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PETITIONER: STATE OF BIHAR

       Vs.

RESPONDENT: RAMESHWAR PRATAP NARAIN SINGHAND OTHERS.

DATE OF JUDGMENT: 25/04/1961

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS SINHA, BHUVNESHWAR P.(CJ) SARKAR, A.K. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1961 AIR 1649            1962 SCR  (2) 383  CITATOR INFO :  R          1962 SC 694  (28,65)  R          1962 SC 723  (10)  R          1965 SC 632  (11)  F          1967 SC 427  (3)  D          1969 SC1100  (14)  R          1974 SC1480  (15)

ACT: Mela-Right  of ex-proprietors to hold Melas after  abolition of proprietory tenures-Enactment empowering State Government to  hold  such  Melas-If violative  of  fundamental  rights- Legislative  competence-Acquisition without public  Purpose- Constitution of India, Arts. 14, 19, 31, 31A, 246-Bihar Land Reforms  Act,  1950 (Bihar Act 30 of 1950), ss.  4,  6-Bihar Land  Reforms Amendment Act, 1959 (Bihar Act XVI  of  1959), ss. 4, 7A, 7B, 7C.

HEADNOTE: After  the  estates and tenures of  proprietors  or  tenure- holders  had  passed to and became vested in  the  State  by virtue  of  the Bihar Land Reforms Act,  1950,  the  Revenue Authorities   interfered  with  the  rights  of  those   ex- proprietors  and  ex-tenureholders to hold  Melas  on  lands which were occupied by them thereafter as occupancy  raiyats and  collected  tolls  from  such Melas  on  behalf  of  the Government whereupon those intermediaries made  applications to the High Court for writs restraining the Government  from such  interference  which were allowed by  the  High  Court. During the pendency in this Court of these appeals preferred by  the Officers of the State of Bihar against the order  of the  High Court the Bihar Land Reforms Amendment Act,  1959, was passed amending the Bihar Land Reforms Act of 1950  with retrospective effect by which the word Mela was added  after the  words jalkars, hats and bazars in s. 4, cl. (b) of  the amended  Act.  Further amendments provided inter  alia  that the State Government and not the intermediaries except  with the consent of the State Government shall have the right  to hold such Melas.  The main question arising for decision  in these  appeals and certain other applications made  to  this

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Court under Art. 32 of the Constitution of India was whether the amending legislation violated Arts. 14, 19 and 31 of the Constitution. Held, that the Bihar Land Reforms Amendment Act, 1959, is  a law providing for the acquisition by the State of rights  in an   "estate"  within  the  meaning  of  Art.  31A  of   the Constitution and even if it is assumed that it abridges  the rights conferred by Arts. 14, 19 and 31 of the  Constitution its provisions are not void on that ground. The  amending  legislation was within the  legislative  com- petence   of   the  Legislature  under  Art.  246   of   the Constitution  and after its amendment the  legislative  list permitted the State 383 Legislature  to  enact a law of acquisition even  without  a public purpose. The  State  of Bihar v. Sir Kameshwar Singh,  [1952]  S.C.R. 889, considered.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 27 of 1960 WITH Civil Appeals Nos. 574, 92 411 and 285 of 1960, 351 of  1959 and Petitions Nos. 20 and 106 of 1960. Appeal  by special leave from the judgment and  order  dated August  6, 1957, of the Patna High Court in M. J. C. No.  57 of 1956. Lal Narayan Sinha and S. P. Varma, for the appellants (in C. A. No. 27 of 1960). D.   Goburdhan, for respondents Nos. 1 to 7. K.   K. Sinha, for the appellant (in C. A. No. 574 of 1960). D.   P. Singh, for the respondent. D.   P. Singh, for the appellants (in C. A. No. 92 of 1960). D.   Goburdhan, for the respondents. R.   C.  Prasad,  for the appellants (in C. A.  No.  411  of 1960). L.   K. Jha, S. K. Jha and K. K. Sinha, for the respondents. S.   P.  Varma,  for  the appellants (in C. A.  No.  285  of 1960). L.   K.  Jha,  B.  K.  Garg  and  S.  C.  Agarwal,  for  the respondent. S.   P. Varma, for the appellant (in C. A. No. 351 of 1959). R. K. Garg and S. C. Agarwala, for the respondents. Tarkeshwar  Dayal,  K. K. Sinha and R. C.  Prasad,  for  the petitioners (in Petition No. 20 of 1960). Lal Narayan Sinha and S.  P. Varma, for respondent No. 1. R.   K.  Garg  and S. C. Agarwala, for  the  petitioner  (in Petition No. 106 of 1960). S. P. Varma, for respondent No. 1. 384 1961.  April 25.  The judgment of the Court was delivered by DAS GUPTA, J.-The common question which arises for  decision in  this  group of cases is as regards the validity  of  the Bihar Act No. XVI of 1959 (Bihar Land Reforms Amendment Act, 1959),  in  so far as it amends  with  retrospective  effect sections 4 and 6 of the Bihar Land Reforms Act, 1950, to  be indicated later, and inserts the new sections, s. 7B and  s. 7C  in that Act.  It appears that sometime after  the  Bihar Land  Reforms  Act  became law and action  was  taken  under section   3   thereof  by  the  State   Government   issuing notifications,  declaring  that the estates  or  tenures  of proprietors  or  tenure-holders,  specified  in  the   noti- fications had passed to and become vested in the State, the

