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Anchal Bhusan Bose and ors. Vs. the State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtKolkata High Court
Decided On
Case NumberCivil Rule Nos. 2748 (W) of 1972 and 17725 (W) of 1975 and F.M.A.T. Nos. 2555-60 of 1974
Judge
Reported inAIR1976Cal436,80CWN643
ActsConstitution of India - Articles 14, 31A, 31A(2) and 31B; ;West Bengal Land Reforms (Amendment) Act, 1972 - Section 14K, 14L, 14M, 14P and 14Q(2)
AppellantAnchal Bhusan Bose and ors.
RespondentThe State of West Bengal and ors.
Appellant AdvocateBimal Kumar Datta, ;Tapan Kumar De, ;Dipankar Gupta and ;Tapan Kumar Sen Gupta, Advs.; Gouri Nath Mitter, Adv. General and ; Samar Banerjee, Adv.; S.C. Bose and ; Bhagabati Pr. Banerjee, Advs.
Respondent AdvocateGouri Nath Mitter, Adv. General, ;Dipankar Gupta, Standing Counsel, ;Paritosh K. Mukherjee, ;Suprakash Banerjee and ;Samarjit Gupta, ;Chandidas Roy Choudhury, ;Sundarananda Pal, ;Nani Coomar Chkrabart
Cases ReferredKunjkutty v. State of Kerala
Excerpt:
- sankar prasad mitra, c.j.1. this rule has been referred to a larger bench by an order of debi prasad pal, j., made on the 22nd august, 1973. the petitioner has challenged the vires of certain provisions of the west bengal land reforms (amendment) act, 1972 (west bengal act xii of 1972). the petitioner's contention is that the act has introduced provisions curtailing the ceiling of land which raiyats were allowed to retain under the west bengal estates acquisition act, 1953 and the west bengal land reforms act, 1955. the relevant provisions of the act are void and ultra vires articles 31(2), 14, 19(1)(f) and 31-a of theconstitution. the validity of the constitution (twentyfourth amendment) act, 1971 and the constitution (twentyfifth amendment) act 1971 have also been challenged in the.....
Judgment:

Sankar Prasad Mitra, C.J.

1. This Rule has been referred to a larger Bench by an order of Debi Prasad Pal, J., made on the 22nd August, 1973. The petitioner has challenged the vires of certain provisions of the West Bengal Land Reforms (Amendment) Act, 1972 (West Bengal Act XII of 1972). The petitioner's contention is that the Act has introduced provisions curtailing the ceiling of land which raiyats were allowed to retain under the West Bengal Estates Acquisition Act, 1953 and the West Bengal Land Reforms Act, 1955. The relevant provisions Of the Act are void and ultra vires Articles 31(2), 14, 19(1)(f) and 31-A of theConstitution. The validity of the Constitution (Twentyfourth Amendment) Act, 1971 and the Constitution (Twentyfifth Amendment) Act 1971 have also been challenged in the petition. These Acts, however, were considered by the Supreme Court in Keshavananda v. State of Kerala, : AIR1973SC1461 . The relevant provisions of both the Acts have been held to be valid. Various other constitutional points have also been raised.

2. The Learned Judge's attention was drawn to the fact that hundreds of rules were pending in this Court on identical points. And a decision on this application by a larger Bench would help the disposal of all these other rules. Pal, J. came to the conclusion that the questions raised were substantial questions of law as to the interpretation of the Constitution and should be decided by a Division Bench of such number of Judges as the Chief Justice might think fit. He has referred this matter under Rule 1 of Chapter 2 of the Rules of the Appellate Side. This Division Bench has been constituted pursuant to the said reference.

3. Along with this Rule we have heard several other Appeals being F. M. A. T. Nos 2550-60 of 1974 as well as C. R. 11725 (W) of 1975 which raise identical questions of law. Our decision on this application would, therefore, govern the said appeals and rule also.

4. The West Bengal Land Reforms (Amendment) Act, 1972, (West Bengal Act XII of 1972), obtained the President's assent on May 4, 1972.

4-A. By the 1972 Act the West Bengal Land Reforms Act, 1955 was amended in material aspects. The amendment with which we are concerned, is the insertion of a new chapter, namely, Chapter II-B in the Act. By this Chapter a ceiling on raiyats' holding was imposed and compensation was provided for excess land which would vest in the State. Sections 14-J or 14-Y are the relevant sections. There were other amendments also with which we are not concerned.

5. The petitioners have challenged the vires of Chapter II-B. This challenge was also made in a number of other Civil Rules which were heard by Banerjee, J. By his judgment in C. R. No. 6921 (W) of 1972 (Dayamayee Debi v. State of West Bengal) delivered on 22-3-1974. Banerjee, J., declared that Sections 14-L(no Raiyat to hold land in excess of the ceiling area), 14-M (Ceiling area), 14-P (land transferred after 7th August, 1969, to be taken into account for determining the ceiling area), 14-U (restriction on transfer of land by raiyat), 14-V (compensation), 14-W (damages for use and occupation of land), and 14-Y (limitation on future acquisition of land) of the said Act are violative of the second proviso to Article 31-A(1) of the Constitution. The judgment of Banerjee, J., is reported in (1974) 78 Cal WN 639. The State of West Bengal preferred an appeal against this judgment and against orders on several other Writ Petitions to which the said judgment was applied. All these appeals are also before us and have been heard along with this application.

