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PETITIONER: SASANKA SEKHAR MAITY & ORS. ETC.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT09/05/1980

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N. KRISHNAIYER, V.R. TULZAPURKAR, V.D.

CITATION:  1981 AIR  522            1980 SCR  (3)1209  1980 SCC  (4) 716  CITATOR INFO :  F          1989 SC 374  (14)

ACT:      Fixation of  ceiling of  agricultural  holdings-Whether the provisions  of Chapter  IIB  of  the  West  Bengal  Land Reforms Act,  1955 (Act  X of  1956) inserted  by  the  West Bengal Land  Reforms (Amendment)  Act, 1971 (President’s Act III of  1971) and  replaced by  the West Bengal Land Reforms (Amendment) Act,  1972 (Act  XII of 1972) with retrospective effect from  February 15,  1971 is  violative of  the second proviso to Article 31A(1) of the Constitution.

HEADNOTE:      In furtherance of the Directive Principles enshrined in Article 39(b),  agrarian reform  was undertaken in the State of West  Bengal in  two stages.  The first  was the stage of abolition of  the zamindari  system. The West Bengal Estates Acquisition Act,  1953 (Act  I of  1954) which  received the assent of the President on February 12, 1954 has been placed in the  Ninth Schedule as item No. 59, was an Act to provide for the  acquisition of  estates of rights of intermediaries therein and  of certain rights of raiyats and under-raiyats. By virtue  of notification  under s.  4 issued  on April 14, 1955 declaring  April 15, 1955 to be the date of vesting the estates and  the rights of intermediaries therein, vested in the State  free from  all encumbrances from that date. After the extinction  of the  feudal system  of zamindari, the big landlords  became   intermediaries,  but  by  virtue  of  s. 6(1)(a), (c), (d), (e) and (f), they were entitled to retain land comprised in homesteads, non-agricultural land in their khas possession  not exceeding  15 acres, agricultural lands in their  khas  possession  not  exceeding  25  acres,  tank fisheries and  land comprised  in tea gardens or orchards or land used  for the  purpose of  livestock breeding,  poultry farming or  dairy. Under  s. 6(2) they became tenants of the State. The  stage was  thus set  for the  imposition of  the ceiling on agricultural holdings.      The West  Bengal Land Reforms Act, 1955 (Act X of 1956) came into force on March 31, 1956. The object and purpose of

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the Act  as reflected  in the preamble was to reform the law relating to  land tenure  consequent on  the vesting  of all estates and of certain rights therein in the State. This was followed by  notification issued  by  the  State  Government under s. 49 of the West Bengal Estates Acquisition Act, 1953 on April  9, 1956.  As a result of the notification under s. 49 the  petitioners, who  were raiyats,  were deemed  to  be intermediaries and  the lands owned and possessed by them as estates and  all the  lands and  the petitioner’s  rights in such lands  vested in  the State  with effect from April 10, 1956. But the petitioner as intermediaries were permitted to retain the lands as provided for in s. 6(1).      This state  of affairs continued till February 12, 1971 when the  West Bengal  Land Reforms  (Amendment)  Act,  1971 (President’s Act  III of  1971) came  into force.  This  was replaced in  due course,  by the  West Bengal  Land  Reforms (Amendment) Act,  1972 (Act  XII of 1972) with retrospective effect from  February 12,  1971. These  Acts brought about a drastic change by introducing Chapter IIB for the imposition of a  ceiling  an  agricultural  holdings.  As  a  necessary consequence the Acts deleted s. 4(3) as well as s. 6. As a 1210 result of the deletion of s. 4(3), the right of retention of raiyats of  agricultural lands to the extent of 25 acres was taken away and the deletion of s. 6(2) relieved the State of the obligation  to pay  market value  for acquisition of the surplus land.      West Bengal  Land Reforms Act, 1955 (Act X of 1956) and the West  Bengal Land Reforms (Amendment) Act, 1972 (Act XII of  1972),   which  introduced   Chapter  IIB  therein  with retrospective effect  from February 12, 1971, have both been placed  in   the  Ninth   Schedule   by   the   Constitution (Thirtyfourth Amendment)  Act, 1974  being items  60 and  81 thereof. They  have thus the immunity of Article 31B besides being fully protected under Articles 31A and 31C.      The  petitioners  being  aggrieved  by  these  agrarian reform challenged  in these  writ petitions  the validity of definition of  the term ’family’ contained in s. 14K(c), the fixation of  ceiling limits of a raiyat under s. 14M(1), the provision for  lands held  by the  members of a family being clubbed under  s. 14M(2)  the avoidance  of transfers  by s. 14P, the  fixation of  a ceiling  limit on orchards under s. 14O(2), the  vesting of  surplus land  in the State under s. 14S(1), the  penal consequences for failure to file a return provided for  in s.  14T(4), the imposition of a restriction on transfers under s. 14U and the absence of a provision for payment of  compensation for  acquisition of homestead under s. 14V.      Dismissing the petitions, the Court ^      HELD: (1)  Both Articles 31A and 31B were introduced by the   Constitution   (First   Amendment   Act)   1957   with retrospective effect  with  a  view  to  validate  zamindari abolition Acts  and conferred  immunity  from  challenge  in Courts. Article  31A was  designed  to  facilitate  agrarian reform as well as social control of the means of production. Article 31A  reflects the  intention of  the  Government  to immunise  state   legislations  relating  to  imposition  of ceiling on agricultural holdings from the usual compensation required or  other requirements  of the  fundamental  rights guaranteed under  Part III  which  are  most  likely  to  be invoked-Articles 14, 19 and 31. [1242 B-1223 C-D, F-H]      The West  Bengal Land  Reforms Act is a piece of social legislation  for   agrarian  reform.   The  object   of  the legislation is  to break  up the  concentration of ownership

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and control  of the  material resources of the community and to so  distribute the  same as  best to sub-serve the common good, as  enjoined by  Article 39(b)  of  the  Constitution. Having regard to the quantity of land available in the State of West  Bengal, which  has  the  next  highest  per  capita density in  the whole of the country, the ceiling limits, is reasonable and  fair.  For  equitable  distribution  of  the natural resources  it was  essential to design the Act as it is so that the surplus land is available for distribution to the landless  peasantry. The  Act makes  available  to  each person of  the community  living below  the poverty line, to some extent  the minimum  means of  subsistence.  In  order, therefore,  to  reconcile  the  fundamental  rights  of  the community as  a whole with the individual rights of the more fortunate section  of the  community, it  was  fundamentally necessary to  make the  impugned legislation  to secure to a certain extent  the rights  of that  part of  the  community which is  denied  its  legitimate  share  in  the  means  of livelihood. [1224 F-H, 1225 A] 1211      (2) The  broad objectivity  of any legislation relating to agrarian  reform are  materially  four,  namely,  (i)  to maximise the  agricultural output  and productivity,  (ii) a fair and  equitable  distribution  of  agricultural  income, (iii) increase in employment opportunities and (iv) a social or ethical  order. Though  the abolition of zamindari system in the  State of  West Bengal  was an important step forward the feudal  structure remained  so far  as the peasants were concerned.  These  objectives  have  been  achieved  through progressive legislation. [1225 B-C]      (3) The  ceiling on  agricultural holdings  once  fixed cannot be  static unalterable  for all times. The expression "any law  for the  time being in force", obviously refers to the law imposing a ceiling. Here, it is the West Bengal Land Reforms (Amendment)  Act, 1971 (President’s Act III of 1971) and now  the West  Bengal Land Reforms (Amendment) Act, 1971 (Act XII  of 1972)  which introduced  Chapter IIB imposing a new ceiling on agricultural holdings of raiyats. That is the law for  the time  being in  force, and  no  land  is  being acquired by the State under s. 14L within the ceiling limits prescribed therein. [1226 A-C]      Further the  second  proviso  to  Art.  31A(1)  to  the "ceiling limit applicable to him", which evidently refers to the law in question and not the earlier law, that is s. 6(1) of the  West Bengal  Estates Acquisition  Act, 1953. Both s. 4(3) and  s. 6(2)  of the West Bengal Land Reforms Act, 1955 stood deleted  by the  West Bengal  Land Reforms (Amendment) Act, 1971  (President’s Act  III of  1971) and thereafter by the West  Bengal Land  Reforms (Amendment)  Act,  1972  with retrospective effect from February 12, 1971. [1226 C-D]      The ceiling  limit introduced by s. 14M 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  Art. 31A(1). That being  so, the  provisions  of  Chapter  IIB  have  the constitutional immunity of Art. 31A and cannot be challenged on the  ground that they are inconsistent with, take away or abridge the  fundamental rights  guaranteed by  Articles 14, 19(1)(f) or  31(2). Even  if it  were not  so, they would be under the  protective umbrella of Art. 31B. Indubitably, the provisions of  Chapter IIB  are a  law related  to  agrarian reform and  thus protected. The challenge to the validity of the Constitution  (Twentyninth Amendment) Act was allowed to be raised  as an  additional ground in Kesavananda Bharti v. State of  Kerala and  the court  by majority of 7 : 6 upheld

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the validity  of the  twentyninth amendment. [1227 E-G, 1228 F-G]      Kunjukutty v.  State of  Kerala, [1973]  1 S.C.R. 326 & 341, Malankara  Rubber and  Products Co. v. State of Kerala, [1973] 1 SCR 399 followed.      Kesavananda Bharti v. State of Kerala, [1973] Supp. SCR 1 referred to.      (4) When Art. 31B was introduced in the Constitution by the Constitution  (First Amendment)  Act, 1951, it validated retrospectively 13  Acts specified  in the  Ninth  Schedule, which, but  for this  provision, were  liable to be impugned under  Art.  13(2),  Article  31B  conferred  constitutional immunity  to  such  laws  (all  being  enactments  of  State Legislatures) and  Parliament alone  could have  done so  by inserting the  said Article  in the Constitution in exercise of its  constituent power  under Art.  368. In substance and reality it was constitu- 1212 tional device  employed to  protect State laws from becoming void under  Art.13(2). The language in Art. 31B is virtually lifted  from   Arts.  13(1)  and  (2)  while  article  13(2) invalidates legislation,  which takes  away or  abridges the rights conferred  by Part  III, Art. 31B extends "protective umbrella" to  such legislation  if it  is included  in Ninth Schedule and,  therefore, the Court will have no power to go into the  constitutionality of the enactments as included in the  Ninth   Schedule  except  on  the  ground  of  want  of legislative competence. [1229 C-F]      (5) The  definition of  ’family’  as  contained  in  s. 14K(c) of  the Act is more realistic than the definitions of this term  in similar  laws for  imposition  of  ceiling  on agricultural  holdings   enacted  in   other   States.   The definition is  much wider,  and far more generous and humane because it  takes into  consideration  the  existence  of  a widowed and  divorced daughter,  which is  absent  in  other Acts. The  meaning  given  by  Explanation  I  to  an  adult unmarried person  is an  inclusive one  and  it  includes  a daughter  who  has  been  divorced.  This  necessarily  also includes  a  widowed  daughter.  By  the  proviso  added  to Explanation I,  where such  widowed daughter is the guardian of any  minor son  or  unmarried  daughter,  or  both,  she, together with such minor son or unmarried daughter, or both, shall be  deemed to be a separate family. She, therefore, is treated to  be a  raiyat in her own right in relation to her family and  her holding  is not  clubbed with  that  of  her father under  s. 14M(2).  The benefit provided to a divorced daughter  would,   obviously,  also   extend  to  a  widowed daughter.  Explanation  II  deals  with  the  spouse  as  in relation to a raiyat who is a woman, reference in Clause (c) to wife’s son or daughter shall be construed as reference to the husband’s  son or  daughter, respectively of such woman. The Legislature  on a  correct perspective  has enlarged the definition of  a family  to the maximum possible extent, and provides for as many as nine members. [1230 H, 1231 A-C]      The marginal  cases wherein normally in the family of a raiyat he  has his  parents to  maintain would  be very few. Normally, the  father of  a raiyat  would have  his separate holding and  would be entitled to a separate ceiling area of his own determined under s. 14M. The Legislature had to draw a line somewhere. By s. 14M(2)(b) it provided for augmenting of the  holding of  a raiyat  to the  extent of 7.0 standard hectares by  taking into  account five  plus four,  that is, nine members. [1231 C-E]      (6) The creation of an artificial concept of family and making provision  for the  clubbing together of land holding