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Revenue  authorities started interfering with the rights  of those  ex-proprietors and ex-tenureholders to hold Melas  on lands  of  which  they  were  thereafter  in  occupation  as occupancy  raiyats  under  the State  and  started  settling rights  to  realise tolls from such Melas on behalf  of  the State  Government.   Aggrieved by this action taken  by  the Revenue  authorities  on  behalf  of  the  State  Government applications  were  made  by  several  of  these   erstwhile intermediaries now occupancy raiyats to the High Court  of Patna for writs restraining the Government and its  officers from such interference with their rights. Five  such applications have given rise to the five  appeals which are numbered as C. A. No. 351 of 1959, C. A. No. 27 of 1960, C. A. No. 92 of 1960, C. A. No. 285 of 1960 and C.  A. No.  411 of 1960.  The High Court held that in view  of  the provisions of s. 6 of the Bihar Land Reforms Act (before its amendment) and the fact that the provisions made in s.  4(a) of  the Act about the consequences that would ensue  on  the vesting  of an estate or tenure in the State  were  "subject to"  the provisions of s. 6, the State had no right to  hold Melas  on  the Bakasht lands  of  the  ex-intermediaries-now occupancy  raiyats.  Accordingly the High Court allowed  the applications and issued writs as prayed for.  Against  these orders of the High Court the State of Bihar and its officers have preferred the 385 five appeals mentioned above, after obtaining special  leave from this Court. Some  time  after  special  leave  was  obtained  by   these appellants the Bihar Legislature enacted in 1959, the  Bihar Land  Reforms Amendment Act, 1959, (Bihar Act XVI of  1959). This Act amended inter alia section 4, cl. (b) of the  Bihar Land Reforms Act, 1950, by adding the word "Mela" after  the words "jalkars, hats, and bazars" and by omitting the  words "subject  to the subsequent provisions of this  Chapter"  in cl. (a) of section 4. It also amended section 6 of the  1950 Act by substituting for the words "Notwithstanding  anything contained in this Act" the words "subject to the  provisions of sections 7A and 7B".  Of these s. 7B provides that "Where on any land deemed to be settled with the intermediary under the provisions of section 5, section 6 or section 7, a  Mela was  being  held by the intermediary at any  time  within  3 years of the date of vesting, the right to hold such Mela on such  land  shall, with effect from such date, vest  in  the State and notwithstanding anything contained in any law, the State shall have and the intermediary shall not, except with the  consent of the State Government have the right to  hold such  Mela  on  such  land  or  to  do  anything  which  may prejudicially  affect  such  Mela".   Section  7C   contains provisions  as regards settlement of hats, bazars  or  melas referred to in s. 7A and section 7B and provides inter  alia that settlements will be made with the outgoing intermediary or  his heir after application is received from him  and  if there are several of them who apply for settlement, with the most suitable of them.  The Amending Act made the amendments mentioned   above,   except   the  insertion   of   a.   7C, retrospective, with effect from the date of enactment of the parent Act.  The Amending Act had already been passed,  when several   other   applications  under  Art.   226   of   the Constitution for similar relief against the interference  by the Government with the intermediaries’ right to hold  Melas came  up for consideration before the High Court.  The  High Court rejected these applicants’ attack against the validity of the Amending Act and held that in view of the provisions 386

