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Cites 14 docs - [View All]
The Amending Act, 1897
Article 31 in The Constitution Of India 1949
The Bengal Districts Act, 1836 ]
Article 304(b) in The Constitution Of India 1949
Syed Ahmed Aga Etc vs State Of Mysore & Another on 2 May, 1975

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Bombay High Court
Shaliabi vs State Of Maharashtra on 4 July, 1986
Equivalent citations: AIR 1987 Bom 67, 1986 (3) BomCR 86, (1987) 89 BOMLR 45
Author: V Mohta
Bench: V Mohta, G Loney

JUDGMENT

V.A. Mohta, J.

1. Is the Maharashtra Act No.26 of 1976 by which the words "the possession of such land has not been taken under sub-s.(4) of S. 21" in S. 45(2) of the Maharashtra Agricultural Lands(Ceiling on Holdings) Act, 1961 (the principal Act), have been deleted] unenforceable for want of President's assent is the sole point to be determined in this Letters Patent Appeal. Section 45(2) as it stood before this amendment read thus:

"The State Government may suo motu or on an application made to it by an aggrieved person at any time call for the record of an enquiry or proceedings under Ss. 17 to 21 (both inclusive) for the purpose of satisfying itself as to legality and propriety of any enquiry or proceedings (or any part thereto) under those sections and may pass such order thereon as it deems fit after giving the party reasonable opportunity of being heard.

Provided that nothing in this section shall entitle the State Government to call for the record of any enquiry or proceedings of a declaration or part thereof under S.21 in relation to any land unless an appeal against such declaration or part thereof has been filed within the period provided for it, the possession of such land has not been taken under sub-s.(4) of S. 21 and a period of there years from the date of such declaration or part thereof has not elapsed."

2. Undisputed broad position is: Suo motu power of revision under S. 45(2) of the Principal Act, has been exercised by the Commissioner - a delegate of the State Government under S. 45(3) - after the possession of the land delimited as surplus under S. 21(1) has been taken under S. 21(4). The Principal Act which relates to acquisition of land and passed on 16-6-1961 having been reserved for the assent of the President has received the assent as per the mandate of old Art. 31 of the Constitution which has now been omitted by the Constitution (44th Amendment) Act. 1978. The principal Act was put in 9th Schedule made under Art. 31B. By Act No. 32 of a965, original sub-sec.(2) of S. 45 was substituted by new sub-ss. (2) and (3). By Act No. 21 of 1975, the revisional power under S. 45(2) in so far as it related to enquiry and order about distribution of surplus land under S. 27 was withdrawn. By Act No. 2 of 1976 sub-s, (3) dealing with the power of the State to delegate ;was amended. All these three amending Act were reserved for the assent of the President and had received it. By Act No.26/1976, S.45 is amended fourth time. It has not received the President's assent. It is brought into force from 5th August 1976. Following three conditions precedent were attached to exercise of revisional jurisdiction:

(a) appeal under S. 21 is not filed within time;

(b) possession of surplus land is not taken and

(c) period of three years has not elapsed.

Act No. 26/1976 is extremely small and aims at removing condition (b) and nothing else.

3. Heart of the matter is whether the above condition (b) was an inextricable part of the process of acquisition or not and whether it could be remove without President's assent ? In our view this calls for examination of the scheme of the Principal Act so far as it relates to the process of acquisition. The Principal Act imposes the maximum limit on the holding of agricultural land and provides for acquisition and distribution of lands held in excess of the ceiling limit. The term 'land' is defined under S. 2(16). Chapter 11 deals with the lowering of the Ceiling on Holdings; Chapter III with restrictions on transfers and acquisition, consequences of contraventions, etc., and Chapter IV with the surplus land. A Return of holdings has to be submitted by the land holder in terms of S. 12 Section 14 contemplates enquiry by the Collector. Sections 17 to 20 deal with manner of holding enquiry. Section 21 deals with the declaration regarding surplus land etc. and consequences thereof. Section 21(1) mandates the Collector the make a declaration. Section 21(2) mandates the preparation of a statement in the prescribed from giving details of the areas, description and full particulars of the land which is delimited as surplus land, and also of the land therefrom, the right, title and interest in which is to be forfeited to the State Government. On the date of making of the declaration under S. 21(1), the right, title and interest in the land which is liable to forfeiture to stand forfeited to and vests in the Government after which transfer of land in any manner is prohibited. Sub-sec (3) which is most material reads thus:-- "The declaration made under this section, subject to the decision of the Maharashtra Revenue Tribunal in appeal under S. 33. or of the State Government, in revision under sub-s.(2) of S. 45. shall be final and conclusive, and shall not be questioned in any suit or proceeding in any Court."

