P. Ramakrishnan, J.
1. These two writ petitions raise common questions for decision and therefore they were heard together. The three petitioners in Writ Petition No. 830 of 1964 are the owners of the Inam Estate of Umathanadu Udayanadu situated in Pattukottai Taluk in Tanjore District. The said estate was taken over by the State of Madras on 9th July, 1952, under the provisions of the Madras Estates Abolition and Conversion into Ryotwari Act XXVI of 1948, which will be referred to hereinafter as the Act. The first respondent is the Board of Revenue, Madras through the Commissioner, Settlement of Estates, Madras and the and respondent is the Director of Settlements, Board of Revenue. The petitioners in Writ Petition No. 1804 of 1964 are the owners of the Inam Estate of Kuruvikarambai in Pattukottai Taluk, Tanjore District and it was taken over by the State of Madras on and from 14th May, 1953 under the provisions of the Act. The two respondents in this writ petition are the same as the respondents in Writ Petition No. 830 of 1964.
2. The attack made in these writ petitions is directed against the method adopted by the respondents for fixing the compensation payable to the land holders on the taking over of the estates. For inam estates like the ones we have in these writ petitions, Section 31 of the Act gives the definition of a basic annual sum made up of the aggregate of the whole of the gross annual ryotwari demand as ascertained under Section 32 less certain deductions specified in Section 32. To this must be added the net annual income from lanka lands, but with this we are not concerned. Another quantity to be added is the net annual miscellaneous revenue derived from other sources in the estate. The actual compensation is to be worked out under Section 37 as multiples of the basic annual sums which vary according to the actual basic annual sum, the rule being, the greater the basic annual sum the lesser the multiplying factor. The most important point therefore is the method of fixing the annual ryotwari demand which forms the main ingredient of the basic annual sum. Section 32 of the Act says that the gross annual ryotwari demand shall be the total of the ryotwari assessments imposed in pursuance of a settlement effected under Section 22 of the Act on the lands occupied by any person other than the landholder on the notified date.
3. It is urged by the learned Counsel for the petitioners that the basis for the compensation thus provided under the Act is the basic annual sum which again depends upon the annual ryotwari demand as arrived at under a settlement to be effected under the provisions of Section 22 of the Act. The principles for effecting the settlement are the same as the principles adopted in making the settlement in ryotwari area. But the broad question remains that a landholder who had been collecting from the ryots assessments at figures fixed by him by agreement with the ryots for a long number of years may have to forego a substantial portion of the benefits of such assessment, in cases where the ryotwari settlement makes a substantial reduction in the amount of rent payable by the ryotwari holders under the settlement and the compensation is fixed on the basis of this settlement. But it was not open to the landholder to attack a law like the present Act on the plea of violation of the constitutional protection in Article 31(2) of the Constitution, because Article 31(6) of the Constitution gave immunity to such laws from attack on such a plea. Secondly, Article 31-B of the Constitution read with the Ninth Schedule of the Constitution, gave a further immunity, because the Estates (Abolition and Conversion into Ryotwari) Act, was one of the Acts included in the Ninth Schedule. However, after the enactment of the Act in 1948, the Legislature, seems to have been made aware that there may be instances where in the course of the fixing of the ryotwari demand in the case of irrigated wet lands, by a settlement under Section 22 of the Act, account might not have been taken of the fact that at the time of the settlement, the ryots might have been getting the benefit of supply of water from irrigation sources constructed or maintained by and on behalf of the Government. In the case of water supply from such sources, before the taking over of the estate, the ryots might have been paying water cess to the Government for water so taken, separately from the assessments that they were paying to the landholder but in the settlement, the water cess might have become merged in the wet assessment. Apparently, the Legislature felt that the basic annual sum calculated on the ryotwari demand settled under Section 22 of the Act, would not take into account the benefit which the Government had supplied to the ryots with the help of the water from Government irrigation sources and gave to the landholder something more by way of compensation than what he would have been entitled to. To meet that situation, an. Explanation was added to Section 32 of the Act by an amendment of the Act, Madras Act XLIV of 1956 which was in the following terms:
For the purposes of Sub-section (1), the expression 'ryotwari assessment,' in respect of any land which has been registered as wet at the settlement referred to in that sub-section under an irrigation work belonging to, constructed or maintained by or on behalf of the Government and which was liable to pay any water-cess under any law governing the levy of such cess in the State of Madras for irrigation from the said work before the said settlement, shall be taken to be the appropriate assessment determined in the prescribed manner which the land would bear in the absence of facilities for irrigation from the said work.