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now  made  the applicants were not entitled to  any  relief. Civil  Appeal No. 574 of 1960 has been preferred by  one  of such applicants on a certificate granted by the High Court. The two applications under Art. 32 of the Constitution  were filed in this Court for writs of mandamus against the  State of Bihar and its officers restraining them from  interfering with  the  applicant’s right to hold melas on  their  lands. Both  of  these  were filed after  the  Bihar  Land  Reforms Amendment Act, 1959, had become law. It is obvious that if the Amending Act is valid legislation, in so far as it amends with retrospective effect s. 4 and s. 6 of the 1950 Act as mentioned above and inserts section 7B, the  ex-intermediaries have not and the State has the  right to  hold  melas  on the Bakasht lands.   The  main  question therefore is whether this is a valid legislation.  To answer this question we have to examine in the first place  whether the Bihar Legislature which enacted the Amending Act had  on that  date the legislative competence under Art. 246 of  the Constitution  to  do so; and secondly, whether the  law  was void   because  of  the  provisions  of  Art.  13   of   the Constitution.   The Amending legislation was clearly  within Item  42  of  the Concurrent List, being a  law  as  regards acquisition of property. Mr.  Tarkeshwar Dayal, who appeared on behalf of one of  the ex-intermediaries  submitted  that  this was  really  not  a matter   of  land  reform;  the  purpose  of  the   Amending legislation being only to augment the revenue of the  State. It  is true that the law by taking the right to  hold  melas from certain persons and giving it to the State is likely to augment the revenues of the State.  It may well be that this object  of  augmenting  the revenues was  one  of  the  main purposes  behind the Amending legislation.  That however  is no  reason  to  think  that this  legislation  is  not  also concerned  with land reform.  It is however unnecessary  for us  to consider this question further, for whether it  is  a law  as  regards  land  reform or not,  it  is  clearly  and entirely  as regards acquisition of property.  The  question of the legislature having attempted legislation not within 387, its  competence by putting it into the guise of  legislation within  its competence does not even arise.  The  conclusion that  necessarily follows is that the  amending  legislation was   within  the  legislative  competence  of   the   Bihar Legislature under Art. 246 of the Constitution. This  brings us to the main question in  controversy,  viz., whether the amending legislation is void on the ground  that it  violates  Arts. 31, 19 and 14 of  the  Constitution.   A complete  answer to this question is furnished in favour  of the  State if this is a law within the saving provisions  of Art.  31A.  Art. 31A was enacted in the Constitution by  the Constitution (First Amendment Act) with retrospective effect from  the commencement of the Constitution.  It was  further amended  by  the Constitution (Fourth Amendment)  Act,  also with retrospective effect from the date of the  commencement of the Constitution.  This Article provides inter alia, that notwithstanding  anything  contained  in  Art.  13,  no  law providing for the acquisition by the State of any estate  or of  any 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. 19, 31 and  14 of the Constitution.  Is the amending legislation  a law  "providing  for the acquisition by the State  of  any estate  or of any rights therein?" Two arguments  have  been advanced  on behalf of the ex-intermediaries to convince  us that it is not such a law.  The first argument is that  what