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of each member of the family are not violative of the second proviso to  Art. 31A(1), and even if they were, protected by Art. 31B.  This had necessarily to be done for achieving the purpose and  object of  the legislation, that is, imposition of a  ceiling on  agricultural holding.  The  provisions  of Chapter IIB  in the  Act are a law for imposition of ceiling on agricultural  holdings of  raiyats and  are not a law for enlargement of  such holdings, that is, these put a limit on the maximum  limit of  a holding of a raiyat. The Act adopts the individual as the unit and not the family and allows for augmentation  of  his  holding  depending  upon  the  normal concept of a family. [1231 E-G]      (7) There is no question of conferral of any new rights of minor  son  or  unmarried  daughter,  as  they  would  be included in the father’s family, who 1213 would get a much larger ceiling of 5 to 7 standard hectares, depending upon  the number  of children that he has. Nothing prevents a  minor son or the unmarried daughter of a raiyat, like his  parents, from  acquiring  property  of  their  own subsequently by  inheritance or transfer. It is difficult to envisage a family consisting of 18 members in present times. Nor can  the Legislature  be expected  to  provide  for  all contingencies because  according to  s.  14M(b)  the  raiyat would  be  entitled  to  retain  no  more  than  7  standard hectares, that  is, 5 standard hectares for his family up to 5 members and 5.50 standard hectares per head for four other members. The  extent of  the holdings  on which  ceiling  is fixed varies  depending upon whether it is an irrigated area or any  other area.  There is  no arbitrariness  and  indeed there is  no substantial decrease in the limit. One standard hectare is  equivalent to  2.47 acres.  The ceiling  limits, therefore, work  out  to  6.18  acres  in  the  case  of  an individual and  12.35 to  17.29 acres  of irrigated land, in the case  of a family, which, in the Gangetic plains of West Bengal, is  not small  by any  standard. In other areas, the ceiling limit  varies from  8.64 to 24.2 acres. According to agro-economists, an  economic holding  is of  5 to  7 acres. [1232 A-C, E-F, 1233 G-H, 1234 A-B]      It is  not possible  to lay  down a ceiling standard or prescribe one  limit in  terms of  fixed acreage for general application throughout the country. The productivity of land is not  the same  in all areas, due allowance has to be made for varying local conditions. As per the suggestions made by the four  Five Year  Plans and the Congress Agrarian Reforms Committee, the  ceiling limits  were mainly prescribed. Some States put  a ceiling  limit on the holding of an individual owner while  the others imposed a ceiling on family holding. In the  States where  a ceiling  was imposed  on  individual holding there was greater scope for mala fide transfers than where the  ceiling was imposed on the aggregate area held by all the  members of the family. In the latter case there was no inducement to effect transfers between the members of the family  as   their  share   had  already   been  given   due recognition. [1234 B-E]      (8). The fixation of a back date is a usual legislative device to  prevent avoidance of change brought about by law. The date  mentioned in  s. 14  does bear  a reasonable nexus with the  object or  purpose of  the legislation.  The  West Bengal Land  Reforms (Amendment)  Act. 1971  while inserting Chapter II  B enacted  s. 14P  providing that in determining the ceiling  area of a raiyat any transfer effected by sale, gift or  otherwise or  by a partition by him after August 7, 1969  and  before  February  8,  1971,  i.e.,  the  date  of publication of  the Act in the official Gazette shall not be

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taken into account and the land shall be deemed to form part of the  holding of  the raiyat.  By a  legal  fiction,  such transfers were  presumed  to  be  mala  fide  as  they  were calculated to defeat the ceiling law. [1235 D-F]      The West  Bengal Land  Reforms (Second Amendment) Bill, 1969 was  published in  the official  Gazette on  that date. Though the  amendment primarily  related to re-assessment of revenue, the  concept of  "family" was  first sought  to  be introduced in  the West  Bengal Land  Reforms  Act  by  that amendment. The  land-holders, therefore,  had a fore-warning that the  concept of  family  may  come  into  play  in  the determination of  ceiling area  of land.  Prior to  the said amendment,  the   proposed   legislation   ceiling   adopted individual as  a unit and not the family. Unless a date-line is fixed  in the  matter  of  ceiling  or  similar  agrarian reforms, the  very  purpose  of  the  legislation  would  be frustrated. The scope and 1214 effect of  s. 14P are that all agriculture lands transferred after  August  7,  1969  shall  be  taken  into  account  in computing the ceiling of the raiyat. The effect was that the ceiling virtually imposed treating the family as the unit in s. 14M  (2) was  given a retrospective effect by s. 14P with effect from August 7, 1969. [1235 G-H, 1236 A-B]      (9) Section  14U  provides  that  except  where  he  is permitted, in  writing, by  the Revenue  Officer so to do, a raiyat owning  land in excess of the ceiling area applicable to him under s. 14M, shall not, after the publication of the Act in  the official  Gazette,  i.e.,  February    8,  1971, transfer, by  sale, gift  or otherwise or make any partition of any  land owned  by him  or any  part thereof  until  the excess land  which is to vest in the State under s. 14S, has been determined  and taken  possession of by or on behalf of the State.  Such provisions  are to be found in all the Acts passed by different States relating to imposition of ceiling on agricultural  land and  indeed  they  are  essential  for implementing the scheme of the Act. [1236 B-D]      In acutal  implementation, the  provision of these Acts were circumvented  to  a  large  extent  by  the  making  of fraudulent transfers.  Transfers of  rights in land could be effected by one of several ways such as sale, mortgage, gift and exchange.  The Act  by s.  14P provides  that  transfers effected before the date of publication of the Act and after August 7,  1969 shall  not be  taken into consideration. The legislature fixed  August 7, 1969 as the date from which all such transfers  or partitions  shall be  deemed to have been effected with  the intention  of  defeating  the  law.  Such transfers were  presumed to  be mala  fide as they had taken place in  anticipation  of  the  enactment  and,  therefore, liable to  be ignored.  As the  ceiling was  fixed for  each individual raiyat  and not  the family, as a unit, there was practically no  limit to  the amount  of land  that could be held by a family in this way, and therefore, the legislature had to  insert s.  14M(2) for  their shares  to  be  clubbed together. There  were plenty  of  reasons  to  believe  that splitting of  big holdings between members of the family had taken place  on considerable  scale in  anticipation of  the legislation. [1236 D-G]      (10) There is no absolute bar under section 14U against transfers till  the determination  of the ceiling area under s. 14M.  As regards s. 14U the fundamental right to acquire, hold and  dispose of property guaranteed under Art. 19(1)(f) was subject  to the  right of the State to impose reasonable restrictions under  Art. 19(6).  The legislature  was  fully competent to  lay down  the maximum limit on an agricultural

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holding and  make  ancillary  provisions  to  make  the  law effective  by   avoidance  of  transfers.  These  provisions contained in  s. 14P  and s. 14U are without which the whole object of  enacting Chapter  II  for  the  imposition  of  a ceiling on  agricultural holdings would have been completely frustrated. [1236 G-H, 1237 A-B]      (11) The  expression "agricultural land" is wide enough to include an orchard. Therefore an orchard as defined in s. 14O(2) does  not come  within the  definition of  land in s. 2(7). Any contrary construction would imply that there would be no  ceiling on  agricultural holdings  in large tracts of land in  the district of Malda which is famous for its mango orchards. The  legislature by  enacting s. 14O(2) treats the land comprised  in orchards as falling within the purview of s. 14M,  but having  regard to  the fact  that  there  is  a sufficient cluster  of fruit-bearing  trees in  an  orchard, which  precludes  the  utilisation  of  the  land  comprised therein  or   substantial  portion   thereof  for  effective cultivation 1215 allows an  additional area  of 2  standard hectares for each raiyat. There is nothing wrong in the provision contained in s.  14O(2).  On  the  contrary,  it  is  a  very  reasonable provision. [1237 G-H, 1238 A-C]      (12) Section 14V provides that compensation for vesting of any land in the State under the provisions of Chapter IIB shall be  determined on  the principles and in the manner as specified  in   Chapter  III   of  the  West  Bengal  Estate Acquisition Act,  1953.  The  absence  of  a  provision  for payment of  compensation in  respect of  orchards in Chapter III of  the West  Bengal Estates  Acquisition Act, 1953 does not mean  that no compensation is to be determined or is not payable under s. 14V. In such a case, the general provisions relating  to   payment  of   compensation  in   respect   of acquisition of  land will apply. The principle on which, and the manner  in which,  compensation is  to be determined and given are  set out in ss. 16 and 17. Section 16 provides for computation the  net  annual  income  of  land.  Section  17 provides that the amount of compensation shall be a multiple of the  net annual  income, the  multiple depending upon the extent of  income. The  multiple ranges  from two  to twenty times. The  compensation has  to be  calculated according to the graded  scale in  the table  given in s. 17. [1238 E, H, 1239 A-B]      Where the  legislature has laid down the principles for computation, the  amount of  compensation is not justiciable after the  Fourth Amendment.  It  cannot  be  asserted  that compensation payable  for acquisition  of land  comprised in orchards in  excess of  the  ceiling  limit  in  s.  14O(2), according to the provisions of s. 14V is illusory. Where the law provides  for payment  of compensation as much as twenty times the  annual income,  it is  virtually the  capitalised value. The  petitioners who  own orchards  would, therefore, get much more as the income derived by them would be greater than the raiyats holding land in excess of the ceiling limit in s. 14M(2). [1239 B-D]      (13) The  definition of  ’land’ as contained in s. 2(7) is an  inclusive one  and it  means agricultural  land other than land  comprised in  a tea-garden and includes homestead but does  not include  tank. Therefore,  the  provisions  of Chapter IIB  shall apply  where the homestead is included in the record  of rights  as forming  part of  an  agricultural holding. Agricultural  holding  or  a  raiyat  includes  his homestead and the raiyat can retain land including homestead under s.  14M(1) up to 7 standard hectares in irrigated area

