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PETITIONER: STATE OF ORISSA

       Vs.

RESPONDENT: CHANDRA SEKHAR SINGH BHOI ETC.

DATE OF JUDGMENT: 15/07/1969

BENCH: SHAH, J.C. BENCH: SHAH, J.C. VAIDYIALINGAM, C.A.

CITATION:  1970 AIR  398            1970 SCR  (1) 593  1969 SCC  (2) 334  CITATOR INFO :  RF         1972 SC 486  (3,8,9)  R          1975 SC1193  (18)

ACT: Constitution of India-Art. 31-A proviso 2-"Law for the  time being  in force"-Orissa Land Reforms Act 16 of  1960-Ch.  IV containing ceiling provisions not brought into force-Chapter IV  amended  by Act 15 of 1965 and  new  ceiling  provisions substituted fixing compensation not at market  value-chapter IV of Act 16 of 1960 if "law in force" within Article  31-A, proviso 2.

HEADNOTE: The Constitution of India, Art. 31-A, proviso 2,  guarantees to  a  person for compulsory acquisition of  his  land,  the right  to  compensation which is not less  than  the  market value  when the land is within the ceiling limit  applicable to  him  under a law for the time being in  force.   Section 1(3) of the Orissa Land Reforms Act, 1960, provided that the Act was to come into force in whole or in part on such dates as  the  Government may from time to  time  by  notification appoint.  Certain  provisions of the Act were  brought  into force  by notifications. But Chapter IV of the  Act  dealing with ceiling of holdings of land was not brought into force. The  Act  was amended by Act 13 of 1965.  The  amending  Act deleted Chapter IV and substituted fresh provisions. Chapter IV as amended dealt with ceiling and disposal of excess land and provided for compensation at fifteen times the fair  and equitable  rent.  In  the High Court  the  respondent  land- holders urged that when Act 16 of 1960 was enacted it became law in force and the ceiling limit prescribed thereby became effective even though Chapter IV was not brought into  force by notification under section 1(3) of the    Act that  since the  Amending Act 15 of 1965 sought to restrict the  ceiling limit  and to vest the surplus land in the government  there was compulsory acquisition of land which could be valid only if  the  law  provided for payment to  the  land-holder  the market  value  of that part of the surplus land  which  was, within  the  ceiling limit under Act 16 of  1960.  The  High Court accepted the contention and struck down Chapter IV  of the  Act  as unconstitutional and invalid. It  was  -of  the

