Mohammad Shoukat Khan v. State Of Andhra Prad...

Obul Reddi, J.:— This appeal by the plaintiff Mohammad Shoukat Khan is directed against the judgment and decree of the Second Additional Judge, City Civil Court, Hyderabad, dismissing the suit of the plaintiff filed against the respondent-defendant, the State of Andhra Pradesh, for a declaration that the abkari rights of the plaintiff in the suit inam lands were not abolished under the Hyderabad Inams Abolition Act, 1955 and therefore he is entitled to the full income, namely, ‘Baithak’ of sendhi shops (rental or licence fee or right of sale), tree tax and tree-owners’ fee (Haque Malekana) and for recovery of the said abkari income from the defendant.

2. The relevant facts in the plaint are to the following effect: the plaintiff is the maktedar of the suit inam lands situate in Sardarnagar and Kurvaguda in Hyderabad District. These inams or maktha lands were originally granted by the Firman of the Nizam to the predecessor-in-interest of the plaintiff. The Atiyat Court granted the inam (muntakhab) i.e, decree Exhibit P-l in respect of the inam lands of Sardarnagar on 15th August, 1944 with specific Atiyat terms ‘Ba-Hama-Abwab’ (with all sources of income) and ‘Bila-Quiyame-e-Haq-e-Sirakar’ (without any deduction as Government share) in perpetuity. Similar muntakhab (Exhibit P-2) was granted in favour of the plaintiff by the Atiyat Court in respect of the ‘Arazi Maktha’ (minor inams) of inam lands of Kurvaguda village. The then competent authorities of the Revenue, Excise and Atiyat Departments admitted and recognised from time to time that the expression “Ba-Hama-Abwab” included the rights of the Maktedar, the plaintiff in respect of distilling of liquor, selling of opium, ganja and sendhi and the right of Baithak or rentals and the collection of sendhi trees income, known as tree tax and tree owners’ fee (Haque Malekana) in the maktha land. These rights were recognised and upheld by the Government of Andhra Pradesh, Revenue Department, in G.O No. 2254, dated 5th December, 1957. The erstwhile Government of Hyderabad by its order (Exhibit P-7) No. 2 dated 22nd Isfandar, 1355-F (22nd January, 1946) acquired the rights of the plaintiff in respect of selling opium, ganja and the rights of distilling liquor by paying yearly compensation, but did not acquire the plaintiff's rights of selling sendhi, (baithak) or collection of tree-tax. Therefore, the plaintiff enjoyed as before these rights which were not acquired. In recognition of these rights, the Government paid ‘baithak’ tree-tax and tree owners' fee till 19th July, 1955 and discontinued payment of these amouns, consequent on the abolition of the inams under the Hyderabad Inams Abolition Act VIII of 1955, hereinafter referred to as the Abolition Act. The Abolition Act is not applicable to the inams other than inam lands and inams granted by the Nizam under Firman were not limited to the ‘rights in land’ and other rights such as ‘Rusums’ ‘weekly bazaar’ and abkari rights like ‘baithak’ and tree-tax were also granted to inamdars. The abkari rights are rights independent of the land and if it was the intention of the Legislature to take over ‘Ba-Hama-Abwab’ (all sources of income) which included the abkari rights also it would have expressly mentioned that these rights were also abolished and vested in the Government as was done in the case of ‘mining rights ‘fishery rights’ etc. The compensation under the Inams Act is to be determined only ‘in terms of the land revenue’ only as provided therein. If it was the intention of the Legislature to take over the abkari rights also, it would have determined the compensation specifically ‘in terms of those items also’. Thus, the abkari and other rights which are independent of the land were not abolished under the Inams Abolition Act and ‘the rights other than land revenue’ were deliberately excluded from the purview of the said Act. This amounts to deprivation of the property of the inamdar under sub-section (3)(a) of section 1 of the Act with effect from the date of the commencement of the Act i.e, 20th July, 1955. In addition to this, by another notification the provisions relating to compensation section 3(2)(g) of the Abolition Act were suspended and although it is more than three years, since the Abolition Act come into force, no notification as provided in sub-section (3)(b) of section 1 has been published to bring into effect the provisions relating to compensation. Therefore, the Act is ‘manifestly a fraud on the Constitution of India.’ In laying down the principle for payment of compensation under the Abolition Act ‘only land revenue’ was taken into consideration and other items of income of the inamdar referred to in section (3)(2)(b) were not taken into account and as sections 12 to 14 of the Act do not contain any provisions for adequate and fair compensation in respect of the right, the provisions are invalid and ultra vires of the Constitution. In the written statement the defendant (respondent) admitted the two ‘munta-kabs’ granted to the appellant in respect of the suit inam lands by the Atiyat Courts and the rights of the inamdar specified therein relating to “Ba-Hama-Abwab.” The abkari rights of ‘baithak’ tree-tax and tree-owner's fee are also admitted as having been recognised by the Government from time to time, although the interpretation given by the plaintiff regarding the orders of the Government is not admitted. It is the case of the Government that the Government in 1346-F (1946) had taken the management of all jagirs and Makthas and the same was being managed by them and after deducting 21/2 to 3 per cent, charged through the Abkari department, the rest of the amount was being paid to the Maktedars. The plaintiff's rights, if any, were taken over under the Inams Abolition Act which came into effect on 20th July, 1955 and therefore, the question of the plaintiff having any further rights or claim does not arise. Whatever amounts were found due, were paid upto date of the commencement of the Abolition Act and nothing is due or payable thereafter to the plaintiff.

3. In the rejoinder of the plaintiff, he reiterated his stand that the Abolition Act refers to the abolition of inam lands only and it does not apply to abkari and other rights which are included in the term ‘Ba-Hama-Abwab’. and if the provisions of the Act are interpreted to include abkari rights, it would be ultra vires as no compensation was provided for for the abolition of abkari rights.

4. On these pleadings, the learned Additional Judge framed as many as ten issues and on the material issues, issues 2 to 5, he held that:

“Under sections 3, 2, 4 of the Act, abkari rights are also included so the terms Tnam would include these rights also “and that” sections 17 to 20 show the mode of determining total compensation payable in respect of inams so it cannot be said that the aspect of compensation for the Abkari rights is not covered by the Act.” and dismissed the suit.

5. In this appeal, Mr. Narasaraju, the learned Counsel for the appellant raised two contentions. According to him, on a fair and reasonable construction of the Act, there is no provision in the Act vesting abkari rights of ‘baithak’ tree-tax and tree-owners’ fee in the Government and that section 3(2)(b) is silent regarding vesting of these rights, and therefore they remained unaffected by the Abolition Act and it is therefore incumbent upon the respondent to render an account of the income derived under this head “abkari rights” and pay such amounts as are ascertained and due to the plaintiff. Amplifying his argument, he pointed out that if section 3(2)(b) had expressly specified the abkari rights also then it would be a case where the Legislature expressly intended to abolish those rights but when the Legislature did not expressly refer to the abkari rights in section 3(2)(b) such an intention cannot be implied. It is further argued by him that even if it is to be assumed without conceding that by implication the abkari rights are also included in section 3(2)(b) as no seprate provision for compensation is made, it would be a case of acquisition without payment of compensation, and outside the legislative competency. It is also pointed out by him that the Hyderabad Abolition of Inams (Amendment) Act, 1956 was given retrospective effect from 20th July, 1955 when the Parent Act, namely, the Abolition Act came into force. By virtue of section 3 of the Inams Abolition (Amendment) Act, 1956, the payment of compensation under section 3(2)(g) of the parent Act is suspended though the provisions vesting the inams were brought into operation. The Amendment Act is impugned as being unconstitutional in so far as it suspends the operation of the provisions relating to compensation, thereby enabling under the parent Act to abolish inams without payment of compensation.

6. We may therefore examine at the outset the nature and ambit of the inam grants to appreciate the contentions raised by Mr. Narasaraju.