Sub-section (4) reads:--

"As soon as may be after the announcement of the declaration referred to in sub-sec.(2), the Collector, shall take, in the prescribed manner, possession of the land which is delimited as surplus and, in the case of land which the landlord is entitled to resume, restore possession of the land to the landlord named in the declaration. The surplus land shall, whit effect from the date on which the possession thereof is taken as aforesaid be deemed to be acquired by the State Government for the purposes of the Act and shall accordingly vest without further assurance and free from all encumbrances in the State Government."

Chapter VII deals with the procedure. Section 33 provides for an appeal within 15 days against award of the Collector to the Maharashtra Revenue Tribunal. Last Chapter VIII dealing with miscellaneous matters contains the revisional jurisdiction.

4. Now, it is clear from S. 21(3) that the declaration made under S. 21(1) is specifically made final and conclusive subject only to the decision of (a) the Maharashtra Revenue Tribunal in appeal under S. 33 or (b) the State Government or its delegate in revision under S. 45(2). Fairly, it is not disputed before us that the appeal or revisional power as such is an inextricable part of the process of acquisition. The only submission of the State is that the portion deleted related merely to a from in the exercise of revisional jurisdiction, and therefore was not an inseparable part of process of acquisition and that on the basis of doctrine of "pith and substance" as applied to Act No. 26/1976 it fell under Entry 65 in the State List or Entry 46 in Concurrent List and not under Entry No. 18 of State List or Entry No.42 of the Concurrent List. Stand taken by the State found favour with the learned Single Judge for the reasons that can best be explained in his own words. They are:-- "It is, therefore, clear that the doctrine of pith and substance can be applied in determining the true nature and character of the impugned Amending Act in the instant case. Examining the impugned Amending Act in this case its bare perusal would show that it is essentially or in pith and substance an Act relating to procedure, jurisdiction or power of the Authority under the Ceiling Act. The Amending Act in the instant case is not dealing with the subject of acquisition as such but is dealing with the question of revisional power of the State Government under S, 45(2) of the Ceiling Act may ultimately affect determination of surplus nonetheless it cannot be said to be a law in relation to the acquisition of property as such. The pith and substance of the Amending Act is in relation to the jurisdiction and powers of Authority under S. 45(2) of the Ceiling Act, or in other words, it is merely a procedural enactment covered primarily by entry No. 18 or 65 of the State List. Even assuming that the subject matter of the amending Act is covered by the entry No. 42 of the Concurrent List relating to acquisition and reacquisition of property, it does not in pith and substance enact a law relating to acquisition as such within the meaning of Art. 31(2) of the Constitution but enacts in pith and substance a law relating to procedure for acquisition which is covered by entry No. 46 of the Concurrent List in the Seventh Schedule or for that matter entry No. 42 itself of the said list................There is yet another angle form which this question can be looked at. As the legislative history of the Ceiling Act shows, the original Ceiling Act, which contains original S. 45(2) and its further amendments except the Amending Act in question, have been passed with the assent of the President, Since the original provision of S. 45(2) has the assent of the President, the substantive power conferred by it upon the revisional authority to interfere with the orders of the subordinate Ceiling Authorities, in which is implicit the power to determine surplus, can be said to be validly conferred in the sense that it cannot be assailed under Art. 31(3) of the Constitution assuming that it enacts a law relating to acquisition as it...................................Constitution. The proviso to S. 45(2), which deals with the restriction upon the power to revise is procedural in nature. It is also originally assented to by the President. The deletion by the Amending Act of the condition in the exercise of power under S. 45(2), viz., "that the possession of such land has not been taken under sub-s. (4) of S.21" does not detract from the original power conferred by the substantive provision of S. 45(2) of the Ceiling Act to interfere with the orders of the subordinate authorities. The effect of deletion is that even if possession is taken overn by the State, the power of revision under S. 45(2) can be exercised by the State Government or its delegate. The Amending Act, which removes the fetter in the exercise of power under the substantive part of S. 45(2) of the Ceiling Act removes a procedural restriction upon the exercise of the power and cannot, therefore, be said to be a law relating to acquisition as such requiring the assent of the President under Art. 31(3) of the Constitution."