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view,  relying  on this Court’s decision  in  Thangal  Kunju Mudaliar’s  case, that the expression "law in force’ had  to be  "construed only in the constitutional sense and  not  in the  sense  of its actual operativeness." In appeal  by  the State, HELD : Allowing the appeal ’- A  law  cannot be said to be in force unless it  is  brought into  operation by legislative enactment or by the  exercise of  authority  by  a delegate empowered  to  bring  it  into operation.   The theory of a statute being " operation in  a constitutional sense" has no validity.  The decision of this Court in Thangal Kunju Mudaliar ends no support to the  view expresse  by the High Court.  There this Court held that  s. 1(3)  of Travancor Act 14 of II 24 (M.E.) was  an  "existing law"  on the date of the merge of the States  of  Travancore and  Cochin and the power to bring into fore the  provisions of the Travancore Act was exercisable by the successor State It was not held that the other provisions of the Act were in force  eve  before an appropriate notification  was  issued. [599 B-C; 600 C-D] 594 In  the present case the law relating to the ceiling  limit, viz., Chapter IV of Act 16 of 1960 was never operative by  a notification and was repealed by Act 15 of 1965.   Therefore there  was no ,ceiling limit applicable to the land  holders under any "law for the time being in force" which  attracted the  application of the second proviso to Art. 3 1 -A.  [600 E] Thangal  Kunju Mudaliar v. M. Venkitachalam Potti, [1955]  2 S.C.R. 1196; explained.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos.  1017,  to 1027, 1029 to 1032, 1034 to 1037, 1901 to 1906 and 854 of 1968. Appeals from the judgment and order dated January 30, 1967 of the Orissa High Court in O.J.Cs. Nos. 329 of 1965 etc. C. B. Agarwala end R. N. Sachthey, for the appellant (in all the appeals) H. R. Gokhale, Santosh Chatterjee -and G. S. Chatterjee, for the respondents (in all the appeals). The Judgment of the Court was delivered by Shah,  J.  The State of Orissa has appealed  to  this  Court against  the  judgment  of the State  High  Court  declaring "unconstitutional and invalid" Chapter IV of the Orissa Land Reforms (Amendment) Act 15 of 1965. The  Orissa Land Reforms Act 16 of 1960 (hereinafter  called the  principal Act) received the assent of the President  on October  17,  1960. By S. 1(3) of the principal Act  it  was provided  that the Act shall come into force in whole or  in part,  on such or date  or dates as the Government may  from time to time by notification appoint and different dates may be  appointed  for  different provisions of the  Act.  By  a notification issued on September 25, 1968 certain provisions of the principal Act other than those contained in Chs.  III -and  IV  were brought into force. By a  notification  dated December  9,.1965  Ch.  III  (ss.  24  to  37  dealing  with resumption  for personal cultivation of any land held  by  a tenant and related matters) was brought into force. But  Ch. IV  (ss. 38 to 52 dealing with ceiling of holdings  of  land and disposal of excess land) was not brought into operation. The  Legislature  of  the  State   of  Orissa  amended   the principal  Act  by  Act  13  of 1965.  By  Act  13  of  1965

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amendments were made in the principal Acts : the expressions "ceiling  area"  and  "privileged raiyat"  were  defined  by clauses  (5) & 24 of S. 24 and the expression  "classes,  of land" was  defined in S. 2(5- a). The original Chs. III  and IV-of the principal Act were deleted and were substituted by fresh provisions. Nothing need be said about the  amendments made  in  Ch.  III because in these groups  of  appeals  the validity of these provisions is not in issue. It may suffice to say that Ch. III (ss. 24 to 36) as amended 595 deals  with  the right of the landlord to  resume  land  for personal  cultivation,  the extent of that  right,  and  the proceedings  for resumption of land.  Chapter IV as  amended deals  with ceilings and disposal of excess land.  By S.  37 it is provided : "(1) No person shall hold after the commencement of this Act lands as landholder or raiyat under personal cultivation  in excess  of  the  ceiling  area  determined  in  the   manner hereinafter provided. By  S. 3 8 the Government is authorised to  grant  exemption from  the  operation of the ceiling in  respect  of  certain classes  of  land Section 39 deals with the  principles  for determining  the  ceiling area.  Sections 40, 41 &  42  deaf with the filing of returns in respect of lands in excess  of the ceiling area on the date of commencement of the Act  and the  consequences of failure to submit the return.’  Section 43  provides  for the preparation and publication  of  draft statements showing ceiling and surplus lands by the  Revenue Officer and S. 44 provides for the publication of the  final statement  of  ceiling  and  surplus  lands  after   hearing objections,  if any, received and after making enquiries  as the Revenue Officer may deem necessary.  Section 45 provides that : "With effect from  the beginning of the year next  following               the date of the final statement referred to in               sub-section (3) of section 44 the interests of               the  person to whom the surplus  lands  relate               and   of   all   landholders   mediately    or               immediately under whom the surplus lands  were               being  held shall stand extinguished  and  the               said  lands  shall  vest  absolutely  in   the               Government free from all encumbrances. Section  46  provides  for  determination  of  compensation. Section   47  sets  out  the  principles   for   determining compensation.  It provides that the compensation in  respect of the interest of the land holders mediately or immediately under whom the surplus lands are being held as a  landholder or  raiyat  shall be fifteen times the  fair  and  equitable rent.   It also provides for payment of in market  value  of tanks, wells and of structures of a permanent nature situate in  the  land, determined on the basis of fair rent  in  the manner  prescribed therein.  Sections 48 and 49  deals  with the  preparation  and  publication  of  draft   compensation assessment roll and the final compensation assessment  roll. By S. 51 provision was made for settlement of surplus  lands vested in the Government under S. 45 with persons as raiyats in the order of priority mentioned therein and S. 52 imposes a ceiling on future acquisitions.  It is provided thereby: 5 96 "The  foregoing provisions of this Chapter shall, A  mutatis mutandis, apply where lands acquired and held under personal               cultivation subsequent to the commencement  of               this  Act  by any person through  inheritance,               request,     gift,     family      settlement,               purchase lease or otherwise, together with the

