STATE OF BIHAR versus RAMESHWAR PRATAP NARAIN SINGH AND OTHERS.

April 25.

RAMESHWAR PRATAP NARAIN SINGH AND OTHERS.

(B. P. SINHA, c. J., A. K. SARKAR, K. c. DAS GUPTA, N. RAJAGOPALA AYYANGAR and J. R. MUDHOLKAR JJ.)

Mela-Right of ex-proprietors to hold Melas after abolition of proprietory tenures-Enactment empowering State Government to hold such Me!as-If violative of fundamental rights-Legislative competence-Acquisition without public purpose-Constitution of India, Arts. r4, I9, JI, 3rA, 246-Bihar Land Reforms Act, 1950 (Bihar Act 30 of z950), ss. 4, 6-Bihar Land Reforms Amendment Act, 1959 (Bihar Act XV I of z959), ss. 4, 7A, 78, 7C.

After the estates and tenures of proprietors or tenure-holders had passed to and became vested. in the State by virtue of the Bihar Land Reforms Act, 1950, the Revenue Authorities interfered with the rights of those ex-proprietors and ex-tenure-holders to hold Melas on lands which were occupied by them thereafter as occupancy raiyats and collected toJ!s from such Melas on behalf of the Government wherepon those intermedia-ries made applications to the High Court for writs restraining the Government from such interference which were allowed by the High Court. During the pendency in this Court of these appeals preferred by the Officers of the State of Bihar against the order of the High Court the Bihar Land Reforms Amend-ment Act, 1959, was passed amending the Bihar Land Reforms Act of 1950 with retrospective effect by which the word Mela was added after the words jalkars, hats and bazars in s. 4, cl. (b) of the amended Act. Further amendments provided inter alia that the State Government and not the intermediaries except with the consent of the State Government shall have the right to hold such Melas. The main question arising for decision in these appeals and certain other applications made to this Court under Art. 32 of the Constitution of India was whether the amending legislation violated Arts. 14, 19 and 31 of the Con-stitution.

Held, that the Bihar Land Reforms Amendment Act, 1959, is law providing for the acquisition. by the State of rights in an "estate" within the meaning of Art. 31A of the Constitution and even if it is assumed that it abridges the rights conferred by Arts. 14, 19 and 31 of the Constitution its provisions are not void on that ground.

The amending legislation was within the legislative com-petence of the Legislature under Art. 246 of the Constitution and after its amendment the legislative list permitted the State

Legislature to enact law of acquisition even without public purpose.

State of Bihar v.

The State of Bihar v. Sir Kameshwar Singh, [1952] S.C.R. 889, considered.

Ra:meshwar Pratap

JURISDICTION: Civil

Appeal Narain Sin:h

CIVIL APPELLATE No. 27 of 1960

WITH

Civil Appeals Nos. 574, 92, 411 and 285 of 1960, 351 of 1959 and Petitions Nos. 20 and 106 of 1960.

Appeal by special leave from the judgment and order dated August 6, 1957, of the Patna High Court in M. J. C. No. 57 of 1956.

Lal Narayan Sinha and S. P. Varma, for the appel-lants (in C. A. No. 27 of 1960).

D. Goburdhan, for respondents Nos. 1 to 7.

K. K. Sinha, for the appellant (in C. A. No. 574 of 1960).

D. P. Singh, for the respondent.

D. P. Singh, for the appellants (in C. A. No. 92

of 1960).

D. Goburdhan, for the respondents.

R. C. Prasad, for the appellants (in C. A. No. 411

of 1960).

L. K. Jha, S. K. Jha and K. K. Sinha, for the res-

pondents.

S. P. Varma, for the appellants (in C. A. No. 285 of

L. K. Jha, R. K. Garg and S. C. Agarwal, for the

respondent.

S. P. Varma, for the appellant (in C. A. No. 351

of 1959).

R. K. Garg and S. 0. Agarwala, for the respondents.

Tarkeshwar Dayal, K. K. Sinha and R. 0. Prasad, for the petitioners (in Petition No. 20 of 1960).

Lal Narayan Sinha and S. P. Varma, for respon-dent No. 1.

R. K. Garg and S. C. Agarwala, for the petitioner

(in Petition No. 106 of 1960).