6. Since the judgment of Banerjee, J., the situation has radically altered. On June 26, 1975, there was a declaration of Emergency. By subsequent notifications enforcement of rights under Articles 14, 21, 22 and 31 of the Constitution have been suspended. On the 7th September, 1974, the Constitution (Thirty-fourth Amendment) Act came into force. By this Act the West Bengal Land Reforms (Amendment) Act, 1972, has been berthed in the 9th Schedule being Item No. 81 therein. The various contentions of the parties before us, would have to be examined in the context of these new events.

7. It would be useful at this stage to indicate some of the salient features of the West Bengal Land Reforms (Amendment) Act, 1972. These salient features are as follows:--

1. Section 6 of the West Bengal Land Reforms Act, 1955, which imposed 'Limitations on transfer by a raiyat' was omitted. And Chapter II-B was inserted. Sections 14-J or 14-Y are in this new Chapter.

2. Section 14-J provides that the provisions of Chapter II-B shall have effect notwithstanding anything contrary to this Act or any other law for the time being in force.

3. Section 14-K defines, inter alia, 'family', 'orchard' and 'standard hectare'.

4. Section 14-L provides that on the commencement of this chapter no Raiyat can hold land in excess of the ceiling area.

5. Section 14-M prescribes the ceiling area in a graduated scale with 2.50 standard hectares for a person who is an adult and unmarried or who is the sole surviving member of a family. For a family of two and more but less than five the ceiling area is five standard hectares and for each member in excess of 5 an additional .50 standard hectare, the total limit being 7 standard hectares. In the case of any other raiyat the ceiling area is 7 standard hectares (A standard hectare means in relation to agricultural land, 1.00 hectare in any irrigated area and 1.40 hectares in any other area: and in relation to an orchard land equivalent to 1.40 hectares): vide Section 14K(f).

6. Section 14-N provides for determination of irrigated area.

7. Section 14-O provides for appeal from order under Section 14N.

8. Section 14P provides that land transferred after 7th August, 1969, shall be taken into account for determining the ceiling area.

9. Section 14-Q provides for ceiling areas for a co-operative society, company, co-operative fanning society, Hindu undivided family or a firm.

10. Section 14-R provides for exemption of provisions of Section 14-M for local authorities etc.

11. Section 14-S provides for vesting of land in excess of ceiling area owned by a raiyat subject to the bargadar's right of retention.

12. Section 14-T provides for furnishing of return of excess land to the Revenue Officer within the prescribed time. It also provides that the Revenue Officer shall determine on receipt of a return or on his own the extent of land which is to vest in the State under Section 14-S and take possession of such lands. The section provides further for imposition of punishment on the raiyat who fails to furnish return.

13. Section 14-U provides for prohibition of transfers or dealings of land by a raiyat after publication in the Official Gazette of the West Bengal Land Reforms (Amendment) Act, 1971.

14. Section 14-V provides for principles and manner of determination of compensation for the vesting of land in accordance with the provisions of Chapter III of the West Bengal Estates Acquisition Act, 1953.

15. Section 14-W provides for damages for use and occupation of land in excess of the ceiling area.

16. Section 14-X bars the jurisdiction of the Civil Courts over determination of any question required to be decided by the Revenue Officer or other authority under this Chapter.

17. Section 14-Y imposes limitation on future acquisitions of lands by a raiyat.

8. The arguments of the parties before us were advanced on the constitutional validity of these provisions. We now propose to set out the relevant amendments to the Constitution made from time to time to appreciate the principal contentions of the parties,

9. The Constitution (First Amendment) Act, 1951, which came into force on the 18th June, 1951, introduced Article 31-A and Article 31-B. Article 31-A was as follows:--

'31-A. Saving of laws providing for acquisition of Estates, etc. -- (1). Notwithstanding anything in the foregoing provisions of this Part, no law providing for acquisition by the State of any Estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part (that is Part III -- Fundamental Rights):

Provided that where such law is a law made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

........'

'31-B. Validation of certain Acts and Regulations. -- Without prejudice to the generality of the provisions contained in Article 31-A, none of the Acts and Regulations specified in the ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act. Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any of the provisions of this Part (that is Part III --Fundamental Rights), and notwithstanding any judgment, decree, or order of any Court or Tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.'

10. By the First Amendment 13 Acts and Regulations were placed in the 9th Schedule, The items have gradually increased by reasons of subsequent amendments and at present there are 124 items in the 9th Schedule.