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and 8.9  standard hectares  in unirrigated  areas. A  raiyat would be entitled to get compensation under s. 14B according to the  principles specified  in Chapter  III  of  the  West Bengal Estates Acquisition Act, 1953. [1239 D-F]      (14) Raiyats  are entitled  to  retain  the  homestead, Normally raiyats  would not  be affected  as they  would  be allowed to  retain their  homesteads as  falling within  the ceiling limits allowed under s. 14M. [1239 G-H]      Provisions have been made in s. 16(1)(a) of the Estates Acquisition Act  and also  in Rule 15(b) and (d) of the West Bengal  Estates  Acquisition  Rules,  1954  to  provide  the procedure for arriving at the compensation for any homestead if such  homestead falls within the category of agricultural land, i.e.,  where it  is so entered in the record of rights as part  of agricultural holding of a raiyat. If a homestead is entered  in the record of rights as non-agricultural land or as a part of a non-agricultural holding, it does not come within the  purview of the Act, and, therefore, the question of vesting  of such  homestead does  not arise.  A raiyat is within his  rights to  retain land  upto the  ceiling  limit applicable to 1216 him in  accordance with  s. 14M and s. 14T. Thus a raiyat is at liberty to retain his homestead and not to allow it to be vested in  or acquired  by the  State under  the Act.  It is expected that normally raiyats would retain their homesteads and, therefore,  the question  of ousting  them  from  their homesteads does  not arise  at all.  In other  cases,  where raiyats willingly  give up  their homestead  to be vested in the State,  i.e., to  be  acquired  by  the  State,  without desiring  to   retain  the  same  within  the  ceiling  area applicable to  him, the  question of payment of compensation will rise  and in such cases, compensation would be computed in  accordance   with  s.   16(1)(a)  (ii)  of  the  Estates Acquisition Act  read with Rule 15(b) and (d) of the Estates Acquisition Rules. [1240 A, D, E, F-H]      (15) The  power of  eminent domain which is inherent in every sovereign  State, must  be capable  of being exercised against every  property held  by any  person in  the  State. Being a  fundamental attribute  of sovereignty  of State one Cannot imagine that the framers of the Constitution intended to divest  the State of that attribute by implication in the case of  property owned  by a  private trust.  Just  as  the property of  a private trust is held subject to law imposing a tax  upon it,  so also  is that  property subject  to  the eminent domain of the State. [1241 C-D]      All that  s. 14M(5)  provides is  that land  owned by a trust of  endowment other  than of  a public nature shall be deemed to  be land  owned by the beneficiary of the trust or endowment, and each such beneficiary shall be deemed to be a raiyat under  the Act  to the  extent of  the share  of  his beneficial interest  in the said trust or endowment. What is of essence  is the  capacity in which the land is held. If a raiyat is  a beneficiary  of a  private trust his beneficial interest consists  in the offerings or income. The provision in effect prescribes that the land should be clubbed for the computation of  the ceiling  area    under  s.  14M(1).  The imposition of  such a  ceiling would  no  doubt  reduce  the holding of  the trust but the Government has the power under s. 14O(3)  to increase  the ceiling  area in  certain cases. Where the  Government is  satisfied that  a  corporation  or institution established  exclusively  for  a  charitable  or religious purpose  or both,  for which  a ceiling  limit  is prescribed under  s. 14O(1)  or a person holding any land in trust or  in pursuance  of any  other endowment,  creating a

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legal obligation  exclusively for a purpose which charitable or religious,  or both,  requires land, as distinct from the income  of  such  land,  for  the  due  performance  of  its obligation, it may having regard to all the circumstances of the case,  increase the ceiling area for such corporation or institution or person to such extent as it may deem fit. The legislature has,  therefore,  provided  adequate  safeguards under s.  14O(3) to soften the rigour of the Act in relation to religious and charitable trusts. [1241 E-H, 1242 A]

JUDGMENT:      ORIGINAL JURISDICTION  : Writ  Petition  Nos.  111-114, 201, 208 738, 885 and 944 of 1979.      (Under Article 32 of the Constitution).      B. K.  Datta and S. S. Majumdar and Mrs. Lakshmi Arvind for the Petitioners in WP Nos. 111-114 & 208.      D. P.  Mukherjee and  A. K. Ganguli for the Petitioners in WP No. 944.      M. N.  Phadke, Amlan  Ghosh and  Mir Mohammed Asfia for the Petitioners in WP 738. 1217      M. N.  Phadke, P.  K. Sahana  and Sukumar Ghosh for the Petitioners in WP 885.      L. N. Sinha, Att. Genl. S. N. Kaker, Govind Mukhoty and Rathin Das for the Appearing Respondents.      P. K. Pillai for the applicant intervener in WP 208.      The Judgment of the Court was delivered by      SEN J.  In this  batch  of  writ  petitions,  the  main question  that  falls  for  determination,  is  whether  the provisions of  Chapter IIB  of the  West Bengal Land Reforms Act, 1955  (Act X  of 1956) inserted by the West Bengal Land Reforms (Amendment) Art, 1971 (President’s Act III of 1971), and replaced  by the  West Bengal  Land Reforms  (Amendment) Act, 1972  (Act XII  of 1972) with retrospective effect from February 15,  1971, which  provide for a fixation of ceiling on agricultural  holdings and for matters ancillary thereto, are violative  of the  second proviso to Art. 31A (1) of the Constitution.      The challenge  in particular  is to the validity of the definition of  the term ’family’ contained in s. 14K(c), the fixation of  ceiling limits of a raiyat under s. 14M(1), the provision for  lands held  by the  members of a family being clubbed under  s. 14M(2),  the avoidance  of transfers by s. 14P, the  fixation of  a ceiling  limit on orchards under s. 14O(2), the  vesting of  surplus land  in the State under s. 14S(1), the  penal consequences for failure to file a return provided for  in s.  14T(4), the imposition of a restriction on transfers under s. 14U and the absence of a provision for payment of  compensation for  acquisition of homestead under s. 14V.      It would be convenient to refer, in the first place, to the legislative  changes brought  about in the State of West Bengal in  furtherance of the Directive Principles enshrined in Art. 39(b). Agrarian reform was undertaken in two stages. The first  was the  stage  of  abolition  of  the  zamindari system. The West Bengal Estates Acquisition Act, 1953 (Act I of 1954)  which received  the assent  of the   President  on February 12, 1954, and has been placed in the Ninth Schedule as item No. 59, was an Act to provide for the acquisition of estates, of  rights of intermediaries therein and of certain rights  of   raiyats  and   under-raiyats.  By   virtue   of notification under  s. 4  issued on April 14, 1955 declaring April 15,  1955 to  be the  date of vesting, the estates and

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the rights  of intermediaries  therein, vested  in the State free  from  all  encumbrances  from  that  date.  Section  5 provided that  on and  from the date of vesting, the estates and the  rights of  intermediaries in the estates shall vest in the State free from all encum- 1218 brances.  Section   6(1)  provided   that,   notwithstanding anything contained  in ss.  4 and  5, an intermediary shall, subject to  certain conditions,  be entitled  to retain  (a) land comprised  in homesteads,  (c) non-agricultural land in his khas  possession not  exceeding 15  acres in  area,  and excluding any  land retained under cl. (a), (d) agricultural land in  his khas possession not exceeding twenty-five acres in area,  as may  be chosen  by him, (e) tank fisheries, and (f) land  comprised in  tea gardens or orchards or land used for the  purpose of  livestock breeding,  poultry farming or dairy  etc.   Sub-section  (2)  thereof  provided  that,  an intermediary who  was entitled  to retain  possession of any land under  sub-s. (1),  shall be  deemed to  hold such land directly under  the State  from the  date of  vesting  as  a tenant.      Chapter VI  of the West Bengal Estates Acquisition Act, 1953, which  provided for acquisition of interest of raiyats and under-raiyats,  however, did  not come into force on the publication  of   the  notification   under  s.  4  for  the acquisition of  estates and the rights of the intermediaries therein with effect from April 15, 1955. That was because s. 49 provided that this Chapter was to come into force on such date as the Government may by notification appoint. By s. 52 it was provided that on the issue of a notification under s. 49, the  provisions of  Chapters II,  III, V and VII were to apply, with  such modification  as may be necessary, mutatis mutandis to raiyats and under-raiyats as if such raiyats and under-raiyats were intermediaries and land held by them were estates. After  the  extinction  of  the  feudal  system  of zamindari the  big landlords  became intermediaries,  but by virtue of  s. 6(1)(a),  (c), (d),  (e) and  (f),  they  were entitled  to  retain  land  comprised  in  homesteads,  non- agricultural land in their khas possession not exceeding 15, acres, agricultural  lands  in  their  khas  possession  not exceeding 25 acres, tank fisheries and land comprised in tea gardens  or  orchards  or  land  used  for  the  purpose  of livestock breeding,  poultry farming  or dairy.  Under    s. 6(2), they  became tenants  of the State. The stage was thus set  for   the  imposition  of  a  ceiling  on  agricultural holdings.      The West  Bengal Land Reforms Act, 1955 (Act X of 1956) came into force on March 31, 1956. The object and purpose of the Act, as reflected in the preamble, was to reform the law relating to  land tenure  consequent on  the vesting  of all estates and of certain rights therein in the State. This was followed by  a Notification  issued by  the State Government under s. 49 of the West Bengal Estates Acquisition Act, 1953 on April 9, 1956. As a result of the notification s. 49, the petitioners who are raiyats, were deemed to 1219 be ’intermediaries’  and the  lands owned  and possessed  by them as  estates, and  all the  lands and  the  petitioners’ rights in  such lands  vested in  the State with effect from April 10,  1956. But  the petitioners as intermediaries were permitted to retain the lands as provided for in s. 6(1).      This state of affairs continued till February 12, 1971, when the  West Bengal  Land Reforms  (Amendment)  Act,  1971 (President’s Act  III of  1971) came  into force.  This  was replaced in  due course,  by the  West Bengal  Land  Reforms