5. Now it is clear that taking into consideration the scheme of the principal Act it cannot be assumed that Procedural provisions on the basis of which surplus is finally determined and property acquired by the State do not directly deal with the subject of acquisition as such. If that be the correct and undisputed position in law it is difficult to see how a statutory condition like condition (b) attached to those provisions can stand on a different footing. That condition clearly is an inextricable part of the procedure which in turn is inextricable part of the process of acquisition. There was a serious debate before us as to whether the doctrine of "pith and substance" which is generally applied in reading entries in the 7th Schedule can be applied to a legislation as well. In our judgment it is unnecessary to go into that debate as the object of the Act No. 26/1976 as well as the language used therein are unambiguous and have only one target in view, viz., to do away with one of the three conditions attached to the exercise of revisional jurisdiction. But provisions of Act No. 26/1976 in isolation cannot be the deciding factor. Those provisions cannot be examined dehors the provisions of the principal Act relating to the acquisition process as a whole.

6. Section 21(3) has specifically made the declaration under S. 21(1) final subject to appeal/revision which means appeal/revision as statutory provided then. The revisional jurisdiction which directly affects the acquisition process and valuable rights of citizens, can be exercised only as provided under a statute. Removal of any condition means directly affecting those rights. It is perinent to notice that several valuable rights are accrued to the landholder as soon as declaration is made. He is free to create third party interests in the land within the ceiling limits. The allottee to whom surplus land is distributed also acquires title to the property. We will take one example. If possession of land was taken as per S.21(4) before 5th August 1976 when Act No. 26/1976 came into force, the declaration became final on the date of taking possession, under certain circumstances as per the law as it stood them. Those third parties to whom the land was transferred and allotted to whom land was actually distributed could also be adversely affected by new revisional jurisdiction if exercised within three years from the date of declaration under S.21(4). We have not taken this example from the point of view of reasonableness of the amendment but from the point of view of its potentiality to affect the acquisition process and the extent. Thus judged in the whole context it cannot be said that the Act No. 26/1976 is not a law relating to acquisition as contemplated under Art. 31. There was legislative wisdom in having that condition which had received President's assent and the said condition could not be removed legally without the said assent.

7. Our attention was invited by Shri Jaiswal, the learned Assistant Government Pleader for the State, to the case of Damodar Valley Corporation v. State of Bihar, (AIR 1976 SC 1956). Damodar valley is an inter-State river-valley regulated by a statutory Corporation exempt under Act. 288(1) of the Constitution from liability to pay electricity duty under the Bihar Act No. 36 of 1948. Exemption was removed by amending S. 3 which deals with incidence of tax. Amendment received the assent of the President as required under Art. 288(2). Section 4 dealing merely with manner of payment of tax was not amended with assent of the President and in this context the contention that there was no liability to pay duty was repelled observing:-- "What is required by CI. (2) of Art. 288 is that the law made by the State Legislature for imposing, or authorising the imposition of tax mentioned in CI. (1) shall have effect only if after having been reserved for the consideration of the President it receives his assent. Another requirement of that clause is that if such law provides for the fixation of the rates and other incidents of such tax by means of rules or orders to be made under the law by any authority, the law shall provide for the previous consent of the President being obtained to the making of any such rule or order. It is, however, not the effect of that clause that even if the above mentioned two requirements are satisfied, the provisions which merely deal with the mode and manner of the payment of the aforesaid tax should also receive the assent of the President and that in the absence of such assent, the provisions dealing with the incidence of tax, which have received the assent of the President, would remain unenforceable."

The ratio of this decision in the whole back-ground cannot apply to the matter at hand. President's assent is necessary only for imposition. Mode or manner of payment is quite independent of the incidence.