It has to be noted that this Explanation does not lay down the principles which shall govern the fixation of appropriate assessment, but leaves it to be determined by the Settlement Officer under the provisions of the Rules. This takes us to the Rules framed under the Estates (Abolition and Conversion into Ryotwari) Act, 1948, by a notification duly published. Rules 3 and 4 provide for fixing the dry or manavari rates of assessment as the basis of the appropriate assessment where the land was not getting the benefit of a former irrigation work, but the appropriate assessment will be the wet assessment, if the land was cultivated with wet crops in normal years with water taken from a former irrigation work, and which became liable to pay water cess to the Government after facilities for irrigation from a Government irrigation work became available. But curiously this notification contains no provision for giving a notice to the landholder before the appropriate assessment is determined, even though the landholder is the only person who will be interested in the proper determination of the appropriate assessment, because the appropriate assessment has relevancy only for determining the compensation payable to the landholder. The ryots cultivating the land will have the terms of their rent determined under the settlement under Section 22 of the Act, and the appropriate assessment under the Explanation to Section 32 will not be the assessment which they will have to pay to the Government after the taking over of the estate.
4. Sri Vedantachari appearing for the petitioners, besides urging the main ground that before the authorities fixed the appropriate assessment in the case of the petitioners, they were not given individual notices so that the appropriate assessment was really determined behind their back, raised certain other legal points on the basis of which he attacked the validity of the Explanation itself. The arguments were briefly as follows.
5. The Act as it was enacted in 1948 was a self-contained code providing for the award of the compensation calculated in the manner laid down therein. At that stage the appropriateness of the compensation could not be attacked because as already mentioned, the provisions of Articles 31(6) and 31-B of the Constitution gave the necessary immunity against Section 31(2), but the amending Act of 1956 has to be viewed independently for the purpose of testing the validity of its provisions in the context of Article 31(2) of the Constitution. The immunity given to the principal Act, for the purpose cannot be availed of, for the amending Act. The authority for this argument is derived from the decision of the Supreme Court in Sri Ram Narain v. State of Bombay : AIR1959SC459 .
The impugned Act which was passed by the Slate Legislature in 1956 was a further measure of agrarian reforms carrying forward the intentions which had their roots in the 1948 Act and the impugned Act referred to above it could be legitimately urged that if the cognate provisions of the 1948 Act were immune from attack in regard to their constitutionality on a parity of reasoning similar provisions contained in the impugned Act, though they made further strides in the achievement of the objective of a socialistic pattern of society would be similarly saved. The position, however, could not obtain because whether amendments were made by the impugned Act in the 1948 Act were future laws within the meaning of Article 13(2) of the Constitution and required to be tested on the self same touchstone. They would not be in terms saved by Article 31-B and would have to be scrutinised on their own merits before the Courts came to the conclusion that they were enacted within the constitutional limitations. The very terms of Article 31-B envisaged that any competent Legislature would have the power to repeal or amend the Acts and the Regulations specified in the 9th Schedule thereof and if any such amendment was ever made the vires of that would have to be tested. Vide Abdul Rahiman v. Vithal Arjun : AIR1958Bom94 '.
Secondly, the learned Counsel for the petitioners urged that once the immunity under Articles 32(6) and 31-B of the Constitution is taken away, the amending Act standing by itself must stand the scrutiny of affording a just equivalent by way of compensation to the expropriated person, and only in that event, will it be valid in the light of Article 31(2) of the Constitution. The provision for a reasonable equivalent by way of compensation, would be a justiciable issue (Vide the decision of the Supreme Court in Vajravelu v. Special Deputy Collector : 1SCR614 and the recent decision in Civil Appeal No. 1222 of 1966 of the Supreme Court. It is urged that for the aforesaid reasons, it will be open to the landholders to attack the basis of the compensation fixed with reference to the appropriate assessment in the 1956 amendment. They can urge that the appropriate assessment fixed in the light of the principles laid down in the rules mentioned above, afford no proper substitute to the landholder for what he had been collecting from the ryots previous to the abolition and which he lost when the estate was taken over.