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(Amendment) Act,  1972 (Act  XII of 1972) with retrospective effect from  February 12,  1971. These  Acts brought about a drastic  change   by  introducing   Chapter  II  B  for  the imposition of  a ceiling  on  agricultural  holdings.  As  a necessary consequence the Acts deleted s. 4(3) as well as s. 6. As  a result  of the  deletion of  s. 4(3),  the right of retention of  raiyats of agricultural lands to the extent of 25 acres was taken away and the deletion of s. 6(2) relieved the  State  of  the  obligation  to  pay  market  value  for acquisition of the surplus land.      West Bengal  Land Reforms Act, 1955 (Act X of 1956) and the West  Bengal Land Reforms (Amendment) Act, 1972 (Act XII of  1972),   which  introduced   Chapter  XIB  therein  with retrospective effect  from February 12, 1971, have both been placed  in   the  Ninth   Schedule   by   the   Constitution (Thirtyfourth Amendment)  Act, 1974  being items  60 and  81 thereof. They  have thus  the immunity  of Art. 31B, besides being full protected under Arts. 31A and 31C.      Learned counsel  for the petitioners, however, seeks to achieve a  break-through in  three ways. In the first place, he contends  that Art.  31A is  not attracted because of the breach of  the second  proviso to  Art. 31A(1)  inasmuch  as Chapter IIB  provides for  acquisition of  land  within  the ceiling limits  applicable to the petitioners without making provision for  payment of  compensation at the market value. In the  second place, he argues in the alternative, that the Parliament cannot in exercise of its constituent power under Art. 368 validate a State law. Thirdly, he tries to get over Arts. 31B  and 31C  on the  ground that  in so  far  as  the provisions of Chapter IIB are inconsistent with or take away or abridge  the  fundamental  right  to  acquire,  hold  and dispose of  property, they  affect the  ’basic structure’ of the Constitution.  Even if  the right  to property  does not from a basic structure of the Constitution, he contends that Chapter IIB is bad as it offends Arts. 14 and 31.      It is  urged that  the lowering  of the ceiling area of agricultural holdings  by s.  14M from  25 acres,  which the petitioners as raiyats 1220 were entitled  to retain  under s.  4(3) of  the Act,  since deleted by the President’s Act 3 of 1971 and Act 12 of 1972, to seven standard hectares, in the case of a raiyat having a family consisting  of more than five members infringes Arts. 14, 19(1)  (f) and 31(2) of the constitution. The submission is that  such lowering of the ceiling area, in the case of a raiyat, is  tantamount to  acquisition of  land, within  the ceiling limits  applicable to  him and, therefore, s. 14V of the Act which provides for payment of compensation according to the  provisions contained  in Chapter  III  of  the  West Bengal Estates Acquisition Act, 1953, and not for payment of compensation at  a  rate  equivalent  to  the  market  value thereof, offends against the second proviso to Art.31A(1).      Various other  questions  are  also  raised  viz.,  the artificial definition of family contained in s. 14K(c) bears no reasonable nexus with the traditional concept of a family in West Bengal. The acquisition of orchards as defined in s. 14K(e), for  which a  ceiling area  is fixed at 2.0 standard hectares by  s. 14O(2)  is ultra vires the State Legislature as orchards  cannot be  treated as  land as defined in 2(7). The taking  away of  homesteads, which  the petitioners were entitled to  retain under s. 6(1) of the West Bengal Estates Acquisition Act  without making any provision for payment of market value  thereof  deprives  them  of  property  without payment of  compensation in  violation of  Art.  31(2).  The provisions of  s. 14P  which provide that in determining the

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ceiling  area   any  transfer  effected  by  sale,  gift  or otherwise or  by a  partition by  a raiyat  after August  7, 1969, but  before the  date of  publication in  the Official Gazette of President’s Act 3 of 1971, i.e., February 8, 1971 shall be  taken into  account as  if such  land had not been transferred or  partitioned, as  the case may be, in effect, virtually amounts  to taking away of land within the ceiling area prescribed for him by s. 14M and is thus bad.      It is further urged that the restriction on transfer of land by  a raiyat  imposed by  s.  14U  is  an  unreasonable restriction and,  therefore, offends against Art. 19(1) (f). The validity  of s.  14(5) by  which property belonging to a private trust  or  endowment,  is  treated  to  be  property belonging to  the beneficiaries,  i.e., shebaits,  and  each such shebait  to be  a raiyat  to the extent of the share of his beneficial  interest in  the said trust or endowment, is assailed on  the ground  that it  abridges  the  fundamental rights guaranteed  by Art.  26.  Lastly,  it  is  said,  the fixation of  a ceiling  area by  s. 14M,  at  a  flat  rate, irrespective of  the nature  and quality of the soil at 2.50 standard hectares  in the case of a raiyat, who is an adult, unmarried 1221 person, or  the sole  surviving  member  of  a  family;  5.0 standard hectares  in the  case of  a raiyat having a family consisting of  two or  more members,  but not more than five members, and  7.0 standard  hectares in the case of a raiyat having a  family consisting  of more  than five  members, is wholly arbitrary, unreasonable and void.      Chapter IIB  consists of  ss. 14J  to 14Y and bears the heading Ceiling  on Holdings’. The scheme of this chapter is as follows:  Section 14J  gives to  the provisions  of  this Chapter on  over-riding effect  by  a  non-obstante  clause. Section 14K  deals with  the definition of the terms used in various sections.  The expression  "ceiling area" as defined in cl.  (a) means the extent of land which a raiyat shall be entitled to  own. The  definition of ’charitable purpose’ in cl. (b)  is an  inclusive one  and it includes relief of the poor, medical  relief or  the advancement of education or of any  other  object  of  general  public  utility.  The  term ’family’  is   defined  in   cl.  (c),  and  the  expression ’irrigated area’  in cl.  (d). The term ’orchard’ is defined in cl. (e) and the expression ’standard hectare’ in cl. (f). Section 14L  provides that,  on and  from the  date  of  the commencement of the provisions of Chapter IIB of the Act, no raiyat shall  be entitled to own, in the aggregate, any land in excess of the ceiling area applicable to him under s.14M.      The provisions of s. 14M lay down the ceiling area with respect to  different classes  of raiyats and it varies from 2.50 standard  hectares depending  on whether he is an adult unmarried person  to 7.0  standard hectares,  if  he  has  a family consisting  of more  than five  members.  This  again varies  depending  upon  the  nature  of  the  land  as  the expression ’standard  hectares’  as  defined  in  s.  14K(f) means, in  relation to  an agricultural  land, an  extent of land equivalent  to 1.00  hectare in  an irrigated  area and 1.40 hectares  in any  other area.  Section 14N provides for the determination  of irrigated area and s. 14O provides for an appeal  against such  determination. Section 14P provides that in  determining the  ceiling area,  any land  which was transferred by  sale, gift or otherwise or partitioned, by a raiyat  after  August  7,  1969,  but  before  the  date  of publication in the official Gazette, of the West Bengal Land Reforms (Amendment)  Act, 1971, i.e., February 8, 1971 shall be  taken  into  account  as  if  such  land  had  not  been

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transferred or partitioned, as the case may be.      The ceiling  area for  a co-operative society, company, co-operative farming  society, Hindu  undivided family  of a firm, is  provided for  by sub-s. (1) of s. 14O. Sub-section (2) thereof prescribes the ceiling area of an orchard at 2.0 standard hectares or the actual 1222 area comprised  in such  orchard whichever  is  the  lesser. Subsection (2A)  provides that in determining a ceiling area of trust  or institution  of a  public  nature,  established exclusively for  a charitable  or religious purpose or both, the  number  of  its  centres.  or  branches  in  the  State established before August 7, 1969 which do not hold any land as a raiyat shall be taken into account and each such centre or branch  shall be deemed to be a raiyat for the purpose of cl. (e)  of sub-s.  (1) of  s. 14M,  but the ceiling area of such trust  or institution shall not exceed the sum total of the ceiling  area of  each such  centre  or  branch  and  of itself.  Sub-section   (3)  provides   that,  if  the  State Government after  having regard  to all the circumstances of the case,  is satisfied  that a  corporation or  institution established  exclusively   for  a  charitable  or  religious purpose, or  both, or a person holding any land in trust, or in pursuance  of  any  other  endowment,  creating  a  legal obligation exclusively  for a purpose which is charitable or religious, or  both requires  land,  as  distinct  from  the income derived  from such  land, for  the due performance of its obligation,  it may,  by notification  in  the  official Gazette, increase  the ceiling  area of  such corporation or institution or person to such extent as it may think fit.      Section 14R confers exemption from the provisions of s. 14M to  certain classes of raiyats like a local authority or any body or authority constituted or established by or under any law  for time  being in  force. The  vesting of  land in excess of  ceiling area  is provided for by s. 14S, the duty of raiyat to furnish a return is enjoined by s. 14T. Section 14U interdicts  that, except where he is permitted, a raiyat owning land  in excess of the ceiling area applicable to him under s.  14M, shall  not,  after  the  publication  in  the Official Gazette,  of the Act, i.e., after February 8, 1971, transfer by  sale, gift  or otherwise or make a partition of land owned  by him  or any  part thereof,  until the  excess land, which  is to  vest in the State under s. 14S, has been determined and  taken possession  of by and on behalf of the State.      Section 14V  lays  down  the  mode  of  computation  of compensation payable  for the vesting of the surplus land in the State.  Section 14W  provides for payment of damages for use and  occupation of land in excess of the ceiling area by a raiyat  if he  continues to  possess such  land after  the commencement  of   Chapter  IIB.   Section  14X   bars   the jurisdiction of  the Civil Courts to decide or deal with any question or  determine, any matter which is by or under this Chapter required  to be  decided or  dealt  with  or  to  be determined by  Revenue Officer  or other authority specified therein and  no orders passed or proceedings commenced under the provisions of this 1223 Chapter shall  be called  in question  in any  Civil  Court. Section 14Y  provides that if after the commencement of this Chapter, any  raiyat acquires any land, whether by transfer, inheritance or  otherwise, and  such land, together with the land owned  by him,  exceeds the  ceiling area applicable to him under  s. 14M,  the area  of land  which is in excess of such ceiling  area shall  vest in  the  State  and  all  the