7. Exhibit P-1 is Inam Muntakab of the date 15th August, 1944 in respect of the inam lands in Sardarnagar. An english translation of this Muntakab (Exhibit P-1) furnished to us gives the heading “Final Decree regarding Inam enquiry of Sarfe-khas territory (Crown Estate), His Exalted Highness the Nizam.” The claimant here is shown as the plaintiff and the condition of the grant in column 6 is shown as ‘maktha purchased for consideration’ and column 7 relates to the Firman of His Exalted Highness, the Nizam. It is noted against this column ‘with reference to Honourable Sarf-e-khas Committee letter No. 1469, dated 27th Shahrewar 1353-F (corresponding to 2nd August, 1944, A.D) and with reference to Firman (Royal commands) of H.E.H the Nizam, dated 10th Shahban 1363 Hirjri (corresponding to 31st July, 1944, A.D). The other inam Muntakab (Exhibit P-2) granted to the plaintiff is of the date 20th February, 1952 under the heading “Copy of Inam Muntakab (final decree)” issued by the Revenue Secretariat Atiyat Original Side. Against the condition of grant, column 7, it is shown that the Maktha was purchased for consideration and that the plaintiff is entitled to muntakab grant in view of the opinion of the Inam Commissioner and the Sarf-e-khas officers. Both these muntakabs or final decrees as expressed therein show that the suit mukthas in the two villages be confirmed in the name of Mohd. Shoukat Khan, grandson of the deceased in co-partnership with his younger brother Mohd. Tahzeeb Khan with equal share, ‘Ba-Hama-Abwab’ (with all sources of income) and ‘Bila-Qiyam-e-Haq-e-Sirkar‘(without any deduction as Government share) in perpetuity (for ever). The only difference in Exhibit P-2 is the expression ‘Bila-Qiyam-e-Haq-e-Sirkar‘is not used in that grant. What constitutes ‘Ba-Hama-Abwab‘or what construction should be given came up for consideration and it was construed as evidenced by Exhibit P-3 by the Excise Commissioner of H.E.H the Nizam's Dominions on 7th March, 1945 as “all sources of income including the abkari rights.” It is also mentioned therein that it is the Firman of the Nizam and there is clear mention of “Ba-Hama-Abwab” (including all sources of income) and in. the circumstances there should be no hesitation in admitting the claim for abkari rights. Exhibit P-4 as issued under orders of the Honourable Minister, Sarf-e-khas Mubarak (Crown Estate) on 3rd July, 1945 where again a clarification was given regarding the rights granted to the plaintiff under the Muntakhab. This clarifies that all the sources of income of this maktha include toddy, liquor, opium and ganja, etc., without deduction as Government share (royalty) and it was also directed by the Sarf-e-khas ‘kindly issue liquor, ganja and opium compensation payment order in the name of the muntakab (final decree) holder in co-partnership of Mohammed Tazeeb Khan.’ The Excise Commissioner of the Jagir section raised an objection stating that only land has been confirmed and therefore the maktedar cannot have abkari rights and the Secretary, Sarkf-e-khas Mubarak answered the petitioner by his letter, Exhibit P-5, dated 20th August, 1945 that ‘‘Bila-Quiyam-e-Haq-e-Sirkar“means without any deduction as Government share and that ‘Ba-Hama-Abwab‘means with all sources of income, i.e, sendhi (toddy), liquor, opium, ganja etc. in perpetuity (for ever) and the Commissioner was directed to act accordingly as per the Firman of the Sovereign. Subsequently as may be seen from Exhibit P-7 the plaintiff was paid compensation towards rents of distilleries, liquor shops and opium and ganja without affecting his other abkari rights to baithak, tree tax, tree-owners’ fee. The Government also in Exhibit P-10 in G.O No. 2254, dated 5th December, 1957 directed that the full sendhi rights, licence fee, tree-tax and tree-owners’ fee should be allowed to the Maktedar. It is on the basis of these rights granted to him by the Atiyat Court and subsequently recognised by the Government of Andhra Pradesh that the action is laid.

8. As may be seen from Exhibits P-1 and P-2 the grant of the suit inams were made by the Royal Firman of the Nizam of Hyderabad and when the question of succession to these inams came up under the Atiyat law in the State, muntakhabs were granted confirming the grant to the successors-in-interest and this confirmation of the grant of the inam lands in Sardarnagar is with reference to the Firman of the Nizam, dated 10th Shaben, 1363 Hijri (31st July, 1944). The muntakhab (Exhibit P-l) was issued by the Minister, Sarf-e-khas Mubarak (Crown Estate) and the other muntakhab in respect of the maktha lands in Kurvaguda was granted by the Atiyat Court of the Revenue Secretariat. The maktha lands in Exhibit P-2 were also granted by the Nizam under Firman to the predecessors-in-interest of the plaintiff. In 1952 the Hyderabad Atiyat Enquiries Act was enacted and the law relating to Atiyat grants was consolidated and the Atiyat Courts were empowered under this Act to make enquiries as to claims to succession or any right, title or interest in Atiyat grants and matters ancillary thereto. The grants of these makthas were made by the Nizam by Firmans in exercise of his Royal Prerogative and Sovereign rights vested in him. So what was granted to the predecessors-in-interest of the plaintiff was by a Royal Firman whereby the Sovereign vested certain rights possessed by him in the mak-tedar or the inamdar. The grant of Arazi Maktha (minor inam) was only for the lifetime of the grantee and after his death it was open to the Sovereign either to resume the grant or confirm the grant to the successors of the original grantee. It is for this purpose that an Atiyat enquiry used to be held by the Minister-in-charge of the Sarf-e-khas Mubarak with reference to the Firman of the Nizam and confirm the grant in the name of the successor or successors, as the case may be, after due enquiry as to the rights of the parties to succession. Later, the Atiyat enquiries used to be conducted by the Atiyat Department of the Secretariat till the enactment of the Hyderabad Atiyat Enquiries Act (X of 1952).

9. The expression “Ba-Hama-Abwab” in the muntakhabs which also includes the abkari rights of the maktedars came up for consideration and the erstwhile Government of Hyderabad had clarified the position through various circulars. In Volume II of the typed papers supplied to us regarding the abkari rights printed and published by the Government, Revenue Department, there are references to several circulars. The note on the subject is to the effect that the basic principle of the Atiyat grant is that, the grantee shall enjoy only such rights as have been granted to him. These rights were granted by the Firmans and later confirmed by muntakhabs whenever a successor had to be recognized. Therefore, no maktedar can get either abkari or other rights which have not been recognised and confirmed in the muntakhab.

10. Under section 35 of the Land Revenue Act of 1317-F., the pattadars should have the right of ownership (Haq-e-Malikhana) and the Government have the right to levy Royalty (Haq-e-Shahi) on the juice. Wherever the words “Hama Abwab” are mentioned; the Maktedars and the inamdars have been allowed to enjoy abkari rights and this expression implied the right to sell or baithak. Circular No. 29 of 1310 Fasli is relied upon by the learned Counsel Mr. Narasaraju to show, that the abkari rights, in this case, baithak, tree-tax and tree owners’ fee are distinct and separate from the rights of the inamdar to the sendhi trees on the land and the Government has recognized these rights as separate entities unconnected with the sendhi trees. This circular lays down that in respect of sendhi trees in Makthas and inams, the maktedars and inamdars have unrestricted rights and they were given rights over the maktha sendhi also. It is therefore to be seen having regard to the nature of the grant of these rights under the muntakhab whether by reason of the abolition and vesting of the inams the abkari rights referred to in the Muntakhab (Exhibits P-l and P-2) have also been vested in the Government as a consequence of the abolition of the suit inam lands.

11. We may now notice the relevant provisions of the Abolition Act.

12. This Act under section 1 is made applicable to all inams except those held by or for the benefit of charitable and religious institutions and inams held, for rendering village service useful to the Government or to the village community. Section 3 is the relevant section which vests the inams in the Government. Section 3(1) reads:

“Notwithstanding anything to the contrary contained in any usage, settlement, contract, grant, sanad, order or other instrument. Act, regulation, rules, or order having the force of law and notwithstanding any judgment, decree or order of a Civil, Revenue or Atiyat Court, and with effect from the date of vesting, all inams to which this Act is made applicable under sub-section (2) of section 1 of this Act shall be deemed to have been abolished and shall vest in the State.

(2) Save as expressly provided by or under the provisions of this Act and with effect from the date of vesting the following consequences shall ensue, namely:

(a) the provisions of the Land Revenue Act, 1317 Fasli relating to inam, and the provisions of the Hyderabad Atiyat Enquiries Act. 1952 and other enactments, rules, regulations and circulars in force in respect of Atiyat grants shall, to the extent, they are repugnant, to the provisions of this Act, not apply and the provisions of the Land Revenue Act, 1317 Fasli, relating to unalienated lands for purposes of land revenue, shall apply to the said inams:

(b) all rights, title and interest vesting in the inamdar, Kabiz-:—kadim, permanent tenant, protected tenant and non-protected tenant in respect of the inam land, other than the interests expressly saved by or under provisions of this Act and including those in all communal lands, cultivated and uncultivated lands (whether assessed or not), waste lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries and ferries, shall cease and be vested absolutely in the State free from all encumbrances;

(c) all such inam lands shall be liable to payment of land revenue.