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the  amending legislation provides for is not  "acquisition" at  all  within  the  meaning  of Art.  31A  as  it  is  not "acquisition" for a public purpose.  It has been urged  that the purpose is a mere augmentation of revenue. It does not appear to us that when the right of holding  the Mela  is  taken over by the State the only  purpose  is  the augmentation  of revenue.  There is scope for thinking  that the legislature believed that melas would be better run  and be  more in the interests of the general public when run  by the  State  than when they are left without control  in  the hands of private individuals with whom the profit motive is 388 likely to be the sole guiding principle.  It is  unnecessary however to answer this question for, in our opinion, a  law, may  be  a law providing for "acquisition" even  though  the purpose behind the acquisition is not a public purpose. It  is  important to notice that  the  Constitution  (Fourth Amendment)  Act made important alterations in Art. 31  also. One  of  the  amendments of Art. 31 was that  clause  2  now provides  that no property shall be  compulsorily  acquired, (1) save for a public purpose and (2) save by authority of a law  which  contains  provisions for  compensation  for  the property   acquired   and  either  fixes   the   amount   of compensation  or specifies the principles on which  and  the manner  in  which the compensation is to be  determined  and given.   Then,  Art.  31 A provides inter alia  that  a  law providing  for "acquisition" will not be void on the  ground that  it  is inconsistent with or takes away or  abridges  a right  conferred  by  Art. 31.   Reading  the  two  articles together  as  they stand after the fourth amendment  of  the Constitution it becomes obvious that when Art. 31A speaks of a  law of "acquisition" it contemplates a law which  may  be for  acquisition, though not for a public purpose  and  lays down  that  even  though this will be in  violation  of  the fundamental right guaranteed by the first part of Art. 31(2) the law will not be void because of such violation. The  question whether the validity of a law  for  compulsory acquisition  of property by the State can be  challenged  on the  ground  that  the "acquisition" is  not  for  a  public purpose  bad to be considered by this Court even before  the amendment  of Art. 31(2) as mentioned above in The State  of Bihar  v.  Sir Kameshwar Singh (1).  Art. 31(2) as  it  then stood  did not in so many words provide that no  acquisition can be made save for a public purpose; but it was argued  on behalf  of the State that such a provision was  implicit  in the  words  of Art. 31(2).  This argument  was  rejected  by Mahajan  and Chandrasekhara Aiyar, JJ., but it was  accepted by  Patanjali Sastri, C. J., and Das, J., both of whom  held that the requirement of public (1)  [1952] S.C.R. 880.                             389 purpose  being a condition for compulsory  acquisition  laid down  by  Art.  31(2)  the law was saved  in  spite  of  the violation of such condition by Art. 31(4) and also Art. 31A. Mukherjea,  J.,  also said that the  requirement  of  public purpose  was a condition implied in the provisions  of  Art. 31(2).   His Lordship then added: "For my part, I  would  be prepared  to  assume  that cl. (4) of  Art.  31  relates  to everything  that  is provided for in clause  (2)  either  in express terms or impliedly and consequently the question  of the  existence of a public purpose does not come within  the purview  of an inquiry in the present case." It was in  this state of judicial opinion that Art. 31(2) was amended by the Constitution  (Fourth Amendment) Act as mentioned above  and the  requirement  of  public purpose was  expressly  made  a

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condition  for  compulsory acquisition by  the  State.   The basis for the argument that the question whether there was a public purpose or not is open to judicial review in spite of Art. 31A has therefore disappeared. It  is  worth  noticing  in  this  connection  that  in  Sir Kameshwar Singh’s case(1) the argument that quite apart from anything  in  Art.  31(2)  as  it  then  stood  no  law   of acquisition  could be made except for a public  purpose  was sought to be reinforced by the words in Item 36 of the State List  and Item 42 of the Concurrent List.  These items  read as follows:-               "36.    Acquisition   or   requisitioning   of               property,  except  for  the  purposes  of  the               Union,  subject to the provisions of entry  42               of List Ill."               "42.   Principles  on which  compensation  for               property  acquired  or requisitioned  for  the               purposes of the Union or of a State or for any               other public purpose is to be determined,  and               the   form  and  the  manner  in  which   such               compensation is to be given." The  argument  on the basis of these entries  was  that  the State  legislatures  had  no  power  to  make  a,  law   for acquisition of property without fulfilling’ the condition of public  purpose.  The Constitution (.Seventh Amendment)  Act which came into force on the 1st (1)  [1952] S.C.R, 889 50 390 day  of November, 1956, deleted Entry 36 of the  State  List and substituted for the former phraseology of Item 42 of the Concurrent  List the words "acquisition and  requisition  of property".   It is quite clear that after its amendment  the legislative  list permits the State legislature to  enact  a law  of acquisition even without a public purpose; and  that the  only  obstacle to such a law being  enacted  without  a public  purpose  is  the provisions  of  Art.  31(2).   That obstacle  also  disappears  if the law in  question  is  one within Art. 31 A. It  was next contended that the acquisition of the right  to hold  the Mela, for which the amending Act provides  is  not acquisition, in any case, of "rights" "in any estate" within the  meaning of Art. 31A as defined in cl. 2(b) of the  same Article.   It was argued that this definition includes  only rights  of  persons who are intermediaries  and  unless  the raiyat  whose rights are being acquired is an  intermediary, that  is, a person between the State and the tiller  of  the soil,  his  rights are not rights within the  definition  of "rights  in relation to an estate"; and consequently, a  law providing for acquisition of the rights of such a raiyat  is not  a law within the saving provisions of Art. 31A.  It  is pointed out that on the date the Amending Act was passed the ex-intermediaries had ceased to exist as intermediaries  and had  become occupancy raiyats under s. 6 of the parent  Act. What  were being acquired therefore, it is argued, were  not rights  of  intermediaries  but rights of  raiyats  who  had ceased to be intermediaries.  It has to be noticed that  the impugned provisions amending s. 4 and s. 6 and s. 7(b)  have been  given retrospective effect so that the parent  Act  of 1950  has to be read as containing on the very date  of  its enactment  provisions  in these sections not  as  originally enacted  but as they stood after the amendment of 1959.   In deciding  whether rights of raiyats were being  acquired  or not  we have to forget what happened in consequence  of  the unmended  s. 6. Projecting ourselves to the  date  September