11. The Constitution (Fourth Amendment) Act, passed on the 27thApril, 1955, made certain changes in Article 31-A. The changes are as follows:--

'In Article 31-A of the Constitution--(a) for Clause (1) the following clause shall be, and shall be deemed always to have been, substituted, namely:--

(i) Notwithstanding anything contained in Article 13 no law providing for-

(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or

(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or

(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or

(d) * * * * or (e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the * purpose of searching for, or winning any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence,

shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31:

Provided that where such law is a law made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

.........'

12. The difference between the first amendment and the fourth amendment is that in the first amendment Article 31-A protected laws relating to acquisition of estates only. In the fourth amendment laws relating to five other matters have also been given protection. Article 31-B remained intact.

13. Lastly, we come to the Constitution (Seventeenth Amendment) Act of 1964 which was passed on the 20th June, 1964. Section 2 of this Act provides:

'In Article 31-A of the Constitution,--

(i) in Clause (1), after the existingproviso, the following proviso shall beinserted, namely:-- Provided furtherthat whore any law makes any provisionfor 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 State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not beless than the market value thereof: ........'

14. By Section 3 of the Constitution (Seventeenth Amendment) Act, 1954. Items Nos. 21 to 64 were introduced into the ninth Schedule. The Rajasthan Tenancy Act, 1955 (Rajasthan Act III of 1955) was Item No. 55. After Item No. 64 an 'explanation' was also added. The explanation is as follows:--

'Any acquisition made under the Rajasthan Tenancy Act, 1955 (Rajasthan Act III of 1955) in contravention of the second proviso to Clause (1) of Article 31-A shall to the extent of the contravention be void.'

15. We have already stated that the West Bengal Land Reforms (Amendment) Act, 1972 (West Bengal Act XII of 1972) was introduced into the Ninth Schedule by the Constitution (Thirtyfourth Amendment) Act, 1974. This was Item No. 81 in the 9th Schedule as amended.

16. On the basis of the above constitutional provisions learned Counsel appearing for the petitioners herein or for the respondents in the appeals already referred to have advanced elaborate arguments. We propose in the first instance to summarise these arguments to bring into prominence the contentions raised by them. These are:

1. In Kesavananda Bharati v. State of Kerala, : AIR1973SC1461 , the majority of learned Judges has laid down that Parliament in the exercise of powers under Article 368 cannot alter the basic structures or features or essential elements of the Constitution. Article 31-B enables Parliament and the State Legislatures to pass Laws affecting the basic features. Article 31-B is, therefore, unconstitutional. In any event, the protection of Article 31-B is not available to Acts or Regulations which infringe upon the basic structures of the Constitution.

2. Parliament or the State Legislatures in the exercise of ordinary legislative power cannot pass any Act which is hit by the provisions of Article 13(2). A law made in contravention of Article 13(2) is void ab initio. The device of Article 31-B to inject life into such laws is unreasonable and against democratic principles and, as such, affects the basic structures of the Constitution.

3. Assuming that Article 31-B is valid, the device of Article 31-B cannot protect Acts or Regulations which contravene the mandatory prohibitions of Pact III of the Constitution. The Second proviso to Article 31-A(1) is a mandatory prohibition imposed on the State. This prohibition 'cannot be bypassed by including an Act or Regulation in the ninth Schedule. The provisions of the West Bengal Land Reforms (Amendment) Act, 1972 relating to land ceilings referred to above offend the second proviso to Article 31-A(1).

4. The concept of individual right is the very basis of a democratic way of life. In the impugned Act the ceiling area has been fixed in relation to the family instead of an individual. This provision destroys the legal identity of an individual by merging the individual in the family. The provisions, therefore, relating to the ceiling area with reference to the family, offend the basic structures of the Constitution.

5. The opening words of Article 31-B are intended to make clear that Article 31-A should not be restricted in its application by reason of anything contained in Article 31-B and are in no way calculated to restrict the application of Article 31-A. An Act included in the ninth schedule can, therefore, be tested in the light of Article 31-A.

6. The opening words of Article 31-B should be construed to mean that over and above the provisions of Article 31-A certain other provisions were being incorporated into the Constitution. In view of these opening words the provisions of Article 31-A have not been touched in the least.

7. The 'Explanation' to the ninth schedule introduced by the Constitution (Seventeenth Amendment) Act, 1964 has been introduced to illustrate the intention of the legislature that there was no attempt to exclude the operation of the second proviso to Article 31-A(1). 8. The second proviso to Article 31-A(1) was introduced by the Constitution (Seventeenth Amendment) Act on the 20th June, 1964. In the statement of Objects and Reasons it was observed as follows:--

'It is further proposed to provide that where any law makes a 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 state to 'acquire any such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure provides for payment of compensation at any rate not less than the market value thereof.'

This is a new Fundamental Right created on the 20th June, 1964, vide G. S. Chooramani v. State of U. P., : AIR1969All43 . Article 31-B was introduced by the Constitution (First Amendment) Act on the 18th June, 1951. When Article 31-B was introduced this new Fundamental Right was not there. Parliament, therefore, could not have taken into consideration something which came into force much later. The new Fundamental Right, therefore, could not be subject to the provisions of Article 31-B.