(d) all rents and land revenue including cesses and royalties accruing in respect of such inam lands, on or after the date of vesting shall be payable to the State and not to the inamdar and any payment made in contravention of this clause shall not be valid;

(e) all arrears of revenue, whether as jodi, quit-rent or other cess, remaining lawfully due on the date of vesting in respect of any such inam shall, after such date, continue to be recoverable from the inamdar by whom they were payable and may without prejudice to any other mode of recovery be realised by deduction thereof from the compensation amount payable to him under this Act;

(f) no such inam shall be liable to attachment or sale in execution of any decree or other process of any Court and any attachment existing on the date of vesting or any order for attachment passed ‘before such date in respect of such inam, shall, subject to the provisions of section 73 of the Transfer of Property Act, 1882, cease to be in force;

(g) the inamdar and any other person whose rights have vested in the State under clause (b) shall be entitled only to compensation from the Government as provided for in this Act;

(h) the relationship with regard to inam land as between the inamdar and kabiz-e-kadim permanent tenant, protected tenant or non-protected tenant shall be extinguished;

(i) the inamdar, kabiz-e-kadim, permanent tenant, protected tenant and a non-protected tenant of inam lands and any person holding under them and a holder of an inam shall as against the Government be entitled only to such rights and privileges and be subject to such conditions as are provided for under this Act and any other rights and privileges which may hare accrued to any of them in the inam before the date of vesting against the inamdar shall cease and shall not be enforceable against the Government or the inamdar.

(3) Nothing contained in sub-sections (1) and (2) shall operate as a bar to the recovery by the inamdar of any sum which becomes due to him before the date of vesting by virtue of his rights as inamdar and any such sum shall be recoverable by him by any process of law, which, but for this Act, would be available to him.”.

13. For the purpose of this appeal, the next relevant sections are sections 12, 13 and 14 dealing with the determination of compensation payable to the inamdar which will be referred to later.

14. This Act is enacted with a view to adequately safeguard the rights of the tenants while adequately compensating the inamdar for the lands resumed from them. Section 3 is to the effect notwithstanding any judgment, decree or order of Civil, Revenue or Atiyat Court and such other things as are mentioned therein and all inams to which the Act is made applicable shall be deemed to have been abolished and vest in the State from the date on which the Act came into force, i.e, 20th July, 1955. The consequences of vesting of the inams are detailed in section 3(2)(b). According to Mr. Narasaraju, the words “all rights, title and interests vesting in the Inamdar” will include only such of those rights or interest enumerated in this clause, namely, the communal lands cultivated and uncultivated lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries and ferries but not the abkari rights and that they remained unaffected as they are not included in the rights and interests specified in section 3(2)(b). These rights, it is argued, are independent and distinct from the rights in the inam land and therefore there should be a clear indication in the vesting section. section 3(2)(b) or in the definition of ‘inam land’ as to show or include the abkari rights.

15. The expression or term ‘inam’ is defined in section 2(1)(c).

“‘Inam’ means land held under a gift or a grant made by the Nizam or by any Jagirdar, holder of a Samasthan or other competent grantor and continued or confirmed by virtue of a muntakab or other title deed, with or without the condition of service and coupled with the remission of the whole or part of the land revenue thereon and entered as such in the village records and includes:—

(i) arazi maktha, arasi agrahar and seri inam; and

(ii) lands held as inam by virtue of long possessions and entered as inam in the village records:

Provided that in respect of former Jagir areas, the expression inam shall not include such lands as have not been recognised as inams by Government after the abolition of Jagirs”.

16. The definition of inam means only land and therefore, it is contended that the abkari rights enjoyed by the appellant under the muntakhab or the title deed cannot be brought within the meaning of ‘land’ as these rights are distinct and independent of the land. In support of this argument, he has also relied upon the provision relating to compensation, section 12 to show that it is payable only to the inams abolished under section 3 a sum equal to twenty times the difference between the land revenue and jodi or quit rent, and, that the section does not provide for payment of compensation for abkari rights or other rights shown in section 3(2)(d).

17. In the light of the principle for compensation in section 12, Mr. Narasaraju contended that even apart from the fact that abkari rights have not been taken over, there is nothing to show that any compensation is provided for, for any other right or interest other than the land and therefore it excludes the intention of the Legislature to abolish abkari rights. ‘Inam land’ is defined in the Hyderabad Land Revenue Act (VIII of 1317-F) in section 2(10). ‘Inam land’ means the land exempted wholly or in part from payment of land revenue and includes maktha and agrahar land. ‘Revenue’ is defined in section 2(17) of the same Act as the amount payable by the holder to the Government at fixed periods for use of or entry into the land. It is in the context of the definition given for inams and the definition of inam lands and revenue, it has to be examined whether the consequences that flow from the vesting of the inam, abkari rights also vest in the Government. Mr. Sambasiva Rao, the learned Government Pleader has vehemently argued that when the inams are abolished, all the rights in respect of the inams or, inam lands are abolished and the words ‘all rights, title and interest’ are comprehensive enough to include abkari rights and there is nothing to show from the scheme of the Act that the Legislature did not intend to vest abkari rights also and if it had intended to save these rights there would have been a provision to that effect. It is also his case that compensation has been provided for all the rights and interests under section 12 and therefore the question of vires of the Act does not arise. It is also pointed out by him that the Government under Exhibit B-1 has informed the appellant that his request for compensation is under consideration and he had brought the suit even before the Government could consider his case and hence the suit is premature.

18. It is evident from a plain reading of section 3(2)(b) that abkari rights as such have not been mentioned under section 3(2)(b). But it is the case of the learned Government Pleader that though the term ‘inam’ means only ‘land’ certain consequences flow out of the vesting of the inam and those consequences are in respect of the inam land and all rights and interests including abkari rights enumerated in section 3(2)(b) are only illustrative and not exhaustive. In this connection he has invited our attention to the definition of ‘land’ given in the Hyderabad Land Revenue Act. section 2(1)(b) defines ‘land’:

“(1-b) ‘land’ includes all kinds of benefits pertaining to land, or things attached to the earth, or permanently fastened to things attached to the earth and also includes shares in or charges on the revenue or rent which are or may be levied on villages, or other defined areas.”

19. The learned Government Pleader rests his case on the strength of this definition to show that the right to collect baithak, tree-tax and tree-owners’ fee are rights or benefits pertaining to the land or things attached to the land and since the sendhi trees are embedded or attached to the lands and these rights pertaining to or in respect of those trees vest in the Government, as a consequence thereof.

20. Under the Abkari Act, the Government by public auction leases out the right to sell sendhi and this right cannot be exercised by the licensee unless he remits into treasury by separate challans, tree-tax and ‘Haq-e-Malikana’ at the rates specified. The privilege of the sale of the place is called ‘Baithak’ and it is also auctioned by the Government. A Division Bench of this Court consisting of Mr. Justice Jaganmohan Reddy as he then was and one of us (Venkatesam, J.) dealing with the question of Baithak in W.P No. 1502 of 1963 observed:

“Thus the Act and the Rules make it abundantly clear that the obtaining of a licence or privilege to sell sendhi on payment of the monthly rentals or ‘Baithak’ does not carry with it the right to tap sendhi trees. That right has to be obtained separately by a licence issued for the purpose and on payment of the tax fixed therefor.”

21. Kumarayya, J., in W.P No. 68/5 of 1955 held that Baithak constitutes property and a person entitled to Baithak cannot be ‘deprived save in accordance with the provision of any law and with compensation.’ The Madras High Court in Venugopola v. Thirmavuickarasu . 1948 2 M.L.J 155; A.I.R 1949 Mad. 1481. held that the right to tap the coconut trees and obtain toddy is in the nature of immovable property, because it is a benefit arising out of the land. According to the learned Government Pleader, the abkari rights in question are not severable from the inams or lands and it is the totality of the rights of the inamdar in the inam lands that are vested in the State, notwithstanding anything to the contrary contained in any settlement, contract, grant, sanad, order or other instrument. It is Mr. Narasaraju's case, as already adverted to, that these rights are distinct and separable from the land and are of a special nature which have no connection either with the tapping of trees or selling the timber or other products. It is true that an abkari contractor or licensee gets right to tap sendhi trees and obtain toddy by payment of the licence fee under the Hyderabad Abkari Act and the rules framed thereunder. The baithak or the rental and the tree-tax and the royalty are separately payable by the licensee or auction-purchaser. Thus it is obvious that there is a sharp dichotomy between the right to enjoy the benefits arising out of the trees by way of extracting toddy or selling timber or leaves or similar products and the abkari rights like ‘baithak’ tree-tax, and tree-owners’ fee. Even so, it is argued by the Government Pleader that the totality of rights including these rights vest in the State from the moment the inams are abolished. The Government Pleader wants us to construe the expression ‘in respect of the inam land’ occurring in section 3(2)(b) as to bring in every kind of right under the Sun enjoyed by the inamdar in the inam. He has relied upon a passage from Sri Jagadish Swarup's Interpretation of Indian Statutes:

“The word ‘include’ ‘or shall be deemed to include’ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute.”

