 contemplated the constitution of a Tribunal consisting of a plurality of members and an Additional Revenue Divisional Officer could never be a Tribunal for the purposes of the Act. It is true that S. 6 empowers the Government, by notification to constitute Tribunals consisting of not more than three members, one of whom is required to possess certain qualifications and is to be the Chairman of the Tribunal. Sub-sec. (4) provides that the quorum to constitute a meeting of the Tribunal shall be such as may be prescribed. While S. 6 enables the Government by notification, to constitute a Tribunal, S. 3 (u) defines a Tribunal in wider terms. It says:
' 'Tribunal' means a Tribunal constituted under S. 6; and where no such Tribunal is in existence, the Revenue Divisional Officer concerned.'
The learned counsel argued that the power given to the government to constitute a Tribunal was a power coupled with a duty and that it was not open to the Government not to constitute a Tribunal under S. 6 by taking shelter under S. 3 (u). The argument was that a Revenue Divisional Officer could not be a Tribunal at the very inception; he would become a Tribunal only if a Tribunal originally constituted under S. 6, later ceased to exist for some reason. We see no reason to limit the applicability of the definition in that manner. Section 3 (u) plainly means that if a Tribunal constituted under S. 6 is not in existence, for whatever reason, whether because the Government has never exercised its power under S. 6 or because the Tribunal though constituted has ceased to exist, the Revenue Divisional Officer concerned is the Tribunal. 'Revenue Divisional Officer' has also been defined by S. 3 (q) as follows:-
' 'Revenue Divisional Officer' means the Revenue Divisional Officer within whose jurisdiction the land is situated and includes any officer of the Revenue Department not below the rank of a Deputy Collector empowered by the Government to exercise the powers and perform the functions of the Revenue Divisional Officer under this Act.'
Now, in exercise of the powers under S. 3 (q) of the Act, Additional Revenue Divisional Officers have been appointed to 'exercise the powers and perform the functions of the Revenue Divisional Officers under the Act within their respective jurisdictions.' The learned counsel submitted that this appointment might be good enough to enable Additional Revenue Divisional Officers to perform the various functions which Revenue Divisional Officers as such were required to perform under the Act, but that would not enable them to perform the functions of a Tribunal which 'the Revenue Divisional Officers concerned' alone were required to perform. We are unable to accept this submission. We see no reason for not reading the definition of Revenue Divisional Officer in S. 3 (q) into the definition of Tribunal in S. 3 (u). If Section 3 (q) is read into S. 3 (u) without doubt, Additional Revenue Divisional Officers are Tribunals in the absence of Tribunals constituted under S. 6 of the Act.
37. Another submission of the learned counsel was that the creation for Tribunals consisting of Revenue Officers subordinate in all respects to the board of Revenue and the State Government was destructive of the very principle of separation of powers and was, therefore, void. It was argued that substantial questions of title and intricate questions of law would have to be decided by the Tribunals and that was essentially a matter for the Civil Courts and not for Revenue Officers. It is true that the Constitution does recognise a division of the three main functions of the Government, the Legislative, the Executive and the Judicial. But no statute made by Parliament or a State Legislature can be struck down unless the limitations imposed by some specific provision of the Constitution on the exercise of the power of Parliament or the Legislature are exceeded. As pointed out by Mathew J., in Smt.Indira Nehru Gandhi v. Raj narain : 2SCR347 (supra), a law can not be declared invlalid for the reason that it goes against the vague concepts of democracy; justice, political,economic and social; liberty o thought, belief and expression; or equality of status and opportunity, or some invisible radiation form them. It was not suggested by the learned counsel that any specific provision of the constitution was contravened by the creation of Tribunals. We are therefore, unable to hold that the creation of Tribunals consisting of Revenue Officials is illegal.
38. Another general argument which was advanced by M. R. K. Choudary was that none of the legislative lists contained any provision authorising either parliament or the Legislature of a State to create a Tribunal. It was, therefore, submitted that the State Legislature acted beyond its competence in creating Tribunals other than Civil Courts. We do not think that there was any substance in this submission. It is true that the legislative lists do not contain any express reference to Tribunals. But Tribunals exercising judicial power, other than Courts, were there long before the Constitution and the existence of such Tribunals was expressly recognised both by Arts. 136 and 227 of the Constitution. As has been pointed out by the Supreme Court in Associated Cement Co. Ltd. V. P. N. Sharma, : (1965)ILLJ433SC and Smt. Indira Nehru Gandhi v. Raj Narain, : 2SCR347 (supra) , judicial functions and judicial powers are the essential attributes of a sovereign State. The power to create Tribunals to discharge some of the judicial functions of a sovereign State is implicit in every one of the items enumerated in the various legislative lists. For example, Item 17 of List is 'citizenship, naturalisation and aliens'. Implicit in this legislative item is the power to create Tribunals for determining questions of citizenship, naturalisation, etc. Again, Item 61 is 'industrial disputes concerning Union employees'. Implcit in this item is power to create Tribunals to settle industrial disputes and so on. We are of the view that the Legislative powers to create Tribunals to decide disputes arising out of legislation with respect to Item 18 in List II is implicit in Item 18 itself.
