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Kamikacherla Rangaiah and ors. Vs. Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 2110 of 1979
Judge
Reported inAIR1980AP165
ActsLand Acquisition Act, 1894 - Sections 23(1); Nagarjunasagar Project (Acquisition of Land) Act, 1956 - Sections 4(1); Constitution of India - Articles 14, 31-A and 226; Code of Civil Procedure (CPC), 1908 - Sections 11
AppellantKamikacherla Rangaiah and ors.
RespondentGovernment of Andhra Pradesh and ors.
Appellant AdvocateC. Apparao, Adv.
Respondent AdvocateAdv. General and ;Govt. Pleader
Excerpt:
.....or any other writ to quash notification acquiring land of certain extent under section 4 (1) of land acquisition act as amended by nagarjunasagar project - petitioners were brothers and were cultivating their lands personally - lands were owned by them accordingly within ceiling limit prescribed under provisions of ceiling on agricultural holdings act - nagarjunasagar act provided for acquisition of land for any purpose connected with nagarjunasagar project - when land acquired for nagarjunasagar project compensation paid is not always market value of land that was present on date of publication of notification but it is either market value together with value of improvements after or before the date of publication of notification - petitioners contended that land acquisition act as..........no. 765 in the village of peddagopathi, khammam taluq khammam district, under s. 4(1) of the land acquisition act as amended by the nagarjunasagar project (acquisition of land) act (act xxxii of 1956) (hereinafter referred to as 'nagarjunasagar act'). the petitioners' case is that these lands belonged to their family but were partitioned between the members of the family. the petitioners are personally cultivating the lands. the lands held by each of the petitioners along with other lands owned by them are within the ceiling limit prescribed under the provisions of the ceiling on agricultural holdings act (act 1 of 1973). the nagarjunasagar act provided for acquisition of land for any purpose connected with the narajunasagar project. the acquisition is to be made in accordance with.....
Judgment:

Alladi Kuppuswami, J.

1. The petitioners are brothers. They have filed this writ petition praying for the issue of a Writ of Certiorari or any other appropriate writ, to quash the notification D/- 5-12-1977 acquiring a land of an extent of Ac. 11-20 cents in Survey No. 765 in the village of Peddagopathi, Khammam Taluq Khammam District, under S. 4(1) of the Land Acquisition Act as amended by the Nagarjunasagar Project (Acquisition of Land) Act (Act XXXII of 1956) (hereinafter referred to as 'Nagarjunasagar Act'). The petitioners' case is that these lands belonged to their family but were partitioned between the members of the family. The petitioners are personally cultivating the lands. The lands held by each of the petitioners along with other lands owned by them are within the ceiling limit prescribed under the provisions of the Ceiling on Agricultural Holdings Act (Act 1 of 1973). The Nagarjunasagar Act provided for acquisition of land for any purpose connected with the Narajunasagar Project. The acquisition is to be made in accordance with the provisions of the Land Acquisition Act subject to certain modifications. One of the modifications made to the Land Acquisition Act is the substitution of the following clause for Section 23(1) of the Land Acquisition Act: -

'The market value of the land on the 1st July 1953 and the value of any improvements to the land effected after that date and before the date of the publication of the notification under sub-s. (1) of S. 4 or the market value of the land on the date of the publication of the said notification, which ever is less'.

2. Thus, whenever land is acquired for the Nagarjunasagar Project under the Nagarjunasagar project Act, the compensation paid is not always the market value of the land on the date of the publication of the notification as in the case of the Land Acquisition Act, but is either the market value on 1-7-1953 together with the value of the improvements to the land effected after that date and before the date of the publication of the notification or the market value of the land at the date of the publication of the notification whichever is less. The case of the petitioners is that the provision infringes the fundamental right guaranteed to the petitioners under the second proviso to Art. 31-A of the Constitution which is to the following effect:

'Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation it shall not be lawful for the time being in force or any building or structure thereon or appurtenant thereto, unless the law relating to acquisition of such land, building or structure provides for payment of compensation at a rate which shall not be less than the market value thereof'.

It is contended on behalf of the petitioners that as the land sought to be acquired is within the ceiling limit applicable to them and as it is under their personal cultivation, S. 23(1) of the land Acquisition Act as amended by the Nagarjunasagar Act which provides for compensation at the market value of the land as on 1-7-1953 and the value of the improvements, which in the present case is less than the market value of the land on the date of the notification infringes their rights under the second proviso to Art. 31-A and is therefore ultra vires and as a consequence the notification acquiring the land is illegal.