22. The intention of the Legislature can be understood only from what is embodied in the Act. According to Lord Watson in Salomon v. Salomon:

“‘Intention of the Legislature’ is a common but very slippery phrase which popularly understood, may signify anything from intention embodied in positive enacment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it.” (Interpretation of Statutes and General Clauses Act by Bindra, page 315).

23. Paton in his jurisprudence (1946) at page 188 says:—

“Judges frequently disagree as to whether a section is plain or not, and, even where it is agreed that the meaning is plain, each may differ from the other as to what the plain meaning is. The doctrine that the intent of Parliament should be followed does not take us very far, for it is agreed that the subjective intention of Parliament cannot be considered, and that the intent must be gathered from the statute itself.”

24. Mahajan, J., as he then was in New Piecegoods Bazar Co., Ltd. v. Commissioner of Income-tax, Bombay . 1950 S.C.J 437; 1950 2 M.L.J 559; 1950 S.C.R 553, 561., observed that “it is elementary that the primary duty of a Court is to give effect to the intention of the Legislature as expressed in the words used by it and no outside consideration can be called in aid to find that intention.” The intention of the Legislature depends on the words used and according to Professor H.A Smith in Interpretation in English and Continental Law “words are only one form of conduct, and the intention which they convey is necessarily conditioned by the context and circumstances in which they are written or spoken. No word has an absolute meaning, for no word can be defined in vacuo or without reference to some context. In the words of Lord Blackburn in River Wear Commissioner v. Adamson . L.R 1877 2 A.C 743, 763., “but from the imperfection of language, it is impossible to know what that intention is without enquiring farther and seeing what the circumstances were with reference to which the words were used and what was the object appearing from those circumstances, which the person using them had in view Lord Blackburn again in Edinburg 4, Street Tramways v. Torbain . L.R 1877 3 A.C 58, 68., said:

“I quite agree that in construing an Act of Parliament we are to see what is the intention which the Legislature has expressed by the words, but then the words again are to be understood by looking at the subject-rpatter they are speaking of and the object of the Legislature and the words used with reference to that may convey an intention quite different from what the self-same set of words used in reference to another set of circumstances and another object would or might have produced.”

25. Lord Herschell in Colquhoun v. Brooke . 1889 14 A.C 493, 503. observed:

“I think that giving to the language of the enactment its natural meaning the facts stated do apparently bring this case within it……. The true meaning, the exact scope and significance of any passage occurring in a statute may be found not merely in the words of that passage but on a comparison of the same with other parts of the statute and the intention of the Legislature ascertained in that way.”

26. Pollock, B. in Greenfell v. Inland Revenue Commissioners observed:

“If a statute contains language which is capable of being construed in a popular sense, such a statute is not to be constructed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning of course, by the words ‘popular sense’ that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it.” Vide Craies on Statute Law, Sixth Edition by S.G.G Edger at page 163.”

27. The expression ‘in respect of’ was described as colourless words by Lord Greene (Stroud's Judicial Dictionary at page 1402).

28. Therefore the intention of the Legislature has to be gathered only from the expressed words and the true intention has to be formed on the meaning of the words and sentences used in the provisions. In the case of expropriating statutes like acquisition of properties, the provisions of law have to be strictly construed.

29. The question is whether the clause ‘all rights, interest and title’ is limited to the illustrations given in section 3(2)(b) or is capable of taking in its fold or ambit rights like abkari rights which are not enumerated or illustrated in the section. In Duke of Newcastle v. Morris, (sic) it was held that the words “all debtors” as used in the Bankruptcy Act, 1861, section 69 included persons of every description and that peers could not claim exemption from the operation of the Act on the ground that they had the privilege of Parliament. So also in Beckford v. Wade, Vide Craies on Statue Law, 6th Edn., by S.G.G Edgar, p. 185. Sir W. Grant, M.R, pointed out that the Legislature evidently considered that the general words of 32 Hen. 8, c, 1, (wills) which declared that “all and every person or persons” may devise their lands by will, would enable infants or insane persons to devise by will, because they subsequently passed 34 Hen. 8, c, 5, (wills) expressly to prohibit this. In Rajah of Venkatagiri State of Andhra Pradesh, the Supreme Court dealing with the consequences of vesting an estate from the notified date observed:

“Section 3 sets forth the consequences which ensue on the notification of an estate and it is clear that on an estate being notified the entire estate is to stand transferred to the Government and all rights and interests created in or over the estate before the notified date by the principal or any other land-holder must, as against the Government cease and determine.”

30. Rajagopala Ayyangar, J., speaking for the Bench of the Supreme Court in Guru Datta Sharma v. State of Bihar. Where the validity of the Bihar Private Forests Act was challenged, observed:

“We consider the principles laid down in the Belfast case 6 apt as an aid to the construction of the content of the expression ‘acquired’ in section 299(2) of the Government of India Act, 1935………………………………………………. property, as a legal concept is the sum of a bundle of rights and in the case of tangible property would include the right of possession. The right to enjoy, the right to destroy, the right to retain, the right to alienate and so on.”

31. Viscount Simonds in the Belfast case . Befast Corporation v. O.D Cars, Ltd., L.R 1960 A.C 490. (extracted in the Judgment of Rajagopala Ayyangar, J.,) observed that property is a word of very wide import including intangible and tangible property. Therefore the term or word ‘property’ is of very wide import and it would include tangible and intangible rights arising or in respect of inams or inam lands. The definition of ‘land’ in section 2(1)(b) of the Hyderabad Land Revenue Act will include any rights in or over such property or benefits accruing from the land or things attached to the land and will also include shares in the charges on the revenue or rent, and admittedly, in this case, the Government collects baithak, tree tax and royalty from an abkari contractor or a licensee and pays the same to the inamdar. The Supreme Court in State of Bihar v. Rameshwara Pratap, dealing with the validity of the Bihar Land Reforms Amendment Act of 1959 and whether the right of a proprietor of an estate to hold a ‘mela’ on his own land was a right in the estate; held:

“Consequently, the right to hold a mela has always been considered in this country to be an interest in land, and 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”

32. The abolition and vesting of the inams is made under section 3 of the Abolition Act and section 3(1) of the Act recites that:

“Notwithstanding anything to the contrary contained in any usage, settlement, contract, grant, sanad, order or other instrument, Act, regulation, rules, or order having the force of law and notwithstanding any judgment, decree or order of a Civil, Revenue or Atiyat Court and with effect from the date of vesting all inams shall be deemed to have been abolished and shall vest in the State.”

33. The Atiyat Courts issued muntakhabs confirming the grant of the inam to the plaintiff and permitted him to enjoy all sources of income from the inam. The expression ‘all sources of income’ that is, ‘Ba Hama Abwab’ in the muntakhabs relates to the inaktha or the inam and these sources of income are not granted independently of the maktha or inam land. The abkari income is one of the several sources of income and when a clarification was asked it was clarified as evidenced by Exhibit P-3 that ‘all sources of income’ is understood to include abkari rights also. The effect of section 3 of the Abolition Act is that irrespective of the grant made by the Atiyat Court or any other competent authority all inams vest in the State. section 3(2)(b) has to be read along with section 3(1) for ascertaining the intention of the Legislature. “All rights, title and interest” vested in the inamdar under the muntakhab as a consequence of abolition under section 3(1) vest in the State. What was granted and recognised under the muntakhab it is the right of the inamdar to all sources of income which included abkari rights. Abkari rights are not granted independently separating them from the inams. Under section 2(2) the words and expressions not defined in this Act shall have the meaning assigned to them in the Land Revenue Act, 1317 Fasli and the definition of “land” in section 2(1)(b) further makes it clear that abkari rights are not something separable from the land itself. It will be difficult to hold that abkari rights are not rights arising out of the land or benefits derived by the inamdar from the land and in no way appurtenant or ancillary to or connected with the inam land. Mr. Narasaraju asserted that there is a sharp difference between abkari rights and other rights or interest detailed in section 3(2)(b) but we are unable to hold that the cdnsequences that flow as a result of the vesting of the inams will not take away the abkari rights of the inamdar in the land. The Legislature has used the word “including” intending to illustrate the rights and interests so abolished and not to make it exhaustive. The effect of the section would have been different if the Legislature used the word “means” instead of the expression ‘‘including”. We think that giving to the language of the enactment its natural meaning it will undoubtedly bring this case within the definition of inam.