9. Assuming that the 'Explanation' to the ninth schedule does not give an indication of Parliament's mind, it is a violation of the basic feature of national integrity inasmuch as Rajasthan would be enjoying privileges not enjoyed by other States.

10. The second proviso to Article 31-A is not only a new Fundamental Right but is also one of the basic features of the Constitution. It is significant that although the Constitution was amended on numerous occasions. Parliament did not delete the opening words of Article 31-B. It is not open to the State to contend that any expression used in the Constitution is redundant.

11. By the Seventeenth amendment of the Constitution made on the 20th June, 1964, the second proviso to Article 31-A(1), as we have seen, was introduced. Reliance was placed on relevant portions of the Rajya Sabha Debates (Vol. 48, Nos. 1-8, Official Report -- 1964) on the second proviso. At page 1018 of the debate there are questions and answers which run thus:--

'Shri Bhupesh Gupta:

On a point of clarification with regard to the new proviso that you are adding under Clause (1), I would ask theLaw Minister to kindly follow it -- I want a point to be clarified so that there is no confusion. I have been informed ............. that the Swatantra Party istelling there in Andhra Pradesh that the small peasant will have no remedy to go to Court even if his land is taken away. dO I understand here that if land is acquired within the limits of the ceiling the peasant can go to the Court of law on the ground that he had not been paid adequate compensation or market value ?

Shri A. K. Sen:

Yes.

Shri Bhupesh Gupta:

Therefore, I understand that this will make it open to the peasant to go to the Court and challenge if he feels that it should be challenged, that the market value has not been paid for the land which has been acquired from him. That point should be made clear.

Shri A. K. Sen:

It is precisely so; because it limits the power of any State Legislature to acquire land within the ceiling, except on payment of market value. That means there can be no valid State Legislation without providing for payment of compensation of full market value when they seek to acquire land falling within the ceiling. Even if that is done, it will be invalid. It will be challengeable even in a Munsiff's court.

Shri Bhupesh Gupta:

So, he can go to a Court of Law on that ground.

The Deputy Chairman:

He has been very clear.

Shri Bhupesh Gupta:

Let the Minister say it. It is very important.

Shri A. K. Sen:

I have said it several times that it is precisely so.'

17. On the basis of this debate it has been argued that the sanctity of the 2nd Proviso cannot be affected by anything done under Article 31-B.

(It is obvious that the aforesaid debate was confined to the second proviso only. The impact of Article 31-B was not in the mind of the questioner or the Law Minister who answered the question.)

18. It seems to us that Article 31-A gives protection to laws enacted in respect of certain specified matters against attacks on the ground that they are inconsistent with or take away or abridge any of the rights conferred by Article 14, Article 19 or Article 31. There are two provisos to Article 31-A(1). The first proviso is that where a law envisaged by Article 31-A is made by a State Legislature, the protection of the Article would not be extended to it unless the law is reserved for the consideration of the President and receives his assent. The second proviso is that in the case of acquisition by the State of any Estate where any land is held by a person under his personal cultivation and is within the ceiling limit applicable to him under any law for the time being in force, is sought to be acquired, compensation must be paid equivalent to the market value of the land.

19. When Article 31-B opens with the words 'without prejudice to the generality of the provisions contained in Article 31-A', it means that anything contained in Article 31-B would not affect the powers conferred on Parliament or the State Legislatures by Article 31-A. In other words, both the Articles will prevail within their respective spheres.

20. In Visweshwar Rao v. State of Madhya Pradesh, : [1952]1SCR1020 , reliance was placed on the similarity of the language in the opening part of Article 31-B with that of Sub-section (2) of Section 2 of the Defence of India Act and on the Privy Council's Judgment in King Emperor v. Shibnath Banerjee, 72 Ind App 241 = (AIR 1945 PC 156). It was urged before the Supreme Court that Article 31-B was merely illustrative of Article 31-A and as the latter was limited in its application to 'Estates' as defined therein, Article 31B was also so limited. Mahajan, J., in dealing with this argument observes at page 1039: 'Article 31-B specifically validates certain Acts mentioned in the schedule despite the provisions of Article 31-A and is not illustrative of Article 31-A but stands independent of it. .......'

21. The same argument was advanced before the Supreme Court in the State of Bihar v. Sir Kameshwar Singh of Darbhanga : [1952]1SCR889 , Patanjali Sastri, C. J., has said:

'There is nothing in Article 31-B to indicate that the specific mention of certain statutes was only intended to illustrate the application of the general words of Article 31-A. The opening words of Article 31-B are only intended to make clear that Article 31-A should not be restricted in its application by reason of anything contained in Article 31-B and are in no way calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition of 'estates' .........'.