S. P. Varma, for respondent No. 1.

1961. April 25. The judgment of the Court was delivered by

State of Hihar

v. DAS GUPTA, J.-The common question which ari-Ramesh'."a' Pratap ses for decision in this group of cases is as regards the Nararn Singh validity of the Bihar Act No. XVI of 1959 (Bihar Das Gupta J. Land Reforms Amendment Act, 1959), in so far as it amends with retrospective effect sections 4 and 6 of the Bihar Land Reforms Act, 1950, to be indicated later, and inserts the new sections, s. 7B and s. 7C in that Act. It appears that sometime after the Bihar Land Reforms Act became law and action was taken under section 3 thereof by the State Government issu-ing notifications, declaring that the estates or tenures of proprietors or tenure-holders, specified in the noti-fications had passed to and become ·vested in the State, the Revenue authorities. started interfering with the rights of those ex-proprietors and ex-tenure-holders to hold Melas on lands of which they were thereafter in occupation as occupancy raiyats under the State and started settling rights to realise tolls from such Melas on behalf of the State Government. Aggrieved by this action taken by the Revenue autho-rities on behalf of the State Government applications were made by several of these erstwhile intermediaries -now occupancy raiyats-to the High Court of Patna for writs restraining the Government and its officers from such interference with their rights.

Five such applications have given rise to the five appeals which are numbered as C. A. No. 351 of 1959, C. A. No. 27 of 1960, C. A. No-. 92of1960, C. A. No. 285 of 1960 and C. A. No. 411 of 1960. The High Court held that in view of the provisions of s. 6 of the Bihar Land Reforms Act (before its amendment) and the fact that the provisions made ins. 4(a) of the Act about the consequences that would ensue on the vest-ing of an estate or tenure in the State were "subject to" the provisions of s. 6, the State had no right to hold Melas on the Bakasht lands of the ex-intermedia-ries-now occupancy raiyats. Accordingly the High Court allowed the applications and issued writs as prayed for. Against these orders of the High Court the State of Bihar and its officers have prefArred the

five appeals mentioned above, after obtaining special leave from this Court.

State of Bihar v. Narnin Singh Das Gupta J.

State of Bihar Some time after special leave was obtained by these v. appellants the Bihar Legislature enacted in 1959, theRa,,mhwar Pratap Bihar Land Reforms Amendment Act, 1959, (Bihar Narnin Singh Act XVI of 1959). This Act amended inter alia sec-tion 4, cl. (b) of the Bihar Land Reforms Act, 1950, Das Gupta J. by adding the word "Mela" after the words "jalkars, hats, and bazars" and by omitting the words "subject to the subsequent provisions of this Chapter" in cl. (a) of section 4. It also amended section 6 of the 1950 Act by substituting for the words "Notwithstanding anything contained in tllis Act" the words "subject to the provisions of sections 7A and 7B". Of theses. 7B provides that "Where on any land deemed to be set-tled with the intermediary under the provisions of sec-tion 5, section 6 or section 7, Mela was being held by the intermediary at any time within 3 years of the date of vesting, the right to hold such Mela on such land shall, with effect from such date, vest in the State and notwithstanding anything contained in any law, the State shall have and the intermediary shall not, except with the consent of the State Government have the right to hold such Mela on such land or to do anything which may prejudicially a.ffect such Mela". Section 7C contains provisions as regards settlement of ha.ts, bazars or melas referred to in s. 7 and sec-t.ion 7B and provides inter alia that settlements will be made with the outgoing intermediary or his heir after application is received from him and if there are several of them who apply for settlement, with the most suitable of them. The Amending Act made the amendments mentioned above, except the insertion of s. 70, retrospect.ive, with effect from the date of enftct-ment of the parent Act. The Amending Act had already been passed, when several other applications under Art. 226 of the Constitution for similar relief against the interference by the Government with the intermediaries' right to hold Melas came up for consi-deration before the High Court. The High Court reject-ed these applicants' at.tack against the validity of the Amending Act and held that in view of the provisions

'9[6]' now made the applicants were not entitled to any State of Bihar relief. Civil Appeal No. 574 of 1960 has been prefer-v. red by one of such applicants on certificate granted

Rameshwa. l'ratap by the High Court. Narain Singh The two applications under Art.