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provisions of  this Chapter  relating to  ceiling on holding shall apply to such land.      The principal  question for consideration in these writ petitions  is,   whether  in   view  of   Art.  31A  of  the Constitution, any  of the  provisions  of  Chapter  IIB  can successfully be  impugned for  the reason  that they violate the fundamental  rights of  the petitioners  under Arts. 14, 19(1) (f) and 31(2).      Both  Arts.   31A  and   31B  were  introduced  by  the Constitution (First  Amendment) Act, 1951 with retrospective effect with a view to validate zamindari abolition Acts, and confer  immunity  from  challenge  in  Courts.  It  must  be remembered  that  the  First  Amendment  was  by  the  First Parliament, i.e.,  by the  Founding  Fathers  who  were  the members of  the Constituent  Assembly. They  having given to the citizen  the  rights  guaranteed  by  Part  III  of  the Constitution, felt  that ’primacy’  must be given to certain legislations, particularly  the laws  relating  to  agrarian reform, over the enjoyment by the citizen of his fundamental rights. It  was with that object that Art. 31A was designed, i.e. in  order to  facilitate agrarian  reform  as  well  as social control of the means of production.      By 1955,  when the  Fourth Amendment  was adopted,  the abolition of  zamindari had  been in large part accomplished throughout the  country except  in the state of West Bengal. There remained,  and were to remain for many years, the next stage  of  agrarian  change-the  imposition  of  ceiling  to prevent large  holdings,  the  consolidation  of  fragmented holdings, and  the development  of  village  panchayats  for effective village  planning and management. The statement of objects and Reasons clearly brought out the intention of the Government,  to  immunize  State  legislations  relating  to imposition of  ceiling on  agricultural  holdings  from  the usual compensation  required or  other requirements  of  the fundamental rights  guaranteed under  Part III,  which  were most likely  to be invoked-Arts. 14, 19 and 31. The new Art. 31A, as  revised by  the Fourth  Amendment in  1955 was in a sense less  sweeping than  the provision  introduced by  the First Amendment,  exempting laws  from the  effect  of  only three of the fundamental rights-Arts. 14, 19 and 31, instead of the entire Part III, which contains all the rights. 1224      The Constitution (Seventeenth Amendment) Act, 1964 made important changes  in the  definition of  ’estates’ in  Art. 31A(2) in  order expressly to include ryotwari interests and measures affecting  all  kinds  of  land  held  or  let  for purposes of agriculture or for purposes ancillary thereto.      Article 31A(1),  as it  stands, provides  that  no  law providing for  acquisition  of  any  estate  or  any  rights therein or  the modification  or extinguishment  of any such rights in an estate shall be deemed to be void on the ground that it  violates the  fundamental rights under Arts. 14, 19 and 31.  Undoubtedly, Art.  31A is attracted when the law in question is one for agrarian reform.      By adding  a proviso  to Art. 31A(1), which, it will be recalled, states  that no law providing for the acquisition, modification  or   extinguishment  of   property  rights  of specified  kinds   (including  acquisition   of  estates  or modification of  rights therein)  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 Arts. 14, 19 or 31, a change was brought about. It reads:           "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

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    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 be less than      the market value thereof."      The Act  is a  piece of social legislation for agrarian reform. The  object of  the legislation  is to  break up the concentration of  ownership  and  control  of  the  material resources of  the community and to so distribute the same as best to sub-serve the common good, as enjoined by Art. 39(b) of the  Constitution. Having  regard to the quantity of land available in the State of West Bengal, which has the highest per capita  density in the whole of the country, the ceiling limits appear  to be  reasonable  and  fair.  For  equitable distribution of  the natural  resources, it was essential to design the  act as  it  is  so  that  the  surplus  land  is available for  distribution to  the landless  peasantry. The Act makes  available to  each person of the community living below the  poverty line, to some extent the minimum means of subsistence.  In   order,  therefore,   to   reconcile   the fundamental rights of the community as a 1225 whole with  the individual  rights  of  the  more  fortunate section of  the community, it was fundamentally necessary to make the  impugned legislation to secure to a certain extent the rights of that part of the community which is denied its legitimate share in the means of livelihood.      The broad  objectives of  any legislation  relating  to agrarian reforms  are materially  four viz., (1) to maximise the agricultural  output and  productivity, (2)  a fair  and equitable distribution  of agricultural income, (3) increase in employment  opportunities, and  (4) a  social or  ethical order. Though  the abolition  of the zamindari system in the State of  West Bengal  was an  important step  forward,  the feudal structure  remained  so  far  as  the  peasants  were concerned.  These  objectives  have  been  achieved  through progressive legislation.      It is argued that sub-s. (1) of s. 6 of the West Bengal Estates Acquisition Act, 1953 imposed a ceiling on holdings, as it  allowed all  intermediaries to  retain  25  acres  of agricultural land  in their  khas possession,  which  became applicable to  raiyats and  under-raiyats who were deemed to be such  intermediaries upon  the issue  of  a  notification under s.  49 on  April 14,  1956.  The  ceiling  limit  thus imposed was  continued by  sub-s. (3)  of s.  4 of  the West Bengal Land  reforms Act,  1955. One has to see, it is urged whether there  was a  law in  force, i.e.,  a law imposing a ceiling when  the West  Bengal Land Reforms (Amendment) Act, 1971 (President’s Act III of 1971) was brought into force on February  12,   1971  or   the  West   Bengal  Land  Reforms (Amendment) Act,  1972 (Act  XII of  1972) which replaced it with retrospective  effect from that date. Once that test is fulfilled it  is said,  the second proviso to Art. 31A(1) is clearly attracted.  It is, further urged that if the ceiling limit of  a raiyat in respect of agricultural land under his personal cultivation  is curtailed  by  any  subsequent  Act prescribing a  new ceiling  limit, it becomes obligatory for the State  to give  market value  with regard  to  the  land acquired under the new Act.      The  submission   rests  on  the  assumption  that  the expression ’any  law for the time being in force’, appearing

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in the  second proviso to Art, 31A(1) must mean here in this case the  West Bengal  Estates Acquisition  Act,  1953.  Our attention is  drawn to  s. 52  which provides  that upon the issue of  a notification  under s.  49,  the  provisions  of Chapters II,  III, V  and VII shall, with such modifications as may  be necessary,  apply mutatis mutandis to raiyats and under-raiyats as  if such  raiyats  and  under-raiyats  were intermediaries and  the land  held by  them were estates. We are afraid,  we cannot  accept this line of reasoning. There is an apparent fallacy in the argument. 1226      Such a  construction, if  we may say so, would create a serious impediment  to any  kind  of  agrarian  reform.  The ceiling  on  agricultural  holdings  once  fixed  cannot  be static, unalterable  for all  times. The expression ’any law for the  time being  in force’,  obviously refers to the law imposing ceiling.  Here it  is the  West Bengal Land Reforms (Amendment) Act,  1971 (President’s Act III of 1971) and now the West  Bengal Land Reforms (Amendment) Act, 1971 (Act XII of 1972) which introduced Chapter IIB imposing a new ceiling on agricultural holdings of raiyats. That is the law for the time being  in force,  and no  land is being acquired by the State under  s. 14L  within the  ceiling  limits  prescribed therein.      It will  be noticed  that the  second proviso  to  Art. 31A(1) refers  to the  ’ceiling limit  applicable  to  him’, which evidently  refers to  the  law  in  question  and  not earlier law,  that is  s. 5(1)  of the  West Bengal  Estates Acquisition Act,  1953. It will be noticed that both s. 4(3) and s.  6(2) of the West Bengal Land Reforms Act, 1955 stood deleted by  the West  Bengal Land  Reforms (Amendment)  Act, 1971 (President’s  Act III  of 1971)  and thereafter  by the West  Bengal   Land  Reforms   (Amendment)  Act,  1972  with retrospective effect from February 12, 1971.      The point  in controversy is no longer res integra. The question directly came up for consideration in Kunjukutty v. State of  Kerala(1) and  Malankara Rubber and Produce Co. v. State of  Kerala.(2) In Kunjukutty’s case the Court disposed of a  contention similar  to that  raised before  us. It was urged that  when the  Kerala  Land  Reforms  Act,  1963,  as amended by the Kerala Land Reforms (Amendment) Act, 1969, by s. 82  reduced the  ceiling limit  and required surrender of the land  held in excess of the limit fixed by the Amendment Act, without  payment of  compensation at  market value,  it violated the  constitutional  inhibition  contained  in  the second proviso  to Art. 31A(1). In repelling the contention, it was observed:           "It was  not disputed that the ceiling limit fixed      by the  amended Act  was within  the competence  of the      legislature to  fix; nor  was  it  contended  that  the      ceiling fixed  by the  original unamended Act by itself      debarred the  legislature  from  further  reducing  the      ceiling  limit   so  fixed.   Prior  to  the  amendment      undoubtedly no  land within the personal cultivation of      the holder  under the  unamended Act within the ceiling      limit fixed  thereby could  be acquired without payment      of compensation according to the market value, but once      ceiling limit  was changed  by  the  amended  Act,  the      second proviso to Art. 31- 1227      A(1) must  be held  to refer  only to  the new  ceiling      limit fixed  by the  amended  Act.  The  ceiling  limit      originally fixed  ceased to exist for future the moment      it was  replaced by  the amended  Act. The  prohibition      contained in  the second  proviso operates  only within

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    the ceiling  limit fixed under the existing law, at the      given time."      In Malankara  Rubber &  Produce  Co’s  case  the  Court rejected a  similar contention based upon the second proviso to Art. 31A(1), observing:           "’Ceiling area’  is covered  by s.  82. Such  area      with regard  to unmarried persons and families fixed by      the 1963  Act was cut down considerably by the Amending      Act of  1969. It  was.. that this was hit by the second      proviso to  Art. 31-A(1) inasmuch as the ceiling having      once been  fixed by  the 1963 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. ...      The contention that reduction in the ceiling area fixed      by the 1963 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 Art.  31-A can refer      only to the limit imposed by the law which fixed it and      not any earlier law which is amended or repealed."                                     (Emphasis supplied)      This furnishes  a complete  answer  to  the  contention raised on  the second  proviso to  Art. 31A(1).  The ceiling limit introduced  by s.  14M 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  Art.  31A(1).  That  being  so,  the provisions of  Chapter IIB  have the constitutional immunity of Art. 31A and cannot be challenged on the ground that they are inconsistent  with, take away or abridge the fundamental rights guaranteed by Arts.14, 19(1) (f) of 31(2). Even if it were not  so, they would be under the protective umbrella of Art. 31B.  Indubitably, the  provisions of Chapter IIB are a law related to agrarian reform and thus protected.      It is  necessary here  to mention  that in Kunjukutty’s case Explanation to s. 85(1) of the Kerala Land Reforms Act, 1963 was  challenged as offending the second proviso to Art. 31A(1).  Under   the   Explanation,   subject   to   certain exceptions, any land transferred by 1228 a person  holding in  excess of  the  ceiling  area  between certain dates,  was to be regarded as held by the person for the  purpose  of  fixing  the  extent  of  the  land  to  be surrendered by  him and  such surrender was to be out of the land still  held by  him. The  Kerala High Court struck down the said  provision as  offending the second proviso to Art. 31A(1) observing:           "If a  fiction by  which land not held by a person      could be  taken into  account for  the determination of      the excess  land to be surrendered by him, and he could      be forced  to  surrender  land  actually  held  by  him      although it is within the ceiling limit without payment      of  the  market  value  thereof,  were  permitted,  the      proviso in question could easily be rendered nugatory." This Court  upheld  the  decision  of  the  High  Court  and observed:           "It is  clear that by virtue of the second proviso      to  Art.  31A(1)  land  within  the  ceiling  limit  is      expressly protected  against acquisition  by the  State      unless the  law relating  to such  acquisition provides      for compensation  which is  not less  than  its  market      value.  No  attempt  was  made  to  take  the  impugned      explanation out  of this constitutional inhibition. We,