22. Both the above judgments were delivered on May 2 and 5, 1952. They support the proposition that the operation of Article 31-B cannot be limited or restricted by anything contained in Article 31-A. The two Articles are independent of each other and stand on their own strengths. The Supreme Court has expressed a similar view in N. B. Jeejeebhoy v. Asst. Collector, Thana, : [1965]1SCR636 . The Supreme Court has held that the words 'without prejudice to the generality of the provision' in Article 31-B indicate that Acts and Regulations specified in the ninth schedule would have the immunity even if they did not attract Article 31-A of the Constitution. If every Act, says the Supreme Court, in the ninth Schedule would be covered by Article 31-A, this Article would become redundant. It must be held, according to the Supreme Court, that Article 31-B is not governed by Article 31-A and that Article 31-B is a constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the Constitution.

23. This appears to be a clear pronouncement that Acts or Regulations specified in the ninth schedule are protected by Article 31-B irrespective of the provisions contained in Article 31-A.

24. The latest view of the Supreme Court has been expressed in Keshavananda v. State of Kerala, : AIR1973SC1461 . All the learned Judges have supported the view expressed earlier in the cases of Vises war Rao, Kameshwar Singh and Jeejeebhoy: vide Judgments of Sikri, C, J., at page 1564, paragraphs 477 to 485, Shelat and Grover, JJ., at page 1609, paragraph 624; Hegde and Mukherjea, JJ., at pages 1647 to 1648, paragraphs 754 to 758; Ray, J., at pages 1717 to 1718, paragraphs 1073 to 1077; Reddy, J., at page 1777, paragraph 1222; Palekar, J., at page 1828, paragraph 1343, sub-para 3; Khanna, J., at pages 1902 to 1903, paragraphs 1549 to 1550; Mathew, J., at pages 1966 to 1967, paragraphs 1798 to 1803; Beg, J., at page 1984, paragraphs 1869 and 1870 (6) Dwivedi, J., at pages 2018 to 2019, paragraph 2005 and 2008; and Chandrachud, J., at pages 2053 to 2055, paragraphs 2150 and 2156.

25. It should be observed that in Keshavananda's case the majority decision of the Supreme Court was that Parliament had no right to alter the basic features of the Constitution, In spite of this view the validity of Article 31-B was upheld unanimously.

26. The position, therefore, is that the following propositions have now been firmly established:--

1. Article 31-B is valid,

2. Article 31-B has an independent existence, and

3. Article 31-B is not subject to, restricted by or controlled in any manner by Article 31-A.

The next point for our investigation Is whether Acts or Regulations included in the Ninth Schedule are immune from challenge on the ground of violation of the basic features of the Constitution. In Keshavananda Bharati's case : AIR1973SC1461 the majority of the Supreme Court Judges, as we have said, have held that Article 368 of the Constitution does not enable Parliament to alter the basic structure or framework of the Constitution. Learned Judges who constituted the majority, have expressed their own views on what these basic features are. Collating the views expressed in this behalf, the following basic features can be broadly indicated:--

1. Supremacy of the Constitution.

2. Republican and democratic form of Government.

3. Secular character of the Constitution.

4. Separation of powers.

5. Federalism.

6. Dignity and freedom of the individual.

7. Building of a welfare State.

8. Unity and integrity of the nation.

9. Sovereignty of India.

10. Government of Laws and not of men.

27. It is stated, however, that these are merely illustrative and not exhaustive. The question is whether any Act or Regulation included in the ninth schedule or any of the provisions thereof can be assailed on the ground of violation of a basic structure or feature of the Constitution. In Keshavananda Bharati's case : AIR1973SC1461 the Constitution (Twentyninth Amendment) Act, 1972 was under challenge. By this Act the Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969) and the Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971) were included in the Ninth Schedule as Item Nos. 65 and 66 thereof. Six learned Judges, namely, Sikri, C. J., Shelat and Grover, JJ., Hegde and Mukherjea, JJ., and Reddy, J., were of the view that the question whether the Acts or Regulations included in the Ninth Schedule or any provisions thereof abrogated or took away any of the Fundamental Rights or basic elements or essential features of the Constitution would have to be examined by the Constitution Bench of the Court. Six other Judges, namely, Ray, J., Palekar, J., Beg, J., Dwivedi J., and Chandrachud, J., were of the view that by the amending process Parliament could amend any and every provision of the Constitution. In other words, the power under Article 368 was wide and unfettered. In the premises, the Kerala Acts included in the Ninth Schedule by the Twentyninth Amendment Act are entitled to the protection of Article 31-B.

28. The deciding factor was the judgment of Khanna, J. At page 1902 in para. 549 Khanna, J., has relied on the Supreme Court's decision in N. B. Jeejeebhoy v. Asst. Collector, Thana, : [1965]1SCR636 . In this case, we have already indicated that, the Supreme Court made the specific observation that Article 31-B was a constitutional device to place the specified statutes beyond any attack on the ground that they infringed Part III of the Constitution. Khanna, J., quotes inter alia, these specific observations in Jeejeebhoy's case and proceeds to add: 'I see no cogent ground to take a different view. In the result I uphold the validity of the Constitution (Twentyninth Amendment) Act.' In the ordering portion of the judgment at page 2055 it is also stated that the Constitution Bench will determine the validity of the Constitution (Twentysixth Amendment) Act 1971 in accordance with law. The Constitution (Twentyninth Amendment) Act, 1972, has not been referred to the Constitution Bench.