6. However, in view of a further submission of the learned Counsel for the petitioners, that they are principally aggrieved at the present moment, because the order fixing the appropriate assessment by the Settlement Officer, had been passed without giving any kind of notice to them even though they are the persons who would be chiefly affected thereby, and that for the present they would try to get the necessary relief from the Settlement Authority, if an opportunity is afforded to them by the Settlement Authority for stating their objections to the fixation of appropriate assessment, it is not necessary to give a decision on the legal point raised above. Further, the learned Counsel draws my attention to the judgment of Srinivasan, J., in an unreported decision in W.P. No. 1130 of 1961, where the learned Judge dealt with the identical points raised herein, and gave a finding substantially accepting the validity of the objections now put forward by the learned Counsel to the levy of the appropriate assessment. The following observations of Srinivasan, J., in the above judgment were referred to:
In adopting a notional figue for the purpose of the assessment, what is attempted to be done, is to determine something which was never the real income, solely for the purpose of evaluating the compensation. The present Act, Act XXVI of 1948, was governed by Section 299 of the Government of India Act, and whatever inroads it might have made upon the right to compensation, and whatever defects the parent Act might have revealed in the context of Section 299 of the Government of India Act, it was saved from being challenged in Courts of law by appropriate provisions in the Constitution. But the Explanation was introduced by Act XLIV of 1956. Such an amending piece of legislation cannot possibly be saved by the 9th Schedule to the Constitution. It is urged that the primary object of this amending piece of legislation was to reduce the compensation that would be payable to the landholder, for the appropriate ryotwari assessment represents neither the income which the landholder was getting from the lands in question nor the revenue which the Government gets. It is implicit in any legislation of this kind, where a person is deprived of his property, that he must be compensated for the income that he was actually getting. While the petitioner cannot attack the provisions of the Act as it stood before the amendment by reason of Article 31(6) of the Constitution, he is not prevented from questioning the validity of the amendment by that provision of the Constitution. The parent Act was certified by the President of India under Article 31(6), but such a certificate cannot eaure in favour of a subsequent legislation, the more so when such legislation did really depart from the provisions of Section 299 of the Government of India Act.***** I am in agreement with the contentions advanced by Mr.Vedantachari that since the estate had already vested in the State in 1951 and Act XXVI of 1943 had formulated the principles of determining the compensation payable for such acquisition, Act XLIV of 1956 could not pretend to be a law relating to acquisition. The contention that after the notification of the estate and the vesting of the estate in the State, only a debtor creditor relationship was established between the ex-landholder on the one hand and the State on the other would certainly appear to be beyond dispute. What the later law attempted to do was only to further lessen the quantum of compensation by introducing a new rule. The acquisition of the estate hiving been effected, the law having provided for the principles of payment of compensation, the subsequent Act could not possibly be regarded as one that was enacted for that purpose. In Zamindar of Ettayapuram v. State of Madras (1956) 1 M.L.J. 264, the contention was advanced by the landholder that by reason of the failure of the Government to comply with other provisions of the Act, principally those relating to the deposit of advance compensation within six months after the notified date, or the making an interim payment as provided under Section 50 of Act XLVI of 1948, the original notification vesting the estate in the Government itself became ineffective and it was not open to the Government to take possession of the estate on the strength of the original notification. This plea was repelled and it was held by a Bench of this Court that while the failure of the Government to make the payment in question might enable the landholder to demand and enforce it, the omission to make the payments would not have the effect of cancelling the notification or re-vesting the estate in the landholder. This has been cited by Mr. Vedantachari in support of the proposition that the acquisition was complete and should be governed by the principles of compensation laid down in the parent Act. It is also urged that the issue of the certificate by the President guaranteed to the landholder, on the one hand, that his compensation would be determined in accordance with the principles set down in that Act, while it equally guaranteed immunity from challenge of the provisions of the Act to the State. The impugned Explanation is, according to the learned Counsel, something which is now attempted by the State to tinker with the principles of compensation which were accepted as the necessary foundation for the issue of a certificate by the President. I am inclined to agree.
Before Srinivasan, J., in the decision above stated, the petitioners after raising the legal point mentioned above, were content for the time being to have the correctness of the application of the rules for levy of the appropriate assessment decided once again before the Settlement Officer after an opportunity is afforded to the petitioners to make representations contra. In that case also, ultimately after putting forward the legal argument, the learned Counsel pressed for a re-investigation of the facts which led to the levy of appropriate assessment. It was not in dispute that the Settlement Authorities, before fixing the appropriate assessment had not at all made an attempt to call for objections from the landholder by personal notice to him, and determine which of the lands in the village 'were not liable to pay water cess by reason of the engagement which entitles them to the rights of free irrigation.' In the case of such lands, the learned Judge held that the determination of the appropriate assessment would not be warranted by the terms of the Explanation. Its now submitted by the learned Counsel that in the present cases also if the petitioners are afforded necessary opportunities to make the representations before the Settlement Officer and a re-investigation of the facts are made the petitioners may be able to secure a substantial portion of the relief, without going into the legal points discussed above.
7. The learned Government Pleader after reference to the records has admitted that at the time when the Settlement Officer levied the appropriate assessment, no personal notice was given to the landholders in these petitions. In view of this submission, it appears reasonable that they are given an opportunity of having a re-investigation of the facts which led to the appropriate assessment made by the Settlement Officer, after hearing their objections. For this purpose, it is necessary to quash the order fixing compensation in the cases of the petitioners in these writ petitions. In view of this, it is not necessary to dispose of these writ petitions on the basis of the legal submissions made above about the invalidity of the Explanation itself. However, it will be open to the petitioners to seek further relief on the basis of those contentions, if found necessary, after the Settlement Authority makes the necessary re-investigation of the facts in this case as directed above.
8. The Writ Petitions are therefore allowed in the light of the observations mentioned above. The orders fixing the amount of compensation passed by the respondents are quashed. The respondents will direct the Settlement Officer to give personal notices to the petitioners, and decide afresh if these are cases where the appropriate assessment has to be levied and if so on what terms. Since the matter is now being released before the Settlement Officer for fresh determination, it is not necessary to consider the further points raised in the petitions. No order as to costs.