The two applications under Art. 32 of the Constitu-

tion were filed in this Court for writs of mandamus Das Gupta J. against the State of Bihar and its officers restraining them from interfering with the applicant's right. to hold melas on their lands. Both of these were filed after the Bihar Land Reforms Amendment Act, 1959, had become law.

It is obvious that if the Amending Act is va.lid legislation, in so far as it amends with retrospective effect s. 4 and s. 6 of the 1950 Act as mentioned above and inserts section 7 B, the ex-intermediaries have not and the State has the right to hold melas on the Bakasht lands. The main question therefore is w he-ther this is valid legislation. To answer this ques-tion we have to examine in the first place whether the Bihar Legislature which enacted the Amending Act had on that date the legislative competencfo under Art. 246 of the Constitution to do so; and secondly, whether the law was void bf·cause of the provisions of Art. 13 of the Constitution. The Amending legislation was clearly within Item 42 of the Concurrent List, being law as regards acquisition of property.Mr. Tarkeshwar Dayal, who appeared on behalf of one of'the ex-intermediaries submitted that this was really not matter of land reform; the purpose of the Amending legislation being only to augment the re-venue of the State. It is true that the law by taking the right to hold melas from certain persons and giving it to the State is likely to augment the revenues of the State. It may well be that this object of augmenting the revenues was one of the main purposes behind the Amending legislation. That however is no reason to think that this legislation is not also concerned with land reform. It is however unnecessary for us to c01rnider this quest.ion further, for whether it is law as regards land reform or not, it is clearly and entirely as regards acquisition of propert.y. The question of the legislature having attempted legislation not within

its competence by putting it into the guise of legisla-

i96[1 ]

tion within its competence does not even arise. The State of Biha, conclusion that necessarily follows is that the amend-v. ing legislation was within the legislative competence llam.,hwa. P.atap of the Bihar Legislature under Art. 246 of the Narnin Singh Constitution.

This brings us to the main question in controversy. viz., whether the amending legislation is void on the ground that it violates Arts. 31, 19 and 14 of the Con-stitution. complete answer to this question is fur. nished in favour of the State if this is law within the saving provisions of Art. 31A. Art. 31A was enacted in the Constitution by the Constitution (First Amendment Act) with retrospective effect from the commencement of the Constitution. It was further amended by the Constitution (Fourth Amendment) Act, also with retrospective effect from the date of the commencement of the Constitution. This Article provides inter alia, that notwithstanding anything contained in Art. 13, no law providing for the acquisi-tion by the State of any estate or of any rights therein ............... shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Arts. 19, 31 and 14 of the Constitution. Is the amending legisla-tion law "providing for the acquisition by the State of any estate or of any rights therein?" Two argu-ments have been advanced on behalf of the ex-inter-mediaries to convince us that it is not such law. The first argument is that what the amending legisla-tion provides for is not "acquisition" at all within the meaning of Art. 31A as it is not "acquisition" for public purpose. It has been urged that the purpose is mere augmentation of revenue.

Das Gupta J.

It does not appear to us that when the right of holding the Mela is taken over by the State the only purpose is the augmentation of revenue. There is scope for thinking that the legislature believed that rilelas would be better run and be more in the interests of the general pJ!blic when run by the State than when they ~~.e,;:L~;ft witho11t control in the hands of private indivciduitls, With whom the profit motivo is

'9[6]' likely to be the sole guiding principle. It is unneces-State of B1har sary however to answer this question for, in our opin-v. ion, law, may be law providing for "acquisition" Rameshwar Prntap even though the purpose be hind the acquisition is not Narain Singh public purpose.

It is important to notice that the Constitution Das Gupta J. (Fourth Amendment) Act made important alterations in Art. 31 also. One of the amendmentB of Art. 31 was that clause 2 now provides that no property shall be compulsorily acquired, (1) save for public purpose and (2) save by authority of law which contains provisions for compensation for the property acquired and either fixes the amount of compensation or speci-fies the principles on which and the manner in which t,he compensation is to be determined and given. Then, Art. 31A provides inter alia that law provid-ing for "acquisition" will not be void on the ground that it is inconsistent with or takes away or abridges right conferred by Art. 31. Reading the two articles together as they stand after the fourth amendment of the Constitution it becomes obvious that when Art. 31A speaks of law of "acquisition" it contemplates law which may be for acquisition, though not for public purpose and lays down that even though this will be in violation of the fundamental right gua-ranteed by the first part of Art. 31(2) the law will not be void be ca use of such violation.