3. In the counter affidavit filed by the Special Deputy Collector it is admitted that the petitioners have shares in the lands as per the sub division record. The second petitioner is entitled to Ac. 3-26 and the third petitioner is entitled to Ac. 3-09 and one Lakshminarasiah, another brother is entitled to Ac. 4-21 and that all the lands are under their personal cultivation. It is not denied that the lands belonging to the petitioners taken along with other lands owned by them are within the ceiling limit. It is however pointed out that one of the brothers, Lakshminarasiah, who is not a party to this writ petition, filed W. P. NO. 1586/1978 questioning the notification and that writ petition was dismissed by the Court on 28-2-1979. Even in that writ petition an issue was raised regarding payment of compensation according to the rates prevailing on 1-7-1963 instead of market value on the date of the notification. As W. P. No. 1586/78 was dismissed it is contended that the present writ petition may also be dismissed.

4. The contention that as W. P. No. 1586/78 filed by Lakshminarasaiah was dismissed by this Court this writ petition has also to be dismissed has no substance. The petitioners were not parties to the previous writ petition. It is true that the petitioner therein is the brother of the petitioners in this writ petition and the subject matter of that writ petition was the same as the subject matter of this writ petition. But as the petitioners are not claiming through Lakshminarasiah they are not bound by the result of the writ petition. Further, it is not correct to say that this Court had an occasion to consider the contention raised in this writ petition that as the lands held by the petitioners are within their ceiling limit and within their personal cultivation, any law providing for acquisition of such lands without paying compensation at the market value is not valid. A perusal of the judgment of this Court shows that that contention was not raised and the writ petition was dismissed after rejecting other contentions put forth by the petitioner therein.

5. It is therefore necessary for us to deal with the validity of the impugned provision of the Land Acquisition Act as modified by the Nagarjunasagar Act and with the acquisition which is the subject matter of this writ petition.

6. Article 31-A of the Constitution was introduced by the Constitution (First Amendment) Act, 1951 with retrospective effect on 18-6-1951. It was amended at first by the Constitution (Fourth Amendment) Act, 1955 and again by the (Seventh Amendment) Act, 1964. The second proviso to Article 31-A which has been set out earlier was introduced by the Constitution (Seventh Amendment) Act. It clearly lays down that where any land is held by a person under his personal cultivation it shall not be lawful for the State to acquire any such land as is within the ceiling limit applicable to him under any law for the time being in force unless the law relating to the acquisition of such land provides for payment of compensation at a rate not less than the market value thereof. In this case it is not denied that the petitioners' lands fall within the ceiling limit and are also under their personal cultivation. It follows therefore from the clear terms of Art. 31-A that their land cannot be acquired unless the law relating to acquisition of such land provides compensation at a rate not less than the market value thereof. In this case, under S. 23(1) of the Land Acquisition Act as amended by the Nagarjunasagar Act, the compensation that has to be paid is the market value of the land as on 1-7-1953 and the value of any improvements to the land effected after that date and before the date of publication of the notification whichever is less. It is stated by the petitioners that the compensation payable to them with reference to the market value as on 1-7-1953 together with improvements is much less than the market value of the land on 5-12-1977. Any acquisition without providing for compensation at the market value on the date of the publication of the notification would therefore be illegal.

7. In D. G. Mahajan v. State. Of Maharashtra. : [1977]2SCR790 it was observed by the Supreme Court that Art. 31-A carves out an exception to the applicability of Articles 31, 14 and 19 and immunises certain categories of agrarian reform legislation from attack on the ground that they violate any of these three articles. Then follows the second proviso which says that even where a law falls within Art. 31-A it would not qualify for immunity if it seeks to acquire any portion of the land held by a person under his personal cultivation which is within the ceiling limit applicable to him under any law for the time being in force and such a law in order to be valid would have to provide for payment of compensation at a rate which shall not be less than the market value of the land sought to be acquired. This provision is also couched in negative language like cls. (1) and (2) of Art. 31 and it imposes a fetter on the exercise of the legislative power of the State by providing that the State shall not be entitled to make a law authorising acquisition of land held by a person under his personal cultivation within the ceiling limit applicable to him, unless the law provides for payment of compensation at a rate not less than the market value. This limitation on the legislative power of the State is the measure of the fundamental right conferred on the owner of the land. It is by imposing limitation on the exercise of legislative power that protection is given to the owner in respect of the land held by him under his personal cultivation within the ceiling limit. Restriction on legislative competence and conferment of right on the holder of land within the ceiling limit are complementary to each other. They are merely two different facets of the same provision. What is limitation of legislative power from the point of view of the State is conferment of right from the point of view of the holder of land within the ceiling limit. The former secures the latter. The second proviso in effect guarantees protection to the holder against acquisition of that portion of his land which is within the ceiling limit except on payment of the market value of right of property on a person holding the land under his personal cultivation. In another portion of the judgment it is observed:

'A great right is created in favour of owners to get compensation not less than the market value if lands within the ceiling limit and in personal cultivation are acquired by the State. That is a fundamental right and is a creature of the second proviso to is a creature of the second proviso to Art. 31-A(1). An independent provision may occasionally incarnate as a humble proviso'.