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25,  1950,  when the President’s assent to  the  Bihar  Land Reforms Act, 1950, was published in the 391 Gazette  and reading the Act as containing s. 4 and s. 6  as amended  and  also s. 7(b) it cannot but be held  that  what were  being  acquired by means of these  provisions  of  the amending   legislation  giving  retrospective  effect   were certain rights of the intermediaries.  These  intermediaries had  not on September 25, 1950, ceased to be  intermediaries and the fact that under the unmended provisions of section 6 they later on became occupancy raiyats should not be allowed to  confuse  the  fact  that  the  acquisition  of   certain properties  by  the amending legislation being  itself  with effect from September 25, 1950, what was being provided  for was acquisition of intermediaries’ rights. Even  if  it be assumed that what the  amending  legislation provided  for was the acquisition of raiyats’ rights,  there is  no justification for holding that these rights were  not "rights  in  any estate" within the definition of el.  2  of Art. 31A.  Clause 2(b) is in these words:-               "the  expression  ’rights’ in relation  to  an               estate, shall include any rights vesting in  a               proprietor, sub-proprietor,  under-proprietor,               tenure-holder,  ralyat, under-raiyat or  other               intermediary  and any rights or privileges  in               respect of land revenue." The  contention on behalf of the ex-intermediaries  is  that the  rights  of raiyats who are not intermediaries,  in  the sense of being middlemen between the State and the tiller of the  soil, are not within this definition.  This  contention does  not however stand a moment’s scrutiny, for the  simple reason,  that it is well known that ordinarily at  least,  a raiyat or an under-raiyat is not a person, who can be called an  intermediary.  It is reasonable to think that  the  word "raiyat"was  used  in its ordinary well-accepted  sense,  of the  person  "who holds the land under the proprietor  or  a tenure-holder "for the purpose of cultivation" and the  word "under-raiyat"   used  in  the  equally  well-accepted   and ordinary  sense of "a person who holds land under  a  raiyat for the purpose of cultivation." It is necessary to remember in this 392 connection  that  Art.  31A as first  enacted  by  the  Con- stitution (First Amendment) Act did not contain these  words "raivat,  under-raiyat"; and that after the First  Amendment the definition ran thus:-               "the  expression  rights’, in relation  to  an               estate  shall include any rights vesting in  a               proprietor, sub-proprietor, under-proprietor,,               tenure-holder  or other intermediary  and  any               rights  or  privileges  in  respect  of   land               revenue." It was the Fourth Amendment which in the year 1956  inserted the words "raiyat, under-raiyat "immediately after the words "tenure-holder".  At that time laws bad already been  passed in  most of the States for the acquisition of the rights  of intermediaries  in the estates; rights of raiyats or  under- raiyats who might answer the description "intermediary" were also  within the definition because of the use of  the  word "or  other intermediary".  The only reason for  specifically including the rights of "raiyats" and "under-raiyats" in the definition  could therefore be to extend the  protection  of Art.  31A  to laws providing for acquisition  by  the  State Governments of rights of these "raiyats" or "under-raiyats". In the circumstances and in the particular setting in  which