The question whether the validity of law for compulsory acquisition of property by the State can be challenged on the ground that the "acquisition" is not for public purpose had to be considered by this Court even before the amendment of Art. 31(2) as mentioned above in The State of Bihar v. Sir Kamesh-war Singh (1). Art. 31(2) as it then stood did not in so many words provide that no acquisition can be made save for public purpose; but it was a.:rgued on behalf of the State that such provision was implicit in the words of Art. 31(2). This argument was reject-ed by Mahajan and Chandrasekhara Aiyar, JJ., but it was accepted by Patanjali Sastri, C. J., and Das, J., both of whom held that the requirement of public (1) (1952] S.C.R. 889.

'9[[6]]' Slate of Bihar v. Narain Singh Dns Gupla j.

purpose being condition for compulsory acquisition '9[[6]]' laid down by Art. 31(2) the law was saved in spite of Slate of Bihar the violation of such condition by Art. 31( 4) and also v. Art. 31A. J\fokherjea, J., also said that the require- Rameshwar Praiap ment of public purpose was condition implied in the Narain Singh provisions of Art. 31(2). His Lordship then added: Dns Gupla j. "For my part, I would be prepared to assume that cl. (4) of Art. 31 relates to everything t!iat is provided for in clause (2) either in express terms or impliedly aud consequently the question of the existence of pu blio purpose does not come within the purview of an inquiry in the present case." It was in this state of judicial opinion that Art. 31(2) was amendf!d by the Constitution (Fourth Amendment) Act as mentioned above and the requirement of public purpose was ex-pressly made condition for compulsory acquisition by the State. The basis for the argument that the questi•m whether there was public purpose or not i~ open to judicial review in spite of Art. 31A has therefore disappeared.

It is worth noticing in this connection that in Sir Kameshwar Singh's case ([1 ]) the argument that quite apart from anything in Art. 31(2). as it then stood no la\v of ac·quisition could be made except for public purpose was sought to be reinforced by the words i:1 Item 36 of the State List and Item 42 of the Concurrent List: These items read as follows:-

"36. Acquisition or' requisitionihg of property,

except for the purprn;es of the Union, subje9t to the prnvisions of entry 42 of List III."

"42. Principles Oll· which compensation for pro-

perty acquired or requisitioned for the purposes of the Union or of Stat" or for any other public pur-pose is to be determined, and the form and the manner in which Huch compensation is to be give1i."

The argument 011 the baHis of these t1ntries was that the Su1te legislatures had no power to make la.w for itC<JUisition of property without fulfilling tho condition uf µublic 1H1rpo80. The Constitution (oeventh Amcnr.lmcnt) Ad which c:rnie iutu force on the lHt

(r) [i952] S.C.R. 889. 50

I96I day of November, 1956, deleted Entry 36 of the State List and substituted for the former phraseology of State of v /Ji/tar It em 4[2 ]o t oncurrent [f ][h ]L' 1st t wor s ' 'acqu1s1 · 't' ion Ramesltw~r Pratap and requisition of property". It is quite- clear that Narain Singh after its amendment the legislative list permits the State legislature to enact law of acquisition even Das Gupta J. without public purpose; and that the only obstacle to such law 'being enacted without public purpose is the provisions of Art. 31(2). That obstacle also disappears if the law in question is one within Art. 31A.

It was next contended that the acquisition of the right to hold the Mela, for which the amending Act provides is not acquisition, in any case, of "rights" "in any estate" within the meaning of Art. 31A as defined in cl. 2(b) of the same Article. It was argued that this definition includes only rights of persons who are intermediaries and unless tho raiyat whose rights are being acquired is an intermediary, that is, per-. son between the State and the tiller of the soil, his rights are not rights within the definition of "rights in relation to an estate"; and consequently, Jaw providing for acquisition of the rights of such raiyat is not law within the saving provisions of Art. 31A. It is pointed out that on the d1J,te the Amending Act was passed the ex-intermediaries had ceased to exist as intermediaries and had become occupancy raiyats under s. 6 of the parent Act. What were being acquired therefore, it is argued, were not rights of intermediaries but rights of raiyats who had ce,i,sed to be intermediaries. It has to be noticed that the impugned provisions amending s. 4 and s. 6 and s. 7(b) have been given retrospective effect so that the parent Act of 1950 has to be read as containing on the very date of its enactment provisions in these sections not as originally enacted but as they stood after the amendment of 1959. In deciding whether rights of raiyats were being acquired or not we have to forget what happened in consequence of the un-amended s. 6. Projecting ourselves to the date Sep-tember 25, 1950, when the President's assent to the Bihar Land Reforms Act, 1950, was published in the