29. The view of the majority, therefore, in Keshavananda Bharati's case : AIR1973SC1461 appears to be that once an Act or Regulation is berthed in the Ninth Schedule it can no longer be challenged on the ground of Constitutional invalidity. The West Bengal Land Reforms (Amendment) Act, 1972 has been included in the Ninth Schedule with effect from the 7th September, 1974, by the Constitution (Thirtyfourth Amendment) Act, 1974. No provision of the West Bengal Act, therefore is now open to attack. Article 31B and the ninth schedule have been enacted by Parliament in the exercise of its Constituent power. They are parts of the Constitution itself.

29-A. Further it does not appear to us that the second proviso to Article 31-A can be said to be a basic feature or essential element of the Constitution. A basic feature or essential element of the Constitution means one of the fundamental principles on which the Constitution is based. These fundamental principles uniformly and without exception, apply to or affect all the citizens of the Republic of India. The second proviso to Article 31-A does not apply to or affect all the citizens and cannot be treated as a basic feature or essential element of the Constitution.

30. Having regard to the conclusions we have reached, it is unnecessary to discuss the other contentions raised before us. We however, propose incidentally to make brief references to them and express our points of view thereon.

31. It is contended that under the impugned Act, the unit of assessment is 'the family' instead of an 'individual person'. This is against democratic principles. One can understand provisions for fixing ceilings on land to be held by an individual; but fixation of ceiling on the basis of family members of an individual cannot be supported in a democratic State.

31-A. If we go through the provisions of Chapter II-B of the West Bengal Land Reforms (Amendment) Act, 1972, we find that the ceiling has, in fact, been fixed with reference to the individual. The ceiling areas have been made proportionate to the members of the family of a raiyat with the raiyat as the unit of assessment. The object of Land Reforms is to ensure equitable distribution of land in the rural areas. Fixation of ceiling of an individual with reference to the number of family members appears to us to be rational. It has a reasonable nexus with the object of land reforms.

32. The next contention is that Section 2(i) of the West Bengal Estates Acquisition Act defines an intermediary. An intermediary includes a raiyat in view of the provisions of Section 52 of the Act, Under Section 6(1) of the Act an intermediary could retain 25 acres of agriculture land in his khas possession. Then comes the West Bengal Land Reforms Act, 1955. Section 3 of this Act laid down that the provisions of the Act would apply notwithstanding anything in any other law or custom or usage or in any contract express or implied inconsistent with its provisions. Section 4(3) of the West Bengal Land Reforms Act. 1955 allowed a raiyat to retain 25 acres of land excluding his homestead. Sub-section (3) of Section 4 was omitted by the West Bengal Land Reforms (Amendment) Act, 1971 and thereafter by the West Bengal Land Reforms (Amendment) Act, 1972. The result was that Section 6(1)(a) of the West Bengal Estates Acquisition Act, 1953 entitling a raiyat to keep 25 acres were revived.

33. Now, Section 14-J of the West Bengal Land Reforms (Amendment) Act, 1972, prescribes that the provisions of this Chapter shall have effect notwithstanding anything to the contrary contained elsewhere in this Act or in any other Law for the time being in force. This was also the provision of the West Bengal Land Reforms (Amendment) Act, 1971. Sub-section (2) of Section 1 of the 1971 Act lays down that the provisions of this Act shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act, and any reference to the commencement of any provision of this Act shall be construed as referring to the date on which that provision comes into force.

34. There is no dispute that Section 4(3) of the 1955 Act was omitted with effect, from 12th February, 1971. And Chapter II-B came into operation three days later, that is, on the 15th February, 1971. For three days, therefore, namely, the 12th, 13th and the 14th Feb. there was no ceiling under the Land Reforms Act, On those three dates a raiyat was entitled to retain 25 acres of agricultural land under the Estates Acquisition Act of 1953. On February 15, 1971, Chapter II-B of the Land Reforms (Amendment) Act. 1971 comes into force. Sections 14L and 14M of Chapter II-B reduce the ceiling of 25 acres but provide in Section 14V that compensation would be paid in accordance with the provisions of Chapter III of the Estates Acquisition Act, 1953. In other words, the ceiling of 25 acres is being reduced without payment of compensation at the market rate contrary to the second proviso to Article 31-A(1) of the Constitution. That is why, Banerjee, J., has struck down Sections 14L and 14M in Dayamaya Debi v. State of West Bengal, (1974) 78 Cal WN 639.