34. We may now proceed to examine the constitutional validity of the impugned legislation. Mr. Narasaraju argued that even assuming that the expression “all rights, title and interest” is inclusive of abkari rights, no provision is made for compensation and therefore it will be a case of expropriation of inams. Before dealing with this argument, we may refer to the relevant provisions which have a bearing on his argument.

35. Under section 4, every inamdar from the date of vesting of the inams shall be entitled to be registered as an occupant of all inam lands; except those that are excepted under this section. The registration of an inamdar as an occupant of any land under section 4(1) is conditioned by his payment of premium to the Government an amount equal to twenty-live times the difference between the jodi or quit rent if any paid by him and the land revenue payable in respect of such land. This amount is payable in not more than ten annual instalments along with the annual land revenue and in default of such payment it is recoverable as arrears of land revenue. Section 11 deals with saving the rights in certain cases. If an inamdar had created either by way of lease or otherwise any right in any inam land which vests in the State including the rights in any forest, mines or minerals, quarries, fisheries or ferries the transaction shall be deemed to be valid and all rights and obligations arising thereunder after the date of vesting shall be enforceable by or against the Government. For termination of these rights, compensation is also provided for under section 11(2).

36. Section 12 says:—

“The compensation payable to the inamdar for the inams abolished under section 3 shall be the aggregate of the sums specified below:

(i) in respect of inam lands registered in the name of the inamdar and kabiz-e-kadam under sections 4 and 5 a sum equal to twenty times, the difference between the land revenue and jodi or quit-rent:

(ii) in respect of the income accruing to the inamdar from the lands registered in the names of his permanent tenant, protected tenant and non-protected tenant a sum equal to sixty per cent, of the premium charged as the case may be under sections 6, 7 and 8.”

37. The other relevant sections relating to compensation are sections 13, 14, 15 and 17.

Section 13: “Notwithstanding anything contained in this Act, or any other law for the time being in force, if any permanent tenant, protected tenant or non protected tenant has, prior to the date of vesting paid any consideration to the inamdar for obtaining the right of possession and the said amount is equal to 60 per cent, or more of the premium chargeable under sections 6, 7 and 8, he would be entitled to the deduction only to the extent of 60 per cent, and if the said amount is less than 60 per cent, of the premium he would be entitled to deduction to the extent of the amount actually paid by him. The amount so deducted from the premium shall be adjusted towards the compensation payable to the Inamdar under clause (ii) of section 12.”

Section 14: “The compensation payable to the inamdar, kabiz-e-kadim permanent, protected tenant or non-protected tenant for inam lands in their possession before the date of vesting and taken over by Government in excess of four and a half times the ‘family holdings, and under sections 4, 5, 6, 7 and 8 respectively, shall—

1. In respect of cultivated lands be the following multiples of the amount of land revenue payable on such lands—

(a) lands taken over from non-protectdd tenants ten times in case of dry lands and five times in case of wet lands;

(b) lands taken over from protected tenant or permanent tenant fifteen times in case of dry lands and seven times in case of wet lands;

(c) lands taken over from the kabiz-e-kadim or inamdar twenty times in case of dry lands and ten times in case of wet lands.

2. In respect of uncultivated lands be the following multiples of the amount of land revenue which could reasonably be assessed on such lands:

(a) lands taken over from non-protected tenant, four times in case of dry lands and two times in case of wet lands;

(b) lands taken over from protected tenant or permanent tenant six times in case of dry lands and three, times in case of wet lands;

(c) lands taken over from the kabiz-e-kadim or inamdar eight times in case of dry lands and four times in case of wet lands.”

38. Section 15 deals with the payment of compensation and it lays down that compensation shall be due as from the date of vesting and shall carry interest at the rate of two and three-fourths per cent, per annum from the date of vesting to the date of payment and modes of compensation are also prescribed under the section and it may be either in cash or in annual instalments not exceeding ten or in bonds either negotiable or not negotiable. Section 16 deals with interim payment where the amount of compensation is not paid within a period of six months from the date of vesting. Under section 17, the Collector is the competent authority to determine the total compensation by following the procedure laid down in section 18 of the Act. The learned Government Pleader has told us that compensation of any kind has not been paid so far, and this may be presumbly due to the reason that under the Amendment Act, clause 3(g) of section 3 is suspended or excluded from the Amendment Act. Whatever may be the reason no enquiry has been held by the Collector under section 18 and no compensation has been determined as yet, and it is conceded by the learned Government Pleader that interim payment also has not been made so far.

39. Section 12 with which we are now concerned is attacked on the ground that it does not provide for compensation for the rights and interests enumerated in section 3(2)(b) and therefore it is a case of expropriation of those rights as section 12 does not yield to the concept of compensation and hence it is a law outside the legislative competency. Even otherwise, according to the learned Counsel, the principle of compensation provided or enunciated in section 12 is illusory and unworkable as no jodi or quit rent has been fixed by reason of the abolition of the Enfranchised Inams Act under section 34 of the Abolition Act. The reason for not giving effect to Act VIII of 1952 is stated in its statement of object and reasons that it is likely to be challenged as being discriminatory. The learned Counsel has also relied on the other factor that section 3(2)(g) has been suspended by reason of the Abolition of Inams Amendment Act X of 1956 which came into effect oh 20th April, 1956. Under clause 3(2)(g) an inamdar and any other person whose rights are vested in the State under clause (b) shall be entitled only to compensation from the Government as provided for in this Act.

40. The result of Act X of 1956 is that no compensation has been paid so far although the inams were abolished and vested in the State with effect from 20th July, 1955 on the date when the Parent Act was first published in the Hyderabad Gazette Extraordinary. In view of Act X of 1956, no compensation could be determined by the Collector under section 17 by following the procedure laid down in section 18. Although section 16 of the Act provided for interim payment where the amount of compensation is not paid within a period.of six months from the date of vesting it is conceded by the learned Government Pleader that no interim payment of compensation has yet been paid to the inamdars since the Act came into force as early as on 20th July, 1955.

41. Mr. Narasaraju has attacked Act X of 1956 on the ground that it is not protected or saved by Article 31-A of the Constitution and it does not authorise acquisition of the property but only taken away from the purview of the Parent Act the provisions relating to section 3(2)(g) relating to payment of compensation to the inamdar and therefore the amending Act is not a law within the meaning of Article 31-A and it has therefore to be struck down as unconstitutional.

42. The learned Advocate-General to whom we have given notice to assist us has contended that the Abolition Act is an Agrarian Reform and any legislation relating to Agrarian Reforms falling under Article 31-A cannot be challenged on the ground that it has not laid down the principles of compensation or the principles provided are illusory or unworkable or that the compensation provided is not adequate. It is next urged that the abkari rights in question are also rights appurtenant to the grant or ancillary to the inam and the income derived thereunder is a benefit arising out of the land and therefore cannot be separated from the grant of the inam and as such the legislative competency cannot be questioned. It is also contended by the learned Advocate-General that the original Act is not affected by the Amending Act and Act X of 1956 is also within the legislative competency under Article 31-A of the Constitution.

43. It is Mr. Narasaraju's case that this enactment is not saved or protected by Article 31-A of the Constitution as on the date of the legislation of the Parent Act and on the date of the Amending Act Entry 36 of the Seventh Schedule of List II and Entry 42 of List III remained unaffected. It is the Seventh Amendment that deleted Entry 36 from List II and substituted the present Entry. In the Seventh Schedule to the State List prior to the Seventh Amendment, Entry 36 reads: “Acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of Entry 42 of List III.” Entry 42, List III, reads:—

“Principles on which compensation for property acquired or requisitioned for 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.”

44. The substituted Entry 42 consequent on the Seventh Amendment reads: “Acquisition and requisitioning of property.” It is therefore argued by Mr. Narasraju that this legislation is unaffected by Article 31-A as the provision relating to payment of compensation for property acquired was not amended, and therefore the Abolition Act must contain principles on which compensation has to be determined and the form and the manner in which such compensation has to be given. According to him, his case falls under Article 31(2) of the Constitution. Article 31(2) recites:

“No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of 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 compensation is to be determined and given; and no such law shall be called in question in any Court on the ground that the compensation provided by that law is not adequate.”