8. It was however sought to be argued by the learned Advocate General that the second proviso which was introduced by the Constitution (7th Amendment) Act and which came into effect on 20-6-1964 cannot affect the Nagarjunasagar Act of 1956. He drew our attention in this connection to the fact that both the Constitution (First Amendment) Act which introduced Art. 31-A and the Constitution (Fourth Amendment) Act which imposes certain amendment to Art. 31-A expressly provided that they will have retrospective effect; whereas no such provision was made by the Constitution (Seventh Amendment) Act. We are unable to accept that contention of the learned Advocate General. As has been held by the Supreme Court the second proviso introduced by the Constitution (First Amendment) Act creates a fundamental right in favour of persons who own lands within the ceiling limit and are cultivating them personally. The Constitution categorically states that such lands cannot be acquired except on payment of the market value on the date of the notification. Any law providing for payment of market value of less than that amount or any acquisition made under such law would infringe the fundamental right guaranteed to the owners of the land under Art. 31-A. Therefore, there can be no doubt that a law which infringes a fundamental right even though passed before the amendment of the Constitution under which that fundamental right is conferred. Would thereafter have no effect. It is true that the Constitution (Seventh Amendment) Act is not retrospective. It cannot therefore affect any acquisition made prior to the date when it came into force, that is, prior to 20-61964. But any acquisition made subsequent to that date must conform to the requirements of Art. 31-A as amended. If it does not, it would infringe the fundamental right guaranteed to the owner of the land under Art. 31-A second proviso and would be void. We have therefore no hesitation in holding that S. 23(1) of the Land Acquisition Act as amended by the Nagarjunasagar Act is ultra vires Art. 31-A in so far as it applies to acquisition of lands made after 20-6-1964 within the ceiling limit and under personal cultivation of a person.

9. The learned Advocate General relied upon the decision in Mahendra Lal v. State of U. P., : AIR1963SC1019 , in which it was held that the constitutionality of a post Constitution legislation must be judged on the basis of the Constitution as it was on the date the legislation was passed and not as it stood on the date of the writ petition challenging the validity of such legislation. In that case the Supreme Court had to consider the validity of the U. P. Land Tenures (Regulation of Transfers) Act (15of 1952) which was challenged as unconstitutional as it did not comply with Art. 31(2) of the Constitution as it stood at the time when the Act was passed. By the date of the writ petition the Constitution (Fourth Amendment) Act was passed. The Supreme Court came to the conclusion that as the Act had not provided for compensation as required by Art. 31(2) of the Constitution as it stood in 1952 it was unconstitutional. It was however contended before the Supreme Court that Art. 31(2) had been subsequently amended by the Constitution (Fourth Amendment) Act and the validity of the Act must be judged with reference to the Constitution as amended. The Supreme Court pointed out that if the said contention was accepted, if the writ petition was filed before the amendment of the Constitution as it stood on the date when it was enacted and a contention was raised that it was valid if tested by the Constitution as it stood after the amendment. The position in the present case is the converse of the case before the Supreme Court. The Act in question was valid according to the Constitution when it was passed, but later on by reason of the Seventh Amendment the Act became unconstitutional in so far as it related to acquisition of land within the ceiling limit and under personal cultivation. We are unable to see how the decision in Mahendra lal v. State of U. P. (supra), can have any application to such a case. In G. S. Chooramani v. State of U. P., : AIR1969All43 , it was held that a law contravening the second proviso to Art. 31-A would be void. It was held that Parliament gave a substantive guarantee and conferred a fresh fundamental right by the second proviso and if an Act violates the second proviso, it would be unconstitutional then and there. The Allahabad High Court which had to consider the validity of the U. P. Thekedari Abolition Act (I of 1959), held that after 20th June 1964, when the second proviso to Art. 31-A, came into force, the Act became void and inoperative as it offended the terms of the second proviso and the State Government had no power to determine the leases after 20th June 1964 under that Act.

10. For all these reasons we are of the view that on and after 20-6-1964 when the second proviso to Art. 31-A came into force the amendment to S. 23(1) of the Land Acquisition Act as made by the Nagarjunasagar Project (Acquisition of land) Act would be ultra vires Art. 31-A in so far as it relates to acquisition of land of a person within his ceiling limit and under the personal cultivation.