35. In M. R. Produce Co. v. State of Kerala, : [1973]1SCR399 , the Kerala Land Reforms Act of 1969 came up for consideration. The point that was raised before us regarding reduction of the ceiling area, was also raised before the Supreme Court. At page 2035 in paragraph 35, the Supreme Court observes:

' 'Ceiling area' is covered by Section 82. Such area with regard to unmarried persons and families fixed by the 1964 Act was cut down considerably by the Amending Act of 1969. It was argued both by Mr. Chagla and Mr. Setalvad that this was hit by the second proviso to Article 31-A(1) inasmuch as the ceiling having once been fixed by the 1964 Act any diminution in the extent thereof would only be justified if compensation at a rate not less than the market value thereof was provided which undoubtedly is not the case here. Section 82 of the Act of 1964 was aimed at imposing ceiling area on families and adult unmarried persons and did not touch companies. The amending Act of 1969 makes a complete departure from the above provision and imposes a ceiling limit on all persons inclusive of Companies or incorporated bodies. The contention that reduction in the ceiling area fixed by the 1964 Act had to be compensated for by payment of market value of the difference between the ceiling areas fixed by the two Acts cannot be accepted inasmuch as the 'ceiling limit applicable to him under any law for the time being in force in Article 31-A can refer only to the limit imposed by the law which fixes it and not any earlier law which is amended or repealed.'

36. It seems to us that this is a complete answer to reduction of ceiling by subsequent law. The ceiling limit introduced by Section 14-M of the impugned Act which came into force on February 15, 1971, is the ceiling limit under the law for the time being in force within the meaning of the second proviso to Article 31-A(1). We are accordingly unable to hold that Sections 14-L and 14-M are ultra vires even apart from the inclusion of the impugned Act in the Ninth Schedule, as the provisions of proviso 2 to Article 31-A(1) are not at all attracted.

37. The next point is that by theConstitution (Seventeenth Amendment) Act, 1964, the Rajasthan Tenancy Act, 1955 was placed in the ninth schedule be-ing Item No. 55 thereof, an 'Explanation'was also added to the ninth schedule that any acquisition under this Act in contravention of the second proviso to Clause (1) of Article 31-A shall, to the extent of the contravention be void. It was urged that this 'explanation' was introduced for the purpose of illustrating the intention of the legislature that the second proviso to Article 31-A(1) would not be affected by anything done under Article 31-B. It was also urged that if the 'explanation' be restricted to Rajasthan it would go against the basic feature of national unity and integrity.

38. It seems to us that the 'explanation' is applicable to the Rajasthan Tenancy Act only. The express words of the Constitution go to show that the other Acts in the Ninth Schedule are not linked up with Article 31-A.

39. It cannot also be said that the 'explanation' goes against national unity and integrity. We may refer to Items Nos. 14 and 18 in List II in the seventh schedule to the Constitution. These items are:

'14. Agriculture, including agriculture education and research, protection against pests and prevention of plant diseases.

18. 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; colonisation'.

40. These items show that whatever a State does with regard to its own land has nothing to do with national unity and integrity. In this connection reference may also be made to Item No. 42 in List III -- Concurrent List in the Seventh Schedule to the Constitution which provides for acquisition and requisition of a property. The State, therefore, is free to legislate on these subjects also. The argument based on the basic feature of national unity and integrity cannot, therefore, be upheld.

41. Our attention was also drawn to the preamble to the West Bengal Land Reforms Act, 1955. The preamble says that this is an Act 'to reform the law relating to land tenure consequent on the vesting of all estates and of certain rights therein in the State.' Now Section 14-K (e) of the West Bengal Land Reforms Act, 1972, defines an 'orchard' which means 'a compact area of land having fruit bearing trees grown thereon in such number that they preclude, or when fully grown would preclude, a substantial part of such land from being used for any agricultural purpose.' In Section 14-Q (2) it is provided that when a raiyat owns land comprised in orchards, whether or not in addition to other land, the ceiling area in relation to such raiyat shall be increased by 2.00 standard hectares or the actual area of the land comprised in orchards, whichever is the lesser.

42. The West Bengal Land Reforms (Amendment) Act, 1972, therefore, fixes a ceiling relating to orchards. This fixation, it is urged, is contrary to the scope of the Act indicated by the preamble to the West Bengal Land Reforms Act, 1955. An 'orchard' has nothing to do with reform of law relating to land tenure. Section 2(7) of the West Bengal Land Reforms Act, 1955 defines 'land'. It means agricultural land other than land comprised in a tea garden and includes homestead. The contention before us is that the definition of 'orchard' in Section 14-K (e) referred to above clearly shows that an 'orchard' is not an agricultural land. The vesting of an 'orchard' cannot, therefore, be a part of a scheme of agrarian reform.

43. Now, Item No. 18 in List II --State List, as we have seen, is as follows:

'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 loan; colonisation.'