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    therefore, do  not find  any reason  to differ from the      conclusions of the High Court."      After the  judgment of  the High Court, the Kerala Land Reforms (Amendment)  Act, 1971  was enacted. When this Court in Kunjukutty’s  case upheld  the judgment of the High Court striking down the explanation to s. 85(1) of the Kerala Land Reforms Act,  1963, Parliament  by the Constitution (Twenty- Ninth Amendment) Act, which was assented to by the President on June  9, 1972,  inserted both  the  Kerala  Land  Reforms (Amendment)  Act,   1969  and   the  Kerala   Land   Reforms (Amendment)  Act,   1971  in   the  Ninth  Schedule  to  the Constitution.  The   challenge  to   the  validity   of  the Constitution (Twenty-Ninth  Amendment) Act was allowed to be raised as  an additional  ground in  Kesvananda  Bharati  v. State of  Kerala(1) and  the Court by majority of 7:6 upheld the validity of the Twenty-Ninth Amendment.      By parity  of reasoning,  it must follow as a necessary corollary that the West Bengal Land Reforms Act, 1955 (Act X of 1956)  and the  West Bengal Land Reforms (Amendment) Act, 1972 (Act  XII of 1972) which introduced Chapter IIB therein with retrospective  effect, from  February 15,  1971, having been placed in the Ninth 1229 schedule by  the Constitution (Thirty-Fourth Amendment) Act, 1974, as  items 60  and 81 thereof, their validity cannot be questioned  under   Art.   31B.   The   challenge   to   the constitutional  validity   of  Art.  31-B  as  well  as  the Constitution Amending  Act, whereby the concerned enactments were put  in the  Ninth Schedule  on the  ground that  these violate the  basic structure of features of the Constitution has been  separately dealt  with and hence the same need not be discussed here.      As regards  the submission  that Parliament  cannot  in exercise of of its constituent power under Art. 368 validate a State  law, it  seems to  us that  the  entire  submission proceeds  on   a  mis-conception  arising  from  failure  to distinguish between  a law  made in  exercise of legislative power and the law made in exercise of the constituent power. When Art  31-B was  introduced in  the Constitution  by  the Constitution  (First  Amendment)  Act,  1951,  it  validated retrospectively 13  Acts specified  in the  Ninth  Schedule, which, but  for this  provision, were  liable to be impugned under Art.  13 (2).  Article 31-B  conferred  constitutional immunity  to  such  laws  (all  being  enactments  of  State Legislatures) and  Parliament alone  could have  done so  by inserting the  said Article  in the Constitution in exercise of its  constituent power  under Art.  368. In substance and reality it  was a  constitutional device employed to protect State laws  from becoming  void under  Art. 13  (2). It will appear clear  that the  language in  Art. 31-B  is virtually lifted from  Arts.  13  (1)  and  (2).  While  Art.  13  (2) invalidates legislation,  which takes  away or  abridges the rights conferred  by part III, Art. 31-B extends ‘protective umbrella’ to  such legislation  if it  is included  in Ninth Schedule and, therefore, the Courts will have no power to go into the  constitutionality of the enactments as included in the  Ninth   Schedule  except  on  the  ground  of  want  of legislative competence.      The challenge  to the  definition  of  ‘family’  in  s. 14K(c) is  based on  the submission that it is an artificial definition and  does not  take into account the concept of a family as  it exists  in West  Bengal. The  word ‘family’ as defined in s. 14K(c) is in these terms:           "(C) "family",  in relation  to a raiyat, shall be      deemed to consist of-

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         (i)   himself and  his wife, minor sons, unmarried                daughters, if any,           (ii) his unmarried adult son, if any, who does not                hold any land as a raiyat, 1230           (iii) his married adult son, if any, where neither                such adult son nor the wife nor any minor son                or unmarried daughter of such adult son holds                any land as a raiyat,           (iv) widow  of his  predeceased son, if any, where                neither such  widow  nor  any  minor  son  or                unmarried daughter  of such  widow holds  any                lands as a raiyat,           (v)   minor son  or unmarried daughter, if any, of                his predeceased  son, where the widow of such                predeceased son  is dead and any minor son or                unmarried daughter  of such  predeceased  son                does not hold any land as raiyat,      but shall not include any other person.           Explanation I.-For  the purposes  of this Chapter,      an adult  unmarried person shall include a man or woman      who  has  been  divorced  and  who  has  not  remarried      thereafter :           Provided that  where such divorced man or woman is      the guardian  of any  minor son, or unmarried daughter,      or both,  he or  she, together  with such  minor son or      unmarried daughter,  or both,  shall be  deemed to be a      separate family.           Explanation II.-References in this clause to wife,      son or daughter shall, in relation to a raiyat who is a      woman, be  construed as  references to the husband, son      or daughter, respectively of such woman,"      It is  argued that  the definition of ‘family’ does not take into  consideration the aged parents of a raiyat or his unmarried sisters. It is further argued that the Act suffers from the  vice that, the existence of a married son is taken into consideration  where neither  he nor  his wife  or  any minor son or unmarried daughter of such adult son holds land as a  raiyat for  the purpose of augmenting the holding of a raiyat, but  where in  the family  of a  raiyat there  is  a married adult  son holding  any land,  even a  fraction, the family is  denied the  benefit of  his existence.  In such a case the  effect is  the same  because under  s. 14M(2)  the ceiling area  of the  raiyat is still 7.0 standard hectares. To our mind, these submissions are wholly unfounded.      The definition of ‘family’ as contained in s. 14K(c) of the Act, is more realistic than the definitions of this term in similar  laws for  imposition of  ceiling on agricultural holdings enacted  in other  states. The  definition is  much wider, and far more generous and humane 1231 because it  takes into  consideration  the  existence  of  a widowed and  divorced daughter,  which is  absent  in  other Acts. The  meaning  given  by  Explanation  I  to  an  adult unmarried person  is an  inclusive one  and  it  includes  a daughter  who  has  been  divorced.  This  necessarily  also includes a  widowed daughter. By the proviso added to Expln. I, where  such widowed daughter is the guardian of any minor son or  unmarried daughter, or both, she, together with such minor son or unmarried daughter, or both, shall be deemed to be a separate family. She, therefore, is treated to a raiyat in her  own right  in relation to her family and her holding is not  clubbed with that of her father under s. 14M(2). The benefit provided to a divorced daughter would obviously also extend to  a widowed daughter. Explanation II deals with the

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spouse as  in relation to a raiyat who is a woman, reference in cl.  (c) to wife’s son or daughter, shall be construed as reference to  the husband’s son or daughter, respectively of such woman.  The legislature  on a  correct perspective  has enlarged the  definition of a family to the maximum possible extent, and provides for as many as nine members. We fail to appreciate the  submission that  normally in the family of a raiyat he  has his  parents to maintain. Such marginal cases would be  very few.  Normally, the  father of a raiyat would have his  separate  holding  and  would  be  entitled  to  a separate ceiling  area of  his own  determined under s. 14M. The legislature  had to  draw a line somewhere. By s. 14M(2) (b) it provided for augmenting of the holding of a raiyat to the extent  of 7.0  standard hectares by taking into account five plus four, i.e., nine members.      The creation  of an  artificial concept  of family  and making provision  for the  clubbing together of land holding of each member of the family are not violative of the second proviso to  Art. 31A(1),  and even  if they  were, they were protected by  Art. 31B.  This had necessarily to be done for the purpose  and object  of the legislation i.e., imposition of a  ceiling on agricultural holdings. One is apt to forget that the  provisions of Chapter IIB in the Act are a law for imposition of  ceiling on  agricultural holdings  of raiyats and are  not a  law for  enlargement of such holdings, i.e., these put  a limit  on the  maximum limit  of a holding of a raiyat. The  Act adopts  the individual  as the unit and not the family  and  allows  for  augmentation  of  his  holding depending upon the normal concept of a family.      It is,  however, urged that according to the definition of family  given in  s. 14K(c)  of a  raiyat, his  wife, his minor son  and the  unmarried daughter are included, but the adult son is not because he owns land and can form a unit by himself. According  to the  provisions of  s. 14M(1) (a) the adult unmarried son will be entitled to retain 2.50 1232 standard hectares,  and if  married, he  with his  wife  and children, may  retain 5.0  standard hectares;  but the minor son and  unmarried daughter,  as they  are included  in  the father’s family  will not be entitled to retain any land. We are afraid,  this cannot  be helped. There is no question of conferral of  any new  rights  on  minor  son  or  unmarried daughter, as  they would be included in the father’s family, who would  get a  much larger ceiling of 5.0 to 7.0 standard hectares, depending upon the number of children that he has. Nothing prevents  a minor son or the unmarried daughter of a raiyat, like  his parents,  from acquiring property of their own subsequently by inheritance or transfer.      Learned counsel  for the petitioners tried to highlight certain imperfections  in the  definition of family which he seems to  imagine. To illustrate, he speaks of a family of a raiyat having  his wife, three married adult sons (having no land of  their own),  having wives and three minor sons each and one unmarried daughter. The instance of the family given by him  consists of 18 members. According to s. 14M (2) (b), the raiyat  would be  entitled to  retain no  more than  7.0 standard hectares  i.e. 5.0 standard hectares for his family up to  five members  and 0.50  standard hectare per head for four other  members. Therefore,  we are  told that  in  this case, nine  members of  the family including minor sons, who have to  be brought  up, would  be entirely  deprived of the right to  hold property  or any  land. Further,  the counsel urges that  if the  three adult  sons died,  the raiyat will have to  maintain the  minor sons  of his  predeceased sons, besides the unmarried daughters, of his own. The legislature