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             lands ’in his personalcultivation  at  the               time  of such acquisition exceeds his  ceiling               limit. By  the  amendment  made in the  Constitution  by  the  17th Amendment Act the principal Act is incorporated in the Ninth Schedule to the Constitution with effect from june 20, 1964. The  Act is therfore not liable to be attacked on  the  plea that it is inconsistent  with or takes away or abridges  any of   the   fundamental   rights  conferred   by   Part   III Constitution.  But  the  power to repeal or  amend  the  Act incorporated  in  the Ninth Schedule is  not  thereby  taken away.  the  enactment  of  the  of  the  of  the   competent Legislature  to amending Act passed after  the  (Seventeenth Amendment)  Act,  1964 does not therefore  qualify  for  the protection of Art. 31-B.  See Ramanlal Gulabchand  Shah etc. v.  etc.  v. State of Gujarat & Ors.(1) Sri Ram  Ram  Narain Medhi  v.  The  State  of Bombay(2)  This  position  is  not disputed. Chapter  IV  in the principal Act by orissa Act 13  of  1965 when  brought  into  force is liable to  be  challenged  the ground that it is inconsistent with or takes away orabridges any  of the fundamental rights conferred by Part III of  the Constitution, It was urged however, and that plea has  found favour  with the High Court, that s. 47 incorporated by  Act 13 of 1965 which provided for compensation not based on  the market  value of the land but at fifteen times the  fair and  equitable  rent  is in consistent with  Art.  3  1  -A, proviso  2, and is on that account viod. To  appreciate  the contention the constitutional provisions  relating   to protection guaranteed by the Constitution against compulsory acquisition  of  property may be noticed. By  Ar.  31(2)  as amended  by the Constitution (Fourth Amendment)  Act,  1955, insofar as it is material, it is, provided : "No property shall  be compulsory acquired or  requisitioned               save   for  a  public  purpose  and  save   by               authority   of  a  law  which   provides   for               compensation for  the property so acquired  or               requisitioned  and either fixes the amount  of               the compensation or specifies the   principles               on which, and the manner in which the compen- (1)[1969] 1 S.C.R. 42. (2)[1959] Supp.  1 S.C.R. 489, 597 sation is to be determined and given; Clause  (2A)  of  Art. 31 which  in  substance  defines  the expression "law" providing for compulsory acquisition enacts that:               "Where  a  law  does  not  -provide  for   the               transfer   of  the  ownership  or   right   to               possession of any property to the State or  to               a  corporation  owned  or  controlled  by  the               State,  it shall not be deemed to provide  for               the  compulsory acquisition or  requisitioning               of property, notwithstanding that it  deprives               any person of his property."  By Art. 31(2) read with Art. 31(2A) property may be compul- sorily  acquired only for a public purpose and by  authority of a law which provides for compensation for the property so acquired and either fixes the amount of the compensation  or specifies the principles on which, and the manner in  which, the  compensation is to be determined and given.   In  order that  property may be validly acquired compulsorily the  law must  provide  for  the transfer of ownership  or  right  to possession of any property to the State or to a  corporation owned or controlled by the- State.