44. We have already referred to this Item in another connection. In L. Jagannath v. Authorised Officer, L. R. Madurai, : [1972]1SCR1055 , this entry was considered. The Supreme Court has observed that this entry is meant to confer the widest powers on the State Legislature in regard to rights in or over land and such rights are not to be measured by or limited to the rights as between landlords and tenants or collection of rents. The words which follow the expression 'rights in or over lands' are merely by way of illustration. If the State wants to enforce a measure of acquiring lands of people who hold areas over a certain limit so as to be able to distribute the same among the landless and other persons, to give effect to the directive principles in Article 39(b) and (c), such a measure does not transgress the limit of the legislative fields because it serves to remove the disparity in the ownership of land. Persons who lose the ownership of land in excess of the ceiling imposed are compensated for the lands acquired by the State and distributed among others.

45. Article 39(b) and (c) of theConstitution to which the Supreme Court has referred provides that the State shall, in particular, direct its policy to securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; and that the operation of the economic system does not result in concentration of wealth and means of production to the common detriment.

46. Since Item No. 18 in List II is to be read in the context of Article 39(b) and (c) the scope of agrarian reforms appears to be very wide. In L. Jagannath's case : [1972]1SCR1055 the Supreme Court has said that if the State Government seeks to enforce a measure by which the condition of barren or unproductive lands can be improved, it can do so even if the measure curtails the rights of landlords and tenants over them. In Ranjit Singh v. State of Punjab, : [1965]1SCR82 it is stated that the scheme of rural development today envisages not only equitable distribution of land so that there is no undue imbalance in society resulting in a landless class on the one hand and a concentration of land in the hands of a few, on the other, but envisages also the raising of economic standards and bettering of rural health and social conditions. If agrarian reforms are to succeed, mere distribution of land to the landless is not enough. The Supreme Court has said that the settling of a body of agricultural artisans (such as the village carpenter, the village blacksmith, barber, washerman etc.) is a part of rural planning and can be comprehended in a scheme of agrarian reforms. It is a trite saying that India lives in villages and a scheme to make villages self-sufficient cannot but be regarded as part of larger reforms.

47. We, therefore, hold that Item 18 in List II in the seventh schedule to the Constitution gives a State Legislature the widest possible powers to legislate on lands. We also hold that agrarian reforms comprehend a large variety of activities of the State for the development of the rural economy, the creation of self-sufficient and self-reliant villages and improvement of the standards of living of the rural population.

48. Assuming, therefore, that an 'orchard' is not agricultural land, the State Government cannot be prevented from taking over land comprised in orchards for being utilised for the development of rural economy or creation of self-sufficient villages. The contention that taking over of orchards would be going beyond the scope of agrarian reforms is, therefore, overruled.

49. It has also been argued before us that orchards cannot be acquired without payment of compensation at the market rate as required by the second proviso to Article 31-A(1).

50. Article 31-A(2) exhaustively deals with what is meant by 'estate'. An 'orchard' as defined in Section 14-K (e) does not form part of any 'estate'. The protection of the second proviso to Article 31-A(1) is not available to an 'orchard'. In other words, even if it be held that Article 31-B is inter-linked with Article 31-A, so far as an 'orchard' is concerned, Article 31-B would have a completely free play. And now that the Acts in question have been included in the Ninth Schedule, the provisions therein relating to an 'orchard' are beyond challenge.

51. Banerjee, J., also struck down Section 14-P of the West Bengal Act XII of 1972 following the decision in Kunjkutty v. State of Kerala, : [1973]1SCR326 . Section 85 of the Kerala Land Reforms Act, 1964 made provisions for surrender of' excess land. It provided that any land held in excess of the ceiling area between specified dates is to be regarded as land still held by the raiyat for purposes of ceiling, even if the raiyat had made any transfer of land during the period. At the same time, the Kerala Act provided that the rights of the transferees would not be affected. It was held that this provision hit the second proviso to Article, 31-A(1). The reason was that while the transfers of land for purposes of ceiling are ignored and the transferees' rights are protected, there would be deprivation of land without payment of market value if the raiyat acquired further land at considerably higher rate.

52. In the impugned Act before us, Section 14-P does not make any such provision. In this Act, no transfer of land during the specified period would be recognised and the transferees' interest would not be protected. The entire land including land held by the transferee is to be taken into consideration for the purpose of the ceiling. There is, accordingly, no question of attracting the provisions of the second proviso to Article 31-A(1) to the West Bengal Act XII of 1972 in respect of Section 14-P. The decision of the Supreme Court has no application and the impugned Act does not suffer from the infirmity complained of, apart from its immunity from attack in view of its inclusion in the ninth schedule.

53. We have discussed the pointsurged before us by the respective partieswhich appeared to us to be relevant fordisposal of this application.

54. The result is that the Rules are discharged. The appeals, heard along with the Rule, are allowed and the decision in Dayamayee's case in so far as it holds that the provisions of the impugned Act are ultra vires the second proviso to Article 31-A(1) of the Constitution of India is overruled. The Rules giving rise to the appeals heard before us are discharged. All interim orders therein, if any, are vacated. There will be no order as to costs. Prayer for stay is refused.

Salil Kumar Datta, J.

55. I agree.


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