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cannot be  expected to  provide for all these exigencies. It is difficult  to envisage  a family consisting of 18 members in present  times. Even  if there are any, they would not be better off even if Chapter IIB had not been enacted.      Section 14M of the Act, so far as relevant, reads :           "14M. Ceiling area-(1) The ceiling area shall be,-           (a)  in the  case of  a raiyat,  who is  an  adult                unmarried person, 2.50 standard hectares;           (b)  in the  case of  a raiyat,  who is  the  sole                surviving member  of a  family, 2.50 standard                hectares;           (c)  in the  case of  a  raiyat  having  a  family                consisting of  two or more, but not more than                five members, 5.00 standard hectares;           (d)  in the  case of  a  raiyat  having  a  family                consisting of  more than  five members,  5.00                standard hectares, plus 0.50 standard hectare                for each member in excess of 1233                five, so,  however, that the aggregate of the                ceiling area  for such  raiyat shall  not, in                any case, exceed 7.00 standard hectares;           (e)   in  the  case  of  any  other  raiyat,  7.00                standard hectares.           (2) Notwithstanding  anything  contained  in  sub-      section (1),  where, in  the family  of a raiyat, there      are more  raiyats than  one, the  ceiling area  for the      raiyat, together with the ceiling area of all the other      raiyats in the family shall not, in any case, exceed,-           (a) where  the number  of members  of such  family      does not exceed five, 5.00 standard hectares;           (b) where  such number  exceeds five 5.00 standard      hectares, plus 0.50 standard hectare for each member in      excess of  five, so, however, that the aggregate of the      ceiling area  shall  not,  in  any  case,  exceed  7.00      standard hectares.           (3) For  the purpose  of sub-section  (2), all the      lands owned  individually by the members of a family or      jointly by some or all the members of such family shall      be deemed to be owned by the raiyats in the family."      The expression  ‘standard hectare’  is  defined  in  s. 14K(f) as follows :-           (f) "Standard hectare" means,-           (i)   in relation  to  an  agricultural  land,  an                extent of land equivalent to-           (i)(a) 1.00 hectare in an irrigated area,              (b) 1.40 hectares in any other area;           (ii) in  relation to  any  land  comprised  in  an                orchard, in extent of land equivalent to 1.40                hectare."      The fixation  of ceiling  in case of a raiyat who is an adult unmarried  or the sole surviving member of a family at 2.50 standard  hectares and  in case  of a  raiyat having  a family consisting  of two  or more  but not  more than  five members at 5.0 standard hectares and in the case of a raiyat having a  family consisting of more than five members at 5.0 to 7.0 hectares is objected to as being wholly arbitrary and unreasonable. As  already stated, the extent of the holdings on which  ceiling is  fixed varies depending upon whether it is an  irrigated area  or any other area. We fail to see any arbitrariness and indeed there is no substantial decrease in the limit. One standard hectare is 1234 equivalent to  2.47 acres.  The ceiling  limits,  therefore, work out  to 6.18  acres in  the case  of an individual, and

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12.35 to  17.29 acres  of irrigated  land, in  the case of a family, which, in the Gangetic plains of West Bengal, is not small by  any standard.  In other  areas, the  ceiling limit varies from 8.64 to 24.2 acres. According to agro-ecnomists, an economic holding is of 5 to 7 acres.      It is  not possible  to lay  down a ceiling standard or prescribe one  limit in  terms of  fixed acreage for general application throughout the country. The productivity of land is not  the same  in all areas, due allowance has to be made for varying  local  conditions.  The  First  Five-Year  Plan suggested a ceiling limit to be fixed in terms of a multiple of a  family holding.  Following the  recommendations of the Congress Agrarian Reforms Committee, it recommended that the ceiling limit  of an  individual holding  should be fixed at three times the family holding(1). The Second Five-Year Plan endorsed this  recommendation. Each  State  was  to  specify according to conditions of different regions, class of soil, irrigation and  the area  of land  which was to constitute a family holding(2).  In implementation  of  the  policy,  the different States  adopted different  levels of  ceiling  and different basis  for its  application.  Some  States  put  a ceiling limit  on the  holding of  an individual owner while the others  imposed a  ceiling on  family  holding.  In  the States where  a ceiling  was imposed  on individual  holding there was  greater scope  for mala fide transfers than where the ceiling  was imposed  on the  aggregate area held by all the members  of the  family. In the latter case there was no inducement to  effect transfers  between the  members of the family,  as   their  share   had  already   been  given  due recognition.  But   when  the   comparative  advantages  and disadvantages of  the two alternative became apparent it was too late  to change  the stand  once taken.(3)  In the Third Five-Year   Plan,   the   Planning   Commission   therefore, recommended that  ceiling should be either invariably to the aggregate area  held by a family, rather than the individual (as many  of the transfers were effected between the members of the  family). Since  legislation had already been passed, in many  States, imposing ceilings on individual holdings it recommended  that   amendments  should   aim  primarily   at eliminating  deficiencies   and  facilities   implementation rather  than  at  introducing  fundamental  changes  in  the principles  underlying  the  legislation.  Accordingly,  the amendments provided  that transfers  after a prescribed date should be disregarded. 1235 The dates  so prescribed  were invariably a date anterior to the enactment  of law.  In some  cases it  was the  date  of publication of the Bill, while in others an earlier date was prescribed in  view of  the special  local  conditions.  The first draft  of the  Fourth Five-Year  Plan, while endorsing the earlier  view that  the  amendments  should  remove  the deficiencies, rather  than basically  change the  law, again suggested as follows:           "As transfers  take place  generally  between  the      members of  a family,  the States  might  consider  the      suggestion earlier  made by  the Panel  on Land  Reform      (and this  has already  been provided  in  some  laws),      namely, to apply ceilings to the aggregate area held by      all the  members of a family, rather than to individual      holdings, the  family being  defined to include husband      and wife, their dependent children and grandchildren."      We may  then  take  up  the  contention  regarding  the alleged invalidity  of s.  14P and  14U. The  fixation of  a back-date is a usual legislative device to prevent avoidance of change  brought about by law. There is no warrant for the

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submission that  the date  mentioned  in  s.  14P  bears  no reasonable  nexus   with  the   object  or  purpose  of  the legislation. The  West Bengal  Land Reforms (Amendment) Act, 1971, while  inserting Chapter  IIB enacted s. 14P providing that in  determining  the  ceiling  area  of  a  raiyat  any transfer effected  by  sale,  gift  or  otherwise  or  by  a partition by him after August 7, 1969 and before February 8, 1971, i.e.,  the date  of publication  of  the  Act  in  the Official Gazette  shall not  be taken  into account  and the land shall  be deemed  to form  part of  the holding  of the raiyat. By  a legal fiction, such transfers were presumed to be mala  fide as  they were calculated to defeat the ceiling law.      Learned counsel  appearing for  the State Government of West Bengal  has filed  a note explaining the reason why the date specified in s. 14P was August 7, 1969. It appears that the West  Bengal Land  Reforms (Second Amendment) Bill, 1969 was published  in the  Official Gazette on that date. Though the amendment primarily related to re-assessment of revenue, the concept of ’family’ was first sought to be introduced in the West  Bengal Land  Reforms Act  by that  amendment.  The land-holders, therefore,  had a forewarning that the concept of ’family’  may also come into play in the determination of ceiling area  of land.  Prior to  the  said  amendment,  the proposed legislation in ceiling adopted individual as a unit and not  the family. It needs no mention that unless a date- line is fixed in 1236 the matter  of ceiling  or similar agrarian reform, the very purpose of  the legislation  would be  frustrated. The scope and effect  of  s.  14P  are  that  all  agricultural  lands transferred after August 7, 1969 shall be taken into account in computing  the ceiling of the raiyat. The effect was that the ceiling  virtually imposed  treating the  family as  the unit in s. 14M(2) was given a retrospective effect by s. 14P with effect from August 7, 1969.      Section 14U provides that except where he is permitted, in writing, by the Revenue Officer so to do, a raiyat owning land in  excess of  the ceiling area applicable to him under s. 14M,  shall not,  after the publication of the Act in the official Gazette, i.e., February 8, 1971, transfer, by sale, gift or otherwise or make any partition of any land owned by him or  any part  thereof until the excess land, which is to vest in  the State  under s.  14S, has  been determined  and taken possession  of by  or on  behalf of  the  State.  Such provisions are  to be  found  in  all  the  Acts  passed  by different  States  relating  to  imposition  of  ceiling  on agricultural  land   and  indeed   they  are  essential  for implementing the scheme of the Act.      It will  be noticed  that in actual implementation, the provisions of these Acts were circumvented to a large extent by the  making of  fraudulent transfers. Transfers of rights in land  could be  effected by  one of  several ways such as sale, mortgage,  gift  and  exchange.  The  Act  by  s.  14P provides  that   transfers  effected   before  the  date  of publication of the Act and after August 7, 1969 shall not be taken into  consideration. The  legislature fixed  August 7, 1969 as the date from which all such transfers or partitions shall be  deemed to have been effected with the intention of defeating the  law. Such  transfers were presumed to be mala fide  as  they  had  taken  place  in  anticipation  of  the enactment and,  therefore, liable  to  be  ignored.  As  the ceiling was  fixed for  each individual  raiyat and  not the family, as  a unit,  there was  practically no  limit to the amount of  land that  could be held by a family in this way,

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and therefore,  the legislature  had to insert s. 14M(2) for their shares  to be  clubbed together.  There were plenty of reasons to  believe that  splitting of  big holdings between members of  the family had taken place on considerable scale in anticipation of the legislation.      As regards  s. 14U,  there is  no absolute  bar against transfers till  the determination  of the ceiling area under s. 14M.  The fundamental  right to acquire, hold and dispose of property  guaranteed under  Art. 19(1)(f)  was subject to the right  of the  State to  impose reasonable  restrictions under Art. 19(6). The legislature was fully competent to lay down the maximum limit of an agricultural hold- 1237 ing and  make ancillary provisions to make the law effective by avoidance  of transfers. These provisions contained in s. 14P and  s. 14U  thus appear  to be reasonable without which the whole  object of enacting Chapter IIB for the imposition of a  ceiling  on  agricultural  holdings  would  have  been completely frustrated.      It is  argued that an ’orchard’ as defined in s. 14K(e) does not  fall within  the definition  of ’land’ in s. 2(7), and, therefore, it could not be treated as agricultural land and hence  the  legislature  could  not  have  prescribed  a ceiling for  an orchard  under s.  14O(2)  by  two  standard hectares. Now  section 14O(2)  provides that  where a raiyat owns land,  comprised in orchard, 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. The term ’orchard’ as defined in s. 14K(e) reads:           "(e) "orchard" 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;" The word ’land’ is defined in s. 2(7) as:-           "(7) "land"  means agricultural  land  other  than      land comprised  in a tea-garden which is retained under      sub-section (3) of section 6 of the West Bengal Estates      Acquisition Act, 1953, and includes homesteads but does      not include tank." Some meaning has to be given to the words ’land comprised in orchards’ appearing  in s.  14O(2). For  the word  ’land’ we have to  read ’agricultural  land’ and  that brings  out the legislative intent.      It is  not right  to suggest  that land comprised in an orchard cannot  be treated  as  an  agricultural  land.  The meaning of  the expression  ’agricultural land’  as given in ’Words and  Phrases Legally  Defined, Vol.  I, p.  61,  runs thus:           "The  expression   ’agricultural  land’   includes      arable and  meadow land  and ground  used for  pastoral      purposes  or   for  market   or  nursery  gardens,  and      plantations and woods and orchards .... " Thus the  expression ’agricultural  land’ is  wide enough to include an orchard. It is, therefore, futile to contend that an orchard  as defined in s. 14O(2) does not come within the definition of land in s. 2(7). 1238 If such  a construction  were to  be adopted, it would imply that there  would be  no ceiling on agricultural holdings in large tracts  of land  in the  district of  Malda  which  is famous for  its mango  orchards. The legislature by enacting s. 14O(2)  treats the land comprised in orchards, as falling within the  purview of s. 14M, but having regard to the fact