45. The question is whether it is within the competency of the Legislature to abolish estates without providing for compensation and the principles for determination thereof, and if it does contain the principles of compensation, whether the principles are illusory or unworkable, thereby rendering the compensation nugatory. Mr. Narasaraju's contention is that what is to be found in Article 31(2) is also to be found in Entry 36 in List II and Entry 42 in List III, prior to the Seventh Amendment and therefore a legislation can be invalid on either of the two grounds namely, that it is outside Entry 36 and Entry 42, or that the legislation contravenes Article 31(2). It is also argued that the Seventh Amendment of the Constitution which come into effect on 1st November, 1956 has no retrospective operation and what is contained or stated in Article 31(2) is made an integral part of the compensation to be given under Entry 42, and that being so the law which did not provide for compensation or which did not specify the principles on which compensation has to be paid or worked out would be outside Entry 42 of List III and therefore outside the legislative competence of the State Legislature. According to him notwithstanding Article 31-A, the Parent Act i.e, the Abolition Act was a still born child and had no effect or force of law. It is also contended by him that even if Article 31-A has retrospective operation, it will not have the effect of reviving a law which at the time of passing was null and void. It is further argued by him that the impugned enactment has to be construed as if it was not on the Statute Book on the day when it came into force and it cannot be revived.

46. Therefore, it has to be seen whether this legislation is void ab initio for the reason that it was beyond the legislative competence or power in view of Entry 36 and Entry 42 in the Seventh Schedule prior to its amendment. We may first point out that the doctrine of eclipse will have no application to post-constitution laws infringing fundamental rights as they would be ab initio, void in toto or to the extent of contravention of their fundamental rights. He has relied on the decision of Sundarramier and Co. v. State of Andhra Pradesh, to show that there is constitutional prohibition for this legislation and that the doctrine of elipse, cannot be invoked. Venkatrama Iyer, J., who spoke for the Court observed:

“Now in considering the question to the effect of unconstitutionality of a statute, it is necessary to remember that unconstitutionality might arise either because the law is in respect of a matter not within the competence of the Legislature, or because the matter itself being within its competence, its provisions offend some

47. Constitutional restrictions…………… Thus, a law of the State on an Entry in List I, Schedule VII of the Constitution would be wholly incompetent and void. But the law may be on a topic within its competence, as for example, an Entry in List II, but it might infringe restrictions imposed by the Constitution on the character of the law to be passed, as for example, limitations enacted in Part III of the Constitution. Here also, the law to the extent of the repugnancy will be void. Thus a legislation on a topic not within the competence of the Legislature and a legislation within its competence but violative of Constitutional limitations have both the same reckoning in a Court of law; they are both of them unenforceable. But does it follow from this that both the laws are of the same quality and character, and stand on the same footing for all purposes?…This distinction has a material bearing on the present discussion. If a law is on a field not within the domain of the Legislature, it is absolutely null and void, and a subseque it cession of that field to the Legislature will not have the effect of breathing life into what was a still-born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the Legislature but its provisions disregard Constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re-enactment.”

48. Their Lordships of the Supreme Court in Deepachand's case and Mahendra Lai's case, have clearly stated that the doctrine of eclipse will have no application to post-Constitutional laws infringing fundamental rights.

49. Therefore what falls to be determined is whether the Legislature had power to legislate this enactment having regard to Article 31(2) and Entries 36 and 42 prior to the Seventh Amendment and whether this legislation is saved by Article 31-A.

50. In State of Bihar v. Kameswhwar Singh, Mahajan, J., as he then was, dealing with the competence of Legislature to enact Legislation vesting the inams in the State without providing for compensation observed:

“This head of legislation seems to have been expressly mentioned in the Concurrent List not only in view of the accepted principle of law that in case of compulsory acquisition of property compensation had to be made but also in view of the clear and mandatory provisions of Article 31(2) which require that a law authorising the taking or acquisition of property will be void, if it does not provide for payment of compensation for the property acquired or does not either fix the amount of compensation or specify the principles on which and the manner in which the compensation is to be determined and ‘given’. The power of legislation In Entry 42 is for enacting the principles of determining such compensation and for paying it. The principles to be enacted are for determining the equivalent price of the property taken away. ………. I know of no principles for determination of compensation which result in its non-payment except in the Act under notice. All legislative heads have to be reasonably construed and the power given to bring about the result of payment of compensation and not non payment of the same.”

51. That was the law declared by the highest Court in the land prior to the Fourth Amendment of the Constitution. Article 31-A, after the Fourth Amendment of the Constitution reads:

“31-A:—(1) 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 extinguishment or modification of such rights or,

(b) xxxxxx

(c) xxxxxx

(d) xxxxxx

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 Article 14, Article 19 or Article 31.

Provided that where such law is a law made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such, law having been reserved for the consideration of the President has received this assent…………

2. (a) the expression ‘estate’ shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include.

……………………………………………………………………………

(iii) Any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans.

(b) The expression ‘right’ in relation to an estate shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor tenure holder (rayat,. under raiyat) or other intermediary and any rights or privileges in respect of land revenue.”

52. This amendment is made retrospective and is deemed to have always been-inserted in the Constitution from its very commencement. Article 31-A therefore provides that no law either past or future which affected the rights of an inamdar, in whole or any part of any estate shall be void on the ground that it is repugnant or inconsistent with any of the fundamental rights. In other words, no such enactment can be challenged or attacked on the ground that no compensation has been provided for or that there is no public purpose or it violates the fundamental rights., The Supreme Court in Bhairebendra v. State of Assam, had to consider the constitutional validity of the Assam State Acquisition of Zamindaries Act (XVIII of 1951) and whether it was protected by Article 31-A; S.R Das, C.J, speaking, for the Court observed:

“The Act and its amendments are challenged on the ground that they infringe the fundamental rights of the plaintiff under Article 31(2) and Article 14 of the Constitution. If however the legislation is protected under Article 31-A of the Constitution then the question of infringement of fundamental rights of the plaintiff under Articles 31(2) and 14 will not arise. Article 31(4) protects an Act falling, within it only against the contravention of the provisions of clause (2) of that Article but not of those of Article 14. Article 31-A however protects an Act falling within it even if it is in consistent with or takes away or abridges any of the rights conferred by the provisions of Part III. It is obvious therefore that Article 31-A gives greater and wider protection than does Article 31(4) if therefore Article 31-A applies no question can arise under Article 31(2) or Article 14 and in that case Article 31(4) need not be invoked at all……

An “estate”, within the meaning of the Assam Land and Revenue Regulation (I of 1886) is also an “estate” within the meaning of the Goalpara Tenancy Act (I of 1929) and of the impugned Act. The impugned Act, therefore, is a law providing for the acquisition by the State of an “estate within the meaning of Article 31-A and that being so, its constitutionality or validity cannot be questioned on the ground of any contravention of any of the provisions of Part III of the Constitution dealing with fundamental rights.”

53. The Supreme Court had again to consider the constitutional validity of the Bombay Tenancy and Agricultural Lands (Amendment) Act (XIII of 1956) in Sri Ram Ram Narain v. State of Bombay. It was held that “the impugned Act is covered by Article 31-A and is protected from attack against its constitutionality on the score of its having violated the fundamental rights enshrined in Articles 14, 19 and 31 of Constitution.” In Atma Ram v. State of Punjab, the Supreme Court considered the question of legislative competence and validity of the Tenancy Laws—Punjab Security of Land Tenure Act (X of 1953) as amended by Act (XI of 1955). Upholding the constitutional validity, their Lordships held that “the provisions of Article 31-A bearing on the construction of the expression” estate or rights in an estate, have been deliberately made as wide as they could be, in order to take in all kinds of rights-quantitative and qualitative in a area coextensive with an estate or only a portion thereof. Keeping in view the fact that Article 31-A was enacted by two successive amendments one in 1951 (First Amendment) and the second in 1955 (Fourth Amendment) with retrospective effect, in order to save legislation effecting agrarian reforms, it must be held that those expressions have been used in their widest amplitude, consistent with the purpose behind those amendments. A piece of validating enactment purposely introduced into the Constitution with a view to saving that kind of legislation from attacks on the ground of constitutional invalidity, based on Articles 14, 19 and 31, should not be construed in a narrow sense. On the other hand, such a constitutional enactment should be given its fullest and widest effect, consistently with the purpose behind the enactment, provided, however that such a construction does not involve any violence to the language actually used.” In Attar Singh v. State of U.P. U.P Consolidation of Holdings Act (V of 1954) (as amended by U.P Act XVI of 1957) was challenged and one of the grounds, taken was that section 29-B of that Act which provides for compensation gives inadequate compensation and is therefore hit by Article 31(2) of the Constitution. It was held that the impunged provisions did not contravene Article 14 or Article 31(2) (as it was before the Fourth Amendment) of the Constitution. To the same effect was the opinion of the Supreme Court in State of Vindhya Pradesh v. Moradhwaj Singh, where the constitutional validity of the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act (II of 1952) came up for consideration. Wanchoo, J., observed:—