A further contention is raised that Sec. 23(1) as amended violates Art. 14 of the Constitution as the effect of such a provision is that different rates of compensation are provided according as the acquisition is for a purpose connected with Nagarjunasagar Project, or for any other public purpose. If the acquisition is for the project purpose, the compensation is payable only at the market value as on 1-7-1953 together with improvements; whereas if it is for any other public purpose, the market value is computed as on the date of the publication of the notification. There is no rational basis for making a discrimination between owners of the land, based on the purpose for which the land is acquired. In support of this contention reliance is placed upon a decision of the Supreme Court in Nagpur Improvement Trust v. Vithalrao, AIR 1973 SC 689. The Supreme Court observed that the State may make a reasonable classification for the purpose of legislation. The classification however must satisfy two tests, namely, that it must be founded on intelligible differentia and the differentia must have a rational relation with the object sought to be achieved by the legislation in question. The supreme Court then proceeded to observe as follows:

'Can classification be made on the basis of the public purpose for the purpose for the purpose of compensation for which land is acquired? In other words can the legislature lay down different principles of compensation for lands acquired say for a hospital or a school or a Government building? Can the legislature say for a hospital or a school or a Government building? Can the legislature say that for a hospital land will be acquired at 50% of the market value, for a school at 60% of the value and for a Government building at 70% of the market value? All three objects are public purposes and as far as owner is concerned it does not matter to him whether it is one public purpose or the other. Article 14 confers an individual right and in order to justify classification there should be something which justifies a different treatment to this individual right. It seems to us that ordinarily a classification based on the public purpose is not permissible under Art. 14 for the purpose of determining compensation'.

Based on these observations it was contended that it is not permissible to provide different compensation according to the purpose of acquisition, either for Nagarjunasagar Project or any other purpose. This contention would have considerable force if the classification was made merely on the basis of the purposes of the acquisition. But as has been pointed out by a Division Bench of this Court in V. Lakshminarayana v. State. : AIR1972AP19 , where the identical contention, was raised in respect of the same enactment, the classification is not made on the basis of the purpose of acquisition. The announcement of the execution of the Nagarjunasagar Project by the Planing Commission was made even by the end of 1952. Thereafter, speculative purchases of land in the project area became very rampant, steeply pushing up the value of such lands to an enormous extent. It was therefore decided by the legislature that the acquisition for the Nagarjunasagar Project should not be hurdened with the high prices which were the result of speculative dealings. In these circumstances it was logical and reasonable that the acquisition for the project was classified separately. If that were not done, the compensation would have to be paid on the basis of artificially pushed up prices. The Act itself makes this position clear. The preamble states that it became necessary in assessing the compensation to be paid for the land acquired to disregard speculative purchases made in the expectation of the execution of the said project. It is therefore clear that the classification was made not on the basis of the purpose of acquisition but on the ground that in this particular case there had been speculative purchases and the prices were artificially boosted, with the result the market value on the date of acquisition would not really reflect the correct market value. In these circumstances this Court held in V. Lakshminarayana v. State (supra) that the impugned provision did not violate Art. 14 of the Constitution. We see no reason to differ from the decision. It is true that the decision in Nagpur Improvement Trust v. Vithal Rao (supra), relied on by the petitioners was rendered after the decision of this Court in V. Lakshminarayana v. State (supra). But as the decision of this Court did not justify the classification on the footing that the purpose of acquisition was different, the correctness of that decision remains unaffected by the decision of the Supreme Court in Nagpur Improvement Trust v. Vithal Rao (supra). The contention founded on Art, 14 is therefore rejected.

11. In the writ petition it is prayed that the Land Acquisition Act as amended by the Nagarjunasagar Project (Acquisition of Land) Act, 1956 (Act XXXII of 1956) is unconstitutional and that the land acqisition proceedings relating to Survey No. 765 measuring Ac. 11-20 in Peddagopathi village may be quashed. As has been noticed earlier it is only the amendment to S. 23(1) first clause of the Land Acquisition Act made by the Nagarjunasagar Project (Acquisition of Land) Act (XXXII of 1956) that violates the second proviso to Art. 31-A and even that only in so far as it relates to acquisition of land within the ceiling limit and is under personal cultivation. Hence it is only to this extent there will be a declaration that the provision violates Art. 31-A.

12. The effect of our decision is that the person whose land is acquired must be paid compensation at the full market value as on the date of the publication of the notification. The notification itself cannot be held to be invalid or ultra vires. The notification is made under S. 4(1) of the Land Acquisition Act which was not touched by the Nagarjunasagar Act. As the acquisition was made for a public purpose, the notification under S. 4(1) cannot be attacked as invalid. The prayer to quash the notification cannot therefore be attacked as invalid. The prayer to quash the notification cannot therefore be granted. There will however be a direction that further proceedings relating to the acquisition will be made so far as the petitioners' lands are concerned without reference to the amendment made by the Nagar Junasagar Act, having regard only to the provisions of the Land Acquisition Act. It is also made clear that as the previous writ petition filed by Lakshminarasaiah is concerned has already been dismissed this judgment will not in any way affect the proceedings relating to the land belonging to him.

13. The Writ Petition is allowed to the extent indicated above. There will be no order as to costs. Advocate's fee Rs. 100/-.

14. Petition partly allowed.


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