Delivered by Veeraswami J.
This petition for certiorari turns on the scope of the second proviso to Art. 31-A (1) of the Constitution of India. This was one of petitions in toe batch disposed of by M.K. Subbachariar v. State Of Madras 1967 1 M.L.J 206. But, because the scope of that proviso did not arise in the rest of the petitions, we have considered this petition seperately,
Sellur village of Ekabhogam Mirasu was notified and taken over under the provisions of Madras Act XXVI of 1963. As a result of prolonged litigation, the result of which is to be found in Navanithaswaraswami Devasthanam v. Ganapathi 1955 2 M.L.J 112. Navanithaawaraswami Devasthanam v. Saminatha Pillai 1958 2 M.L.J 281 and A.S 157 of 1957, the Devasthanam took possession of the entirety of the lands comprised in the village. The State Government, in exercise of its powers under S. 52 of the Madras Publics Trusts Act 1961, exempted the entire extent from the operation of the Act by two orders dated 21st December 1963 and 29th June 1965. This petition was filed on 22nd September 1965 to quash the notification under S. 1 (4) which was in September 1965, of Madras Act XXVI of 1963. on the ground that it did not provide for payment of market value as compensation for acquisition of the Inam village, but only provided for allowances of Tasdik under S. 32.
The argument for the petitioner is that the second proviso to Art. 31-A (1) applies to the entire extent comprised in the Inam village taken over. It is said that though, by reason of the exemption granted by the Government under S. 52 of the Madras Public Trusts Act, the provisions of the Act bad no operation in respeet thereto, nevertheless, in a sense, they should be regarded as lands within the ceiling Alternatively, the submission for the petitioner is that, in any case, the second proviso to Art. 31-A (1) is applicable to all lands in a village taken over which are under personal culti vation.
So far as the point that the lands are within the ceiling limit under the Madras Public Trusts Act is concerned, we may at once say that it is impossible to accept it. The effect of applying S. 52 is that the lands exempted will be free from the operation of the provisions of the Act. It clearly follows, therefore, that once that happens, the lands, to which the Act becomes inapplicable, beeause of the exemption, are entirely outside the scope of any ceiling. In fact, no question of ceiling at all will arise in respect of such lands, for, celling arises because of and under the provisions of the Act.
On the other question too, on the scope of the second proviso to Art. 31-A(1), we are not impressed that it has any application to the lands in Sellur village. The proviso is as follows:—
“Provided further that where any law make 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 asquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.”
In our view, having regard not merely to the language employed by the proviso, but also the context in which the provisons was inserted by the Seventeenth Amendment, it is, clear that it applies only to small holdings within the ceiling limit which is under a person's personal cultivation. Art. 31-A itself is an exception to the general principles embodied in Art. 31. The second proviso figures as an exception to the exception. That is to say, though market value is not the criterion for purposes of assessment of compensation for estates taken over under the enactments, which have been included in the Ninth Sches dule by the Seventeenth Amendment in the case of land within the ceiling limit applicable to a person under any law for the time being in force it can only be acquired on payment of compensation at a rate which shall not be less than the market value. The purpose is obviously to protect small ryots or quondam landholders in possession of limited extents of lands within the ceiling under the law prevailing in the particular area which is under his direct cultivation. It also seems to us, in the context of the Seventeenth Amendment, which put in the second proviso and also a number of enactments in the Ninth Schedule, that for the application of the second proviso, among other things, two things are essential: (1) acquisition within the meaning of Art. 31 and (2) of lands within the ceiling limit. The ceiling limit has not been prescribed by Act XXVI of 1963. That has been done only by the Madras Publio Trusts Act. But, as we said by reason of the exemption granted by the Government the Act is inapplicable to the land. Further the Madras Public Trusts Act itself is not one which provides for acquisition of lands as such. We are of the view, therefore, that the petitioner is not, on that ground too, entitled to invoke the benefit of the second proviso to Art. 31-A (1) of the Constitution.
The view that we have expressed as to the scope and applicability of the said proviso seems to receive support also from the observations of the Supreme Court in Golaknath v. State of Punjab. Referring to the scope of the proviso, Hidayatullah, J. as he then was observed:
“ The sum total of this amendment (the Seventeenth Amendment) is that except for land within the ceiling, all ether land can be acquired or rights therein extinguished or modified without compensation and no challenge to the law can be made under Art. 14, 19 or 31 of the Constitution……There is no kind of agricultural estate or land which cannot be acquired by the State, even though it pays an illusory compensation. The only exception is a second proviso added to Art. 31-A (1) by which lands within the ceiling limit applicable for the time being to a person personally cultivating his land may be acquired only on paying compensation at a rate which shall not be less than the market value. This may prove to be an illusory protection. The ceiling may be lowered by legislation………My brother Shelat and I described the device as a fraud upon this proviso, but it is obvious that a law lowering the ceiling to almost nothing cannot be declared a fraud on the Constitution. In other words, the agricultural landholders hold land as tenantsat-will. To achieve this a large number of Acts of the State Legislature have been added to the Ninth Schedule to bring them under the umbrella of Art. 31-B.”
Though these observations were made in a different context, they were concerned with the scope and effect of the second proviso. If the proper construction of the proviso is as suggested for the petitioner, the proviso should have been entirely differently worded, and further, it would have defeated, to a large extent, the purpose of Art. 31-A. The construction sought to be placed on the proviso entirely ignores the words—
“ any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force.”
We consider, therefore, that the notifications of the Inam village cannot be quashed.
The petition is dismissed with costs. Counsel fee Rs. 100.
V.C.S