“We shall first deal with the appeal of Brijindar Singh. Learned Counsel for Brijindar Singh was unable—and in our opinion rightly—to challenge the constitutionality of the Act as a whole in view of Article 31-A of the Constitution and the decisions of this Court in State of Bihar v. Kameshwar Singh, Visweshwar Rao v. State of Madhya Pradesh, Raja Suriya Pal Singh v. State of U.P . 1952 S.C.R 1056., Gajapati Narayana Rap v. State of Orissa . 1953 S.C.J 592; A.I.R 1953 S.C 375., Thakur Amar Singhji v. State of Rajasthan . 1955 S.C.J 523; 1955 2 S.C.R 303., Raja Bhairebendra Narayan Bhup v. State Of Assam. . 1956 S.C.J 543; 1956 S.C.R 303., Sri Ram Ram Narain v. State of Bombay, Raghbir Singh v. State of Ajmer . 1959 S.C.J 629; A.I.R 1959 S.C 475. and Atma Ram v. State of Punjab, relating to similar legislation in the States of Bihar, Madhya Pradesh, Uttar Pradesh, Orissa, Rajasthan, Assam, Bombay, Ajmer and Punjab……”

54. In Jada Singh v. Himachala Pradesh Administration . 1961 1 S.C.J 185; A.I.R 1960 S.C 1008., the Supreme Court held that “the validity of the provisions for acquisition by the State of the lands of the land-owners for compensation and determinable in accordance with the provisions of Schedule II is also not liable to be challenged under Article 31 read with Article 31-A.” Subba Rao, J., (as he then was) dealt with the scope of Article 31-A in. Kochuni v. State of Madras and Kerala . 1961 2 S.C.J 443; A.I.R 1960 S.C 1080.. The following is the relevant portion:

“Unhampered by any judicial decision, let us now scrutinise the express terms of the Article to ascertain its scope and limitations. Sub-clause (a) of Article 31-A (1) enables the State to acquire any estate or or any rights therein or to extinguish or modify any such rights. “Estate” is defined in clause (2)(a) to have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and by inclusive definition, it takes in any jagir inam or muafi or other similar grants and in the State of Madras and Kerala any Jamam right. Clause (2)(b) defines the expression rights in relation to an estate to include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder raiyat, under raiyat or other intermediary and any rights or privileges in respect of land revenue. If an estate so defined is acquired by the State, no law enabling the State to acquire any such estate can be questioned as inconsistent with the rights conferred by Articles 14, 19 or 31 of the Constitution. So too any law extinguishing or modifying any such rights mentioned in clause (1)(a) and defined in clause 2 (b) cannot be questioned on the said grounds………. The definition of “estate” refers to an existing law relating to land tenures in a particular area indicating thereby that the Article is concerned only with the land tenure described as an “estate”. The inclusive definition of the rights of such an estate also enumerates the rights vested in the proprietor and his subordinate tenure holders. The last clause in that definition viz., that those rights also include the rights or privileges in respect of land revenue, emphasises the fact that the Article is concerned with land tenure. It is therefore manifest that the said Article deals with the tenure called “estate” and provi es for its acquisition or the extinguishment or modification of the rights of the landholder or the various subordinate tenure holders in respect of their rights in relation to the Estate.”.

55. In Gangadhara Rao v. State of Bombay, the Supreme Court considered the validity of the Bombay Personal Inam. Abolition Act (XlII of 1953) and held:

“Even though by virtue of Sub-section 5 of section 17 of the Bombay Personal Inams Abolition Act, 1953 no compensation is to be paid for the loss to the inamdar of what he used to get because of the difference between the quit rent and the full assessment yet Article 31-A of the Constitution saves the Bombay Personal Inam Abolition Act, 1953 from any attack under Article 31 which is the only Article providing for compensation.”

56. Therefore, in this case not only the abolition of inams of the estate and the rights of the inamdar were held to be protected under Article 31-A, but also the provision ‘no compensation is to be paid for the loss of the inamdar’ was held to be saved by Article 31-A of the Constitution, from any attack under Article 31 which is the only Article providing for compensation.

57. The same Act again came up for challenge in Rangildas Varajdas Khandwala v. Collector of Surat where the attack was based on the immutability of the sanad. It was held that the contention that in view of Article 294(b) of the Constitution and in view of the fact that the holder was given a Sanad when his inams was recognised it was not open to the State to enact a law which would in any way vary the terms of the Sanad, cannot be accepted and the Act is constitutional. In Mahadeo v. State of Bombay the Supreme Court held that the Bombay Tenancy and Agricultural Lands Act was protected by Article 31-A of the Constitution. In State of Bihar v. Rameshwar Pratap, the scope of Articles 31 and 31-A and Entries 36 and 42 came nip for consideration. Das Gupta, J., who spoke for the Court pointed out:

58. It is worth noticing in this connection that in Sir Kameshwar Singhs case the argument that quite a part from anything in Article 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 III.”

“42. Principles on which compensation for property acquired or requisitioned for the purposes of the Uu???on 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.”

59. 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 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 Article 31(2). That obstacle also disappears if the law in question is one within Article 31-A.”

60. Another decision which we may notice is Sonapur Tea Co. Ltd. v. Must. Mazirunnessa. where the constitutional validity of the Assam Fixation of Ceiling on Land Holdings Act (I of 1957) was raised. It was held that:

“Where the lands sought to be acquired under the Act are admittedly an “estate” as defined by Article 31-A (2) the rights which are extinguished by the acquisition of such lands are undoubtedly “rights in relation to an estate” as defined by that provision. The expression “rights in relation to an estate” in the Article is of a very wide amplitude and as such the context requires that it must receive a very liberal interpretation.”

61. The Supreme Court in Ranjit Singh v. State of Punjab, considered the validity of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (L of 1948) as amended by Act (XXVII of 1960) Punjab Gram Panchayat Act (IV of 1953) and Punjab Village Common Lands (Regulation) Act (I of 1954). In that case by the Holdings (Consolidation and Prevention of Fragmentation) Act, portions of ‘lands from those commonly owned by the proprietors had been reserved for the Village Panchayat and given over to it for diverse purposes and other portions had been reserved either for non-proprietors or for the common purposes of villages. The provisions of the Punjab Village Common Lands (Regulation) Act (I of 1954) resulted in the vesting of all rights of management in the Shamilat deh in the village Panchayat and in the land in the abadi deh under a house owned by a non-proprietor in the non-proprietor. The proprietors were not paid compensation for the lands and it was the taking away and allotment of these lands which were the subject of challenge in those petitions. Hidayatullah, J., speaking for the Court stated:

“In Kochuni case, reference was made to Atma Ram v. State of Punjab and the following passage quoted to show that agrarian reform was the core of Article 31-A.

“Keeping in view the fact that Article 31-A was enacted by two successive amendments—one in 1951 (First Amendment) and the second in 1955 (Fourth Amendment) with retrospective effect, in order to save legislation effecting agrarian reforms, we have every reason to hold that those expressions have been used in their widest amplitude, consistent with the purpose behind those amendments.”

“The expressions from Article 31-A which were given such wide connotation were “any estate or of any rights therein” and the “extinguishment or modification of any such rights” occurring in Article 31-A (1). The Act there considered was the Punjab Security of Land Tenures Act (X of 1953) as amended by Act (XI of 1955). It limited the area of land for “self cultivation” gave the tenants rights to purchase lands with them and in this way ‘modified’ the rights of landlords. It also released excess land for redistribution. This was regarded to be agrarian reforms and thus within the protection of Article 31-A. The observations of this Court in Thakur Raghubir Singh v. Court of Wards, Ajmer, were explained and were confined to the facts of that case. Article 31-A was apparently not then viewed from the angle later adopted in the Kochuni case, namely that Article 31-A was concerned with ‘tenures’ as such. There is reason to think that the Kochvni case was regarded on other occasions too, as one decided on its own facts. In Gangadhar Narayana Rao v. State of Bombay, in considering the words “estate” and “rights in an estate” the right of an inamdar under the Bombay Acts Nos. II, VII of 1863 to appropriate to himself the difference between the full assessment and the quit rent was treated as a right in the estate and its extinguishment, or modification, was considered to be protected by Article 31-A. Similarly, in Sri Ram Ram Narain Medhi v. State of Bombay, the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956 (which amended Bombay Act LXVII of 1948) was in question. It sought to distribute equitably the lands between the landlords and tenants by way of compulsory purchase of all surplus lands by tenants in possession thereof from 1st April, 1957 (known as the Tillers’ day). The fundamental idea was the prevention of concentration of lands in the hands of a few landholders. It was pointed out that this was protected by Article 31-A………. See also State of Bihar v. Rameshwar Pratap Nara in Singh and State of Bihar v. Umesh Jaha. In the latter a provision of the Bihar Land Reforms Act, 1950 as amended by the Bihar Land Reforms (Amendment) Act, 1959 which empowered the collector to annul anticipatory transfers of land designed to defeat the object of the Act was held to be protected by Article 31-A though the section by itself did not provide for the ‘extinguishment or modification’ of any rights in an estate. It was justified as an integral part of a statute which did so and thus received the protection of Article 31-A along with the parent Act…………………………………………………………………………………….