39. Yet another argument, concerning the creation of the Appellate Tribunal under S. 20 of the Act was advanced before us. It appears that in some cases coming before one of the Appellate Tribunals the Additional District Judge who was the Chairman of the Tribunal purported to decide the appeals alone. It was contended that this was illegal. Reference was made to S. 20 (2) which provides that each Appellate Tribunal shall consist of not more than three members, one of whom shall be the persons of the rank of a District Revenue Officer or a person qualified to be a District Judge. Such person is to be the Chairman of the Tribunal. Section 20 (u) makes the provisions of S. 6, sob-secs. (3), (4) and (5) applicable to Appellate Tribunals. Section 6 (4) prescribes that the quorum to constitute a meeting of the Tribunal and the procedure to be followed by it shall be such as may be prescribed. Rules have been made prescribing the procedure at the sittings of the Tribunals and the Appellate Tribunals. Rule 14 is relevant and it is as follows:-
'14. Procedure at the sittings of Tribunals and Appellate Tribunals-
(1) Where a Tribunal is constituted under S. 6 -
(a) the Chairman of the Tribunal shall preside at all the meetings of the Tribunal ;
(b) the Chairman of the Tribunal shall fix the date, time and place of hearing of each case ;
(c) the quorum for every meeting of the Tribunal consisting of two or three members shall be two including the Chairman except as otherwise provided in these rules ;
(d) all decisions of the Tribunals shall be by a majority opinion of the members present and where the opinion is equally divided, the decision of the chairman shall be the decision of the Tribunal;
(e) if any member of the Tribunal other than the Chairman, is interested in any proceedings before the Tribunal, such member shall withdraw from such proceedings and if there is any doubt about the alleged interest of any member in any proceeding, the decision of the Chairman in this regard shall be the decision of the Tribunal
(f) where a meeting is adjourned for want of quorum and there is no quorum at the adjourned meeting also, the Chairman shall himself dispose of the business at the adjourned meeting and the decision of the Chairman in such case shall be deemed to the decision of the Tribunal.
(2) The provisions of sub-rule (1) shall apply in relation to an Appellate Tribunal constituted under Section 20 with the substitution of references to the Appellate Tribunal for references to the Tribunal.
The Rule shows that while the presence of the Chairman is necessary to constitute a valid meeting of the Tribunal, the presence of the other member or members is not always considered essential. If there is no quorum at two consecutive meetings of the Tribunal, the Chairman alone is empowered to dispose of the business of the Tribunal. It is seen that in case of difference of opinion also, the decision of the Chairman is to prevail. Therefore, if the Additional District Judge as Chairman of Tribunal disposed of appeals by himself in the absence of the other member, on the ground that the meeting had to be adjourned on the previous occasion for want of quorum he was acting strictly in accordance with Rule 14 and their was nothing illegal in his action. The Rule has been made pursuant to the powers given to the Government under S. 27 read with Ss. 14 and 6 of the Act. The rule is within the power given to the Government and has apparently been made in the interests of the quick disposal of the business of the Tribunals and the speedy implementation of the Act. The rule and the disposal of the business by the Chairman are perfectly valid.
40. We, therefore, declare that the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 are inapplicable to 'vacant land' in 'urban agglomerations' within the meaning of those expressions as defined in the Urban Land (Ceiling and Regulation) Act, 1976. In all other respects the Writ Petitions fail and are dismissed. There will be no order as to costs.
41. Messrs. P. Babulu Reddy, P. A. Choudary and K. Krishna Rao on behalf of the petitioners in this batch of writ petitions made an oral application for leave to appeal to the Supreme Court invoking Arts. 132 and 133 of the Constitution. We are unable to certify that the cases involve either a substantial question of law as to the interpretation of the Constitution or involve a substantial question of law of general importance, which in our opinion needs to be decided by the Supreme Court. The oral application is therefore rejected.
42. The learned counsel also asked for an interim direction, namely, that the respondents shall not dispossess the petitioner from the lands which they have to surrender as surplus lands at least for a period of four weeks. We are unable to accede to this request. Their prayer in this regard is therefore rejected.
43. Order accordingly.