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that there is a sufficient cluster of fruit-bearing trees in an orchard,  which precludes  the utilisation  of  the  land comprised therein,  or substantial  portion    thereof,  for effective cultivation,  allows an  additional  area  of  two standard hectares  for each raiyat. We find nothing wrong in the provision  contained in  s. 14O(2).  On the contrary, it appears to be a very reasonable provision.      It  is   argued  that  the  provision  with  regard  to imposition of  a ceiling  on orchards contained in s. 14O(2) is not  protected by  Art. 31A  as  the  land  comprised  in orchards cannot  be said  to be  agricultural land,  nor can acquisition of  land comprised  in orchards  be  a  part  of agricultural reform  as it  is not  held or  let out for the purpose of agriculture and, therefore, cannot be a part of a scheme of agrarian reform. The validity of s. 14O(2) putting on lands  comprised in  orchards is  assailed on  the ground that the  Act makes no provision for payment of compensation in respect of orchards.      Section 14V  provides that  compensation for vesting of any land  in the  State under  the provisions of Chapter IIB shall be  determined on the principles and in the manner, as specified  in   Chapter  III  of  the  West  Bengal  Estates Acquisition Act,  1953. It  is pointed  out  that  the  West Bengal Estates Acquisition Act, 1953 provided by s. 6(1) (f) that, notwithstanding  anything contained  in ss. 4 and 5 of the  Act,   for  the   vesting  of   estates  of  rights  of intermediaries therein,  and off  some rights of raiyats and under-raiyats, an  intermediary shall be entitled to retain, subject to  the provisions  of sub-s.  (3) land comprised in tea gardens  or orchards  or land  used for  the purpose  of livestock breeding,  poultry farming  or dairy.  Since  land comprised in  orchards did not vest in the State it is urged that no  provision was  made in  Chapter III  of the Act for payment of  compensation for  orchards. From  the absence of such a  provision, the learned counsel assumes that there is no provision  for payment of compensation for acquisition of land comprised  in orchards, fixing the ceiling limit of two standard hectares, under s. 14O(2).      The absence  of a provision for payment of compensation in respect  of orchards  in Chapter  III of  the West Bengal Estates  Acquisition   Act,  1953  does  not  mean  that  no compensation is  to be determined or is not payable under s. 14V. In such a case, the general 1239 provisions relating to payment of compensation in respect of acquisition of  land will apply. The principle on which, and the manner  in which,  compensation is  to be determined and given are  set out in ss. 16 and 17. Section 16 provides for computation the  net  annual  income  of  land.  Section  17 provides that the amount of compensation shall be a multiple of the  net annual  income, the  multiple depending upon the extent of  income. The  multiple ranges  from two  to twenty times. The  compensation has  to be  calculated according to the graded  scale in  the table  given in  s. 17.  Where the legislature has  laid down  the principles  for computation, the amount  of compensation  is not  justiciable  after  the Fourth Amendment.  It cannot  be asserted  that compensation payable for  acquisition of  land comprised  in orchards  in excess of  the ceiling  limit in s. 14O(2), according to the provisions of s. 14V is illusory. Where the law provides for payment of  compensation as  much as twenty times the annual income,  it   is  virtually   the  capitalised   value.  The petitioners who own orchards would, therefore, get much more as the  income derived  by them  would be  greater than  the raiyats holding  land in  excess of  the ceiling limit in s.

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14M(2).      There remains the question as to whether the provisions of Chapter  IIB must  be struck  down on  the ground that it permits the taking away of the homestead of a raiyat without payment of compensation. The definition of land as contained in s.  2(7) is  an inclusive one and means agricultural land other than  land comprised  in  a  tea-garden  and  includes homesteads but  does not include tank. There can, therefore, be no  doubt that  the provisions of Chapter IIB shall apply where the  homestead is  included in the record of rights as forming  part   of  an  agricultural  holding.  Agricultural holding of  a raiyat  includes his  homestead and the raiyat can retain  land including  homestead under  s. 14M(1) up to 7.0 standard  hectares in  irrigated area  and 6.9  standard hectares in  unirrigated areas. For the vested land a raiyat would  be   entitled  to  get  compensation  under  s.  14V, according to  the principles specified in Chapter III of the West Bengal  Estate Acquisition  Act, 1953.  It is, however, pointed out  that an intermediary was entitled under s. 6(1) (f) of  that Act  to retain  his homestead  and,  therefore, there is  no provision made in s. 16 or s. 17 for payment of any compensation in respect of homestead.      We are  informed by  learned counsel  appearing for the State of  West Bengal that the Government are not interested in depriving  the raiyats  of their  homestead, and they are entitled to  retain  it.  Normally,  raiyats  would  not  be affected  as   they  would   be  allowed   to  retain  their homesteads, as  falling within  the  ceiling  limit  allowed under s. 14M. 1240      Visualizing that there may be some exceptional cases of large  land  holders  having  extensive  lands  spread  over different villages, and consequently a number of homesteads, learned counsel for the State of West Bengal has pointed out that in  such an  event the provisions of s. 16(1)(a)(ii) of the Estates Acquisition Act would be attracted, which reads:           "16(1) For  the purpose  of the preparation of the      Compensation Assessment Roll           (a)   the gross income of an intermediary shall be                taken to consist of-      XXX                XXX                   XXX           (ii)  in  respect  of  the  Khas  land  which  the                intermediary  does   not  retain  under  sub-                section (1)  of section  6, the annual income                of such  land determined  in  the  prescribed                manner."      In this  connection r. 15(b) and (d) of the West Bengal Estates Acquisition  Rules, 1954,  provide the procedure for arriving at  the compensation  for  any  homestead  if  such homestead falls  within the  category of  agricultural  land i.e., where it is entered in the record of rights as part of agricultural holding of a raiyat.      If a  homestead is  entered in  the record of rights as non-agricultural land  or as  a part  of a  non-agricultural holding, it  does not  come with  in the purview of the Act, and, therefore,  the question  of vesting  of such homestead does not arise.      As already  adumbrated, the State of West Bengal has no intention to  oust any  raiyat from his homestead, or not to pay any  compensation under  the existing provisions for any homestead which  is vested in the State under the provisions of the  Act. A  raiyat is  within his  rights to retain land upto the  ceiling limit applicable to him in accordance with s. 14M  and 14T.  Thus a  raiyat is at liberty to retain his homestead and not to allow it to be vested in or acquired by

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the State  under the  Act.  It  is  expected  that  normally raiyats would  retain their  homesteads and,  therefore, the question of  ousting them  from their  homesteads  does  not arise at  all. In  other cases, where raiyats willingly give up their  homestead to  be vested  in the  State, i.e. to be acquired by  the State  without desiring  to retain the same within the  ceiling area  applicable to him, the question of payment of  compensation  will  arise  and  in  such  cases, compensation would  be computed in accordance with s. 16 (1) (a) (ii)  of the  Estates Acquisition Act read with r. 15(b) and (d) of the Estates Acquisition Rules. 1241      The last  contention as  to the constitutional validity of s.  14M(5) on  the ground that it is violative of Art. 26 appears to be misconceived. The submission is that since the fundamental right  to own  property under cl. (c) of Art. 26 is subject  only  to  the  law  relating  to  public  order, morality and  health, it cannot be made subject to a law for agrarian reform,  as that  has nothing  to  do  with  public order, morality  or health.  In State  of Bihar v. Kameshwar Singh(1) the  Court repelled  the argument  and said  that a charity created  by a  private individual is not immune from sovereigns  power   of  compulsory  acquisition  for  public purposes, and  that the vesting of the property in the State under the  provisions of the Act in question there would not in any  way affect  the charity  adversely because  the  net income that  the institutions  are deriving  from properties has been made the basis of compensation awarded to them. The power of eminent domain which is inherent in every sovereign State, must  be capable  of being  exercised  against  every property  held   by  any   person  in  the  State.  Being  a fundamental attribute  of sovereignty  of State  one  cannot imagine that  the framers  of the  Constitution intended  to divest the  State of  that attribute  by implication  in the case of  property owned  by a  private trust.  Just  as  the property of  a private  trust  is  held  subject  to  a  law imposing a  tax upon it, so also is that property subject to the eminent domain of the State.      All that  s. 14M(5)  provides is  that land  owned by a trust or  endowment other  than of a public nature, shall be deemed to  be land  owned by the beneficiary of the trust or endowment, and each such beneficiary shall be deemed to be a raiyat under  the Act  to the  extent of  the share  of  his beneficial interest  in the said trust or endowment. What is of essence  is the  capacity in which the land is held. If a raiyat is  a beneficiary  of a private trust, his beneficial interest consists  in the offerings or income. The provision in effect prescribes that the land should be clubbed for the computation  of  the  ceiling  area  under  s.  14M(1).  The imposition of  such a  ceiling would  no  doubt  reduce  the holding of the trust, but the Government has the power under s. 14O(3)  to increase  the ceiling  area in  certain cases. Where the  Government is  satisfied that  a  corporation  or institution established  exclusively  for  a  charitable  or religious purpose  or both,  for which  a ceiling  limit  is prescribed under  s. 14O(1), or a person holding any land in trust or  in pursuance  of any  other endowment,  creating a legal  obligation   exclusively  for   a  purpose  which  is charitable or religious, or both, requires land, as distinct from the income of such land, for the due performance of its obligation, it may having regard to all the cir- 1242 cumstances of  the case,  increase the ceiling area for such corporation or  institution or  person to  such extent as it may  deem  fit.  The  legislature  has  therefore,  provided

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adequate safeguards  under s. 14O(3) to soften the rigour of the Act in relation to religious and charitable trusts.      The challenge  to the  validity of  Chapter II B of the West Bengal  Land Reforms  Act, 1955  introduced by the West Bengal Land  Reforms (Amendment)  Act, 1971 must, therefore, fail.      In  the   result,  the  petitions  must  fail  and  are dismissed with costs. S.R.                                    Petitions dismissed. 1243