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By  virtue of S. 45 of the principal Act "the  interests  of person  to  whom the surplus lands relate and of  all  land- holders  mediately  or immediately under  whom  the  surplus lands  were  being  held  ...  stand  extinguished  and  the lands.  .... vest absolutey in the Government free from  all encumbrances."  This is clearly   compulsory acquisition  of land  within the meaning of Art. 31(2) of  the  Constitution and the compensation determined merely at fifteen times  the fair and equitable rent may not, prima facie, be regarded as determination  of compensation according to  the  principles specified  by  the Act.  But Art. 31A which applies  to  the statute in question provides by the first clause:  "Notwithstanding  anything contained in Article 13  no  law providing for- (a)the  acquisition by the State of any estate or  of  any rights therein or the extinguishment or modification of  any such rights, or (b) (c) (d) (e)               shall be deemed to be void on the ground  that               it is tent with, or takes away or abridges any               of  the  ferred by article 14, article  19  or               article 31 598 The principal Act 16 of 1960 and the amending Act 13 of 1965 were both Acts enacted for ensuring agrarian reform, and the lands  held  by the petitioners were  "estates"  within  the meaning  of  Art. 31-A.  By s. 45 the rights  of  the  land- holders were sought to be extinguished or modified.  But  to the operative part of Art. 31-A by S. 2 of the  Constitution (Seventeenth  Amendment) Act, 1964, the second  proviso  was added.  The second proviso enacts :               "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 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 -,hall  not  be               less than the market  value thereof." By  the Constitution (Seventeenth Amendment) Act,  1964,  it was  clearly enacted that under any law which  provides  for the acquisition of any land in an estate under the  personal cultivation  of the holder, compensation shall not  be  less than the market value of the land if such land be within the ceiling  limit applicable to  the holder under any  law  for the time being in force. Before  the  High  Court  it was  urged  on  behalf  of  the landholders  that  when  the principal Act  was  enacted  it became  law  in  force, and  the  ceiling  limit  prescribed thereby  became  effective,  even  though  Ch.  IV  was  not extended  by  a notification under s. 1(3) of the  Act,  and since  the  subsequent legislation seeks  to   restrict  the ceiling limit and to vest the surplus land in the Government under  s. 45 as amended, there is compulsory acquisition  of land which may be laid only if the law provides for  payment to the landholder for extinction of his interest, the market