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the  words "raiyat" or "under-raiyat" were  introduced  into the  definition,  it must be held that the words  "or  other intermediary" occurring at the end, do not qualify or colour the meaning to be attached to the tenures newly added. Another  contention raised in support of the  argument  that the  impugned  law is not for acquisition of a right  in  an estate  is that the right to hold a Mela is not a  right  in the  lands  at  all.  This  contention  is  wholly  unsound. Holding  a hat, or bazar or mela is only a mode of  user  by the  owner  of  his land.  Just as he  can  enjoy  the  land belonging  to  him  in other ways, he can  use  it  for  the purpose  of having a concourse of people-buyers and  sellers and  others for a hat, or bazar or mela-subject, as  in  the case  of other user to the requirement that no  nuisance  is created  and  the legal right of others are  not  infringed. Consequently, the right to hold a Mela has always been                             393 considered  in  this country to be an interest in  land,  an interest which the owner of the land can transfer to another along  with the land or without the land.  There can  be  no doubt  therefore  that  the right of the  proprietor  of  an estate  to  hold a Mela on his own land is a  right  in  the "estate, being appurtenant to his ownership of the land;  so also  the  right  of  a  tenureholder,  who  it  has  to  be remembered  is  the owner of the land subject  only  to  the payment  of rent to the proprietor, to hold a mela  on  land forming  part of the tenure.  It is true that a  licence  to hold  a  Mela  on another’s land in  which  no  interest  is transferred  is  not an interest in land; but  there  is  no question  here of the acquisition of any licence to  hold  a Mela  at  another  person’s land.   The  argument  that  the impugned law was not a law for acquisition of a right in the "estate" because the right to hold a mela was not a right in the land must therefore be rejected. Lastly, it was contended that long before the date of  the amending Act the "estates" had ceased to exist as a consequence of the notifications issued under s.  3  of  the Parent  Act and consequently whatever was being acquired  in 1959 could not be a right in an "estate".  Here also we have to take note of the fact that the impugned provisions of the Amending  Act were made retrospective with effect  from  the date  of the original enactment so that we have  to  project ourselves  to September 25, 1950, the date of  the  original enactment,  and  consider  whether  on  that  date  the  law provided  for  acquisition  of  a  right  in  an   "estate". Undoubtedly the "estates" did exist on that date and so  the acquisition retrospectively provided for from that date  was acquisition of a right in an estate. Even  if we ignore the fact that the impugned provisions  of the Amending Act were given retrospective effect there is no warrant  for saying that what was being acquired was  not  a right  in  an "estate".  "Estate" was defined in  the  Bihar Tenancy  Act to mean "any land included under one  entry  in any  of  the general registers of revenue-paying  lands  and revenue-free  lands, prepared and maintained under  the  law for the time being in force by the Collector of 394 a District".  It is not disputed before us that in spite  of the fact that in consequence of notifications under  section 3  of the Act the "estates" had become vested in the  State, these  registers continued to be maintained at least  up  to the  date of the Amending Act and even later.  The  position therefore  is that the "estates" have become vested  in  the State but have still not ceased to be "estates". We  have therefore come to the conclusion that the  impugned

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provisions  of the Amending Act is a law providing  for  the acquisition by the State of rights in an "estate" ".  within the meaning of Art. 31A of the Constitution and consequently even  if we assume that they are inconsistent with  or  take away or abridge any of the rights conferred by Arts. 14,  19 and  31  they are not void on that ground.   The  conclusion cannot therefore be escaped that the ex-intermediaries  have not and the State has the right to hold melas on the Bakasht lands  of which they have be. come occupancy  raiyats  under the provisions of s. 6. We  therefore allow the appeals by the State and  set  aside the order of the High Court for the issue of writs and order that  the applications under Art. 226 made before  the  High Court be dismissed.  We also dismiss the two petitions under Art.  32 of the Constitution filed in this Court,  and  also Civil Appeal No. 574 of 1960. In  the  circumstances of the case, we make no order  as  to costs. Appeals by the State allowed. C.   A. No. 574 of 1960 and Petitions under     Art. 32 dismissed. 395