62. The four Acts namely the Consolidation Act, the Village Panchayat Act, the Common Lands Regulation Act and the Security of Tenure Act are a part of a general scheme of reforms and any modification of rights such as the present has the protection of Article 31-A.”

63. In Vajravelu v. Special Deputy Collector, the scope of Articles 31-A and 31-A (2) came up for consideration. His Lordship Mr. Justice Subbarao, as he then was speaking for the Court observed:

“Under Article 31(2) and 2-A of the Constitution a State is prohibited from making a law for acquiring land unless it is for a public purpose and unless it fixes the amount of compensation or specifies the principles for determining the amount of compensation. But Article 31-A lifts the ban to enable the State to implement the pressing agrarian reforms. The said object of the Constitution is implicit in Article 31-A. It does not however enable the State to acquire the lands of citizens without reference to any agrarian reforms in derogation of their fundamental rights without payment of compensation, for to allow the State to do so will deprive Article 31(2) practically of its content. Therefore, Article 31-A will apply only to a law made for acquisition by the State of any ‘estate’ or any rights therein or for extinguishment or modification of such rights if such acquisition, extinguishment or modification is connected with agrarian reform.”

64. Subba Rao, J., (as he then was) who spoke for the Court in Jeejeebhoy v. Assistant Collector, Thana, observed that:

“If a particular statute attracts Article 31-A (1)(a) it cannot be invalidated on the ground that it does not comply with the provisions of Article 31(2) of the Constitution, namely, that the Act has not fixed the amount of compensation. But Article 31-A cannot have any bearing in the context of an Act which had no legal existence at the time the Constitution came into force. It does not purport to revive laws which were void at the time they were made. The analogy drawn between a fundamental right under Article 31(2) and the conditions laid down in section 299 of the Government of India Act, 1935 if it has any justification, is irrelevant in the context of a pre-Constitution void law. In this view Article 31-A does not come into the picture at all.”

65. It therefore follows in the light of thepronouncements of the Supreme Court that Article 31-A protects or saves an enactment relating to agrarian reforms— like the impugned legislation, and it cannot be invalidated on the ground that it does not comply with the provisions of Article 31(2) of the Constitution.

66. Mr. Narasaraju's next submission is that when the Legislature has purported to exercise the power of acquisition under Entry 36 on List II and Entry 42 in List III of the Seventh Schedule, prior to its amendment the law of ‘eminent domain’ is attracted and the principle of compensation is one that yields to the concept of just equivalent so that if the law exercising acquisition does not provide for compensation it is colourable exercise Of power under Entry 42, and therefore, on that ground it is a case of lack of legislative competency in which case Article 31-A does not cure the invalidity. In other words it is his contention that Article 31-A cures the contravention of Article 31(2), but does not cure the invalidity arising from lack of legislative competency. We are unable to agree with the proposition put forward by Mr. Narasaraju. As rightly pointed out by the learned Advocate-General, legislation by a State with respect to acquisition and requisitioning can be of two kinds and be competent legislation of both kinds separately. Firstly it can be a legislation regarding acquisition and requisitioning simpliciter without prescribing any compensation for such acquisition and requisitioning and without laying down any principles of compensation. Secondly, it cannot be a legislation regarding acquisition and requisitioning prescribing the principles on which such compensation is to be given. In the first case, the legislation by a State is based on Entry 36, List II. In the second case, it is based both on Entry 36 of List II and Entry 42 of List III, and in either case it is a valid and competent legislation. This is because the legislation based on Entry 36 of List II need not necessarily be based similtaneously on Entry 42 of List III. The words “subject to Entry 42 in List III” do not mean that there can be no legislation on the basis of Entry 36 of List II without there being also legislation along with it based on Entry 42 of List III.

67. In Kameshwar Singh's case (State of Bihar v. Kameshwar Singh), the words “subject to Entry 42 in List III” came up for interpretation. The interpretation put upon these words by Patanjali Sastri C.J, is:

“Those words in my opinion mean no more than that any law made under Entry 36 by a State Legislature can be displaced or overridden by the Union Legislature, making a law under Entry 42 of List III…………………. The fact is that the law-making power of both Parliament and State Legislatures can be exercised only subject to the aforesaid two restrictions, not by reason of anything contained in the Entries themselves, but by reason of the positive provisions of Article 31(2) and, as laws falling under Article 31(4) or under Article 31-A and 31-B cannot be called in question in a Court of law for non-compliance with those provisions, such laws cannot be struck down as unconstitutional and void.”

68. Mahajan, J., (as he then was) in the majority judgment expressed a similar view:—

“The two entries referred to above are merely heads of legislation and are neither interdependent nor complimentary to one another. It is by force of the provision of Article 31(2) that it becomes obligatory to legislate providing for compensation under Entry 42 of the Concurrent List in order to give validity to a law enacted under Entry 36 and not by reason of the use of the words “subject to” in the wording of the Entry.”

69. Das, J., (as he then was at page 284 (para. 92) observed)

“This cannot possibly be the intention of the framers of our Constitution…… I agree with S.K Das J., that the words, “subject to” have not the meaning sought to be given to them by Mr. P.R Das but that they mean ‘but not’ so as to indicate that the scope of Entry 36 in List II is restricted, that is to say, that the subject matter of Entry 42 in the List III is not within the content of Entry 36 in List II…… It is in order to prevent this argument and out of abundant caution that the subject-matter of Entry 42 in List III has been excluded from the content of Entry 36 in List II by the words ‘subject to’ etc., etc., and Parliament may, therefore freely make a law with respect to the matter thus excluded from Entry 36 in List II and? set forth as a separate and independent item in Entry 42 in List III.”

70. Das, J., neatly summed up the position at page 283 (para. 91) as follows:—

“This indicates that the power of acquisition and the obligation to, pay compensation are two separate and distinct concepts although the second follows, the first. If the obligation to pay compensation were an integral part of the concept or he meaning of ‘taking’ itself, then this part of the Fifth Amendment was. wholly unnecessary. It follows, therefore that the expression “acquisition” does not, by itself and without more, import any obligation to pay compensation. It is urged by Mr. P.R Das that Entry 42 in List III really implements the obligation implicit in Entry 36 in List II and the two entries are complementary to each other. If this obligation were not implicit in Entry 36, in List II, then where else, it is asked is the obligation to pay compensation to be found?

The obvious answer is that that obligation is to be found in Article 31(2) in Part III of our Constitution.”

71. These observations of Das J. (as he then was) afford a complete answer to the argument advanced by Mr. Narasaraju. The manifest intention of the Fourth Amendment of the Constitution by inserting Article 31-A providing for retroactive operation is to save any unconstitutionality in enactments designed for land reforms by reason of contravention of Article 31(2).

72. It may be relevant to point out in this connection that the Abolition Act does provide the principles for determination of compensation payable to the inamdars as detailed in sections 12, 13 and 14, although the operation of clause (g) of section 3(2) was postponed. The adequacy or otherwise of the provisions relating to payment of compensation is a matter within the competence of the Legislature and the Court is. not concerned with the justice or propriety of the principles upon which the determination of compensation has to be made or the form and the manner in which it has to be given. The impugned enactments cannot therefore be invalidated either on the ground that principles of compensation have not been laid down in relation to various rights enumerated in section 3(2)(b) or that even in respect of the land the principles laid down in the relevant provisions do not accord with the provisions of Article 31(2) of the Constitution. Nor can it be said that the impugned Acts suffer from legislative incompetence. Article 31-A applies to laws made for acquisition by the State of any “estate” or any rights therein or for the extinguishment or modification of such rights if such acquisition, extinguishment or modification is connected with agrarian reforms.

73. We therefore find no merits in this appeal. It is accordingly dismissed with costs.

74. Appeals dismissed.