8. The case of Syued Ahmed Aga V. State of Mysore, was also relied upon. In that case, Mysore Silkworm Seed and Cocoon (Regulation of Production, Suply and Distribution) (Amendment) Act (29 of 1969) which had not received the assent of the President fell for consideration. The main Act had received the assent as required under proviso to Art. 304(b). Section 18 of the main Act contained a rule making power in the Government to carry out the purposes of the Act. By amendment what was contained in the Rules framed by the Government was incorporated in the statute. Contention that they were additional restrictions within the meaning of Art. 304(b) was repelled saying:-- "In any case, we are not satisfied that there has been a real increase in restrictions upon commerce in silkworms and cocoons by the provisions of the Amending Act which mostly statutory rules. If the substance of statutory rules is converted into statutory provisions there could hardly be said to be an addition even in "regulation" imposed by the amending law."

Having regard to the nature of controversy it is clear that ratio of that decision also does not apply here.

9. Shri Madkholkar, the learned Counsel for the appellant-landholder, has invited our pointed attention to a Special Bench decision of Calcutta High Court in the case of Ananda Kumar v. State of West Bengal, dealing with the validity of the West Bengal ?Estates Acquisition (Amendment) Act, 9 of 1967, for want of President's assent. The West Bengal Estates Acquisition Act, 1953, is for compulsory acquisition of land and had received the President's assent as required by Art. 31. Period of 9 years was prescribed fro taking steps to revise record of rights as per S. 44(2) of the said Act. By Act No.9 of 1967 (which was neither reserved for assent of the President nor had received it) the period was increased to 12 years, Record of rights determines the quantum and particulars of land and the right to receive compensation for the acquired property which can be retained by a landholder. In this background after exhaustively dealing with the scheme of the Principal Act, Sabyasachi Mukharji, J. (as he then was) speaking for the bench observed:--

"The right to obtain compensation and the quantum thereof are also dependent upon the record of rights. It follows, therefore, that the procedure and the method for the preparation of the record of rights are integral parts of the scheme of acquisition under the West Bengal Estates Acquisition Act, 1953..........

In our view, however, the West Bengal Act IX of 1967, being inextricable linked up with the scheme of acquisition comes within the purview of CI. (2) of Art. 31 of the Constitution and without the assent of the President the same is unenforceable."

We have our respectful concurrence to the above view and in our judgment the ratio laid down clearly applies also to the provisions of the enactment with which we are dealing. The judgment impugned in this appeal has dealt with the above case thus:-

"The Amending Act included in this petition is thus not within the mischief of Art. 31(3) of the Constitution necessitating the assent of the President, since it enacts a law which is in pith and substance a law relating to procedure, jurisdiction or power of the Court under S. 45(2) of the Ceiling Act and is not a law relating to acquisition as such as contemplated by Art. 31(2) of the Constitution. In this view of the matter, it is really not necessary to consider the ration of the Calcutta case, which does not examine the question form this point of view. At any rate, it is not necessary to go into that decision because the Court holds in that case, that the West Bengal Amending Act in question in that case is inextricably connected with the law of acquisition because the amount as well as the persons entitled thereto depend upon the entry in the record of rights for revising which the period mentioned is extended by the impugned Amending Act. In the instant case, I am of the view that the Amending Act does not provide for any substantive basis for acquisition as such and cannot, therefore, be said to be a law inextricably connected with the law of acquisition."

With respect we do not agree with the above approach, for the reasons already indicated.

10. We may in the passing make reference to the case of Godavari Sugar Mills Limited v. S. B. Kamble, which considered the point as to whether amendments made to the principal Act after its inclusion in the 9th Schedule could receive the protection of the said Schedule on the ground that they were ancillary or incidental to the main provisions. It is observed:-- "The entitlement to protection being confined only to the Acts. Regulations and provisions mentioned in the Ninth Schedule, it cannot be extended to provisions which were not included in that schedule. This principle would hold good irrespective of the fact whether the provision to which entitlement to protection is sought to be extended deals with new substantive matters or whether it deals with matters which are incidental or ancillary to those already protected."

11. Under these circumstances, we declare Act 26/1976 as unenforceable for want of President's assent under Art.31. Inevitable consequence is that the notices issued by the Additional Commissioner and the further proceedings in Revision No.2/60-A(5) of 1977-78 of mouza Inada pending on the file of the Commissioner, Nagpur Division, Nagpur, initiated on that basis are quashed.

12. Conclusion : The appeal is allowed. The impugned judgment is set aside. No Costs.

13. Appeal allowed.