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value  of that part of the surplus land which is within  the ceiling  limit under the principal Act. This argument  found favour  with the High  Court. In their view  the  expression "law in force" must be "construed only in the constitutional sense and not in the sense of its actual operativeness", and on  that account it must be held that "there was  a  ceiling limit  already provided by the principal Act as it was  ’law in  force’ within the meaning of that expression as used  in the  second proviso to Art. 31 -A". They proceeded  then  to hold that s. 47 of the Act as amended provided -for  payment of  compensation  at a rate which is less  than  the  market value  of  the  land falling within  the  ceiling  limit  as originally fixed under 599 Act  16 of 1960, and the guarantee of the second proviso  to Art. 31-A of the Constitution is on that account  infringed. We are unable to accept this process of reasoning. The right to  compensation  which is not less than  the  market  value under any law providing for the acquisition by the State  of any  land  in  an estate in the personal  cultivation  of  a person  is -guaranteed by the second Proviso only where  the land is within the ceiling limit applicable to him under any law for the time being in force.  A law cannot be said to be in force unless it is brought into operation by  legislative enactment,  or  by the exercise of authority by  a  delegate empowered  to  bring  it into operation.  The  theory  of  a statue being "in operation in a constitutional sense" though it  is  not in fact in operation has, in  our  judgment,  no validity. Again  Ch.   IV  of the principal Act was  repealed  by  the Amending Act 15 of 1965.  Article 31-A proviso 2  guarantees to  a  person, for compulsory acquisition of his  land,  the right  to  comPensation which is not less  than  the  market value, when the land is within the ceiling limit  applicable to  him under a law for the   time being in force.   On  the plain  words of the proviso the law prescribing the  ceiling limit  must be in force at the date of acquisition.  In  the present  case the law relating to the ceiling limit  viz.Ch. IV  of  the  principal Act was never  made  operative  by  a notification,  and  was  repealed by Act  15  of  1965.  The ceiling  limit under S. 47 of the principal Act was on  that account  inapplicable to the landholders who challenged  the validity of S. 45 of the amending Act. The  decision of this Court A. Thangal Kunju Mudaliar v.  M. Venkatachalam  Potti  and Anr. (1) on which the  High  Court relied  lends no support to the views expressed by them.  In that case the Travancore State Legislature enacted Act 14 of 1124  M.E to provide for investigating cases of  evasion  of tax.  The Act was to come into force by s. 1(3) on the  date appointed  by  the  State Government  by  notification.  The States  of Travancore and Cochin merged on July 1, 1949  and formed  the  United  State of  Travancore  -and  Cochin.  By Ordinance I of 1124 M.E. all existing laws of the Travancore State were to continue in force in the  United  State. By  a notification the Government of the United State brought  the Travancore  Act 14 of 1124 (M.E.) into force,  and  referred cases  of  certain  tax-payers  for  investigation  to   the Commission   appointed  in  that  behalf.   The   tax-payers challenged  the authority of the Commission  to  investigate the cases. They contended that the Travancore Act 14 of 1124 (M.E.)  not being a law in force when the United  State  was formed,  the-notification  bringing the Act into  force  was ineffective.  The Court rejected that plea. Section 1(3)  of Travancore Act 14 of 1123 (M.E.) was (1)  [1955] 2 S.C.R. 1196.

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L14 Sup.  C.I./69-9 600 existing  law  on July 1, 1949, and continued to  remain  in force  by  virtue  of  Ordinance  1  of  1124  (M.E.).   The notification  issued in exercise of the power under s.  1(3) of  the Travancore Act 14 of 1124 (M.E.); the  reference  of the  cases  of  the  petitioners,  the  appointment  of  the authorised officials and the proceedings under the Act could not  be questioned because s. 1(3) was existing law on  July 1, 1949. In  A.  Thangal Kunju Mudaliar case(1) the  contention  that Travancore Act 14 of 1124 (M.E.) was not law in force  until a  notification  was  issued  bringing  into  operation  the provisions  of  the Act, authorising the  appointment  of  a Commission,  and  referring the cases of tax-payers  to  the Commission,  was rejected.  The Court held that s. 1(3)  was in  operation  on July 1, 1949 and the power to  bring  into force  the provisions of the Travancore Act was  exercisable by  the  successor State.  It was not held  that  the  other provisions  of  the  Act were in force even  before  an  ap- propriate  notification was issued.  In the case in hand  S. 1(3) of -the principal Act was in force, but Ch.  IV of  the Act   was  not  brought  into  force.   The  argument   that provisions  of  the Act which by a notification  could  have been  but were not brought into force, must still be  deemed to be law in force, derives no support from the case  relied upon. Section  1(3)  of  Act 16 of 1960 is undoubtedly  a  law  in force,  but  until  the  power is  exercised  by  the  State Government   to  issue  an  appropriate  notification,   the provisions  of  Ch.   IV could not be deemed to  be  law  in force,  and since no notification was issued before Ch.   IV of  the  principal Act was repealed, there  was  no  ceiling limit  applicable to the landholders under any law  for  the time  being in force which attracted the application of  the second proviso to Art. 31-A. The appeals must, therefore, be allowed, and the order pass- ed  by, the High Court declaring Ch.  IV of Act 13  of  1965 amending  Act  16 of 1960 ultra vires, be  set  aside.   The State will get its costs in this Court from the respondents. There will be one hearing fee.  There will be no order as to costs in the High Court. R.K.P.S. (1)   [1955] 2 S.C.R. 1196. Appeals allowed. 601