2 S.C.R. SUPREME COURT REPORTS

Gazette and reading the Act as containing s. 4 and z96z s. 6 as amended and also s. 7(b) it cannot but be held State of Bihar that what were being acquired by means of these v. provisions of the amending legislation giving retros- Rameshwar Prntap pective effect were certain rights of the intermedia-Narnin Singh ries. These intermediaries had not on September 25, 1950, ceased to be intermediaries and the fact that Das Gupta J. under the unamended provisions of section 6 they later on became occupancy raiyats should not be allowed to confuse the fact that the acquisition of certain properties by the amending legislation being itself with effect from September 25, 1950, what was being provided for was acquisition of intermediaries' rights.

Even if it be assumed that what the amending legislation provided for was the acquisition of raiyats' rights, there is no justification for holding that these rights were not "rights in any estate" within the definition of cl. 2 of Art. 31A. Clause 2(b) is in these words:-

"the expression 'rights' in relation to an estate, shall include any rights vesting in proprietor, sub-proprietor, under-proprietor, tenure-holder, rai-yat, undcr-raiyat or other intermediary and any rights or privileges in respect of land revenue."

The contention on behalf of the ex-intermediaries is that the rights of raiyats who are not intermedia-ries, in the sense of being middlemen between the State and the tiller of the soil, are not within this definition. This contention does not however stand moment's scrutiny, for the simple reason, that it is well known that ordinarily at least, raiyat or an under-raiyat is not person, who can be called an intermediary. It is reasonable to think that the word "raiyat" was used in its ordinary well-accepted sense, of the person "who holds the land under the proprietor or tenure-holder "for the purpose of cul-tivation" and the word "under-raivat" used in the equally well-accepted and ordinary· sense of "a per-son who holds land under raiyat for the purpose of cultivation." It is necessary to remembP,r in this

connection that Art. 31A as first enacted by the Con-

stitution (First Amendment) Act did not contain these words "raiyat, under-raiyat"; under-raiyat"; and that after the First

Stale of Bihar v. words "raiyat, under-raiyat"; under-raiyat"; Rameshwar Pratap Amendment the definition ran thus:-Narain Singh "the

Narain Singh "the expression 'rights', in relation to an estate shall include any rights vesting in proprietor, Das Gupta f, sub-proprietor, under-proprietor, tenure-holder or other intermediary and any rights or privileges in respect of land revenue."

It was the Fourth Amendment which in the year 1956 inserted the words "raiyat, under-raiyat "imme-diately a£t,er the words "tenure-holder". At that time laws had already been passed in most of the States for the acquisition of the rights of intermedia-ries in the estates; rights of raiyats or under-raiyats who might answer the description "intermediary" were also within the definition because of the use of the word "or other intermediary". The only reason for specifically including the rights of "raiyats" and "under-raiyats" in the· definition could therefore be to extend the protection of Art. 31A to laws providing for acquisition by the State Governments of rights of these "raiyats" or "under-raiyats". In the circumstan-ces and in the particular -setting in which the words "raiyat" or "under-raiyat" were introduced into the definition, it must be held that the words "or other intermediary" occurring at the end, do not qualify or colour the meaning to be attached to the tenures newly added.

Another contention raised in support of the argu-

ment that the impugned law is not for acquisition of right in an estate is that the right to hold Mela is not right in the lands at all. This contention is wholly unsound. Holding hat, or bazar or mela is only mode of user by the owner of his land. Just as he can enjoy the land belonging to him in other ways, he can use it for the purpose of having con-course of people-buyers and sellers and others for hat, or bazar or mela-subject, as in the case of other user to the requirement that no nuisance is created and the legal right of others are not infriEged. Con-sequently, the right to hold Mela has always been

2 S.C.R. SUPREME COURT REPORTS

considered in this country to be an interest in land, an interest which the owner of the land can transfer state of Bihar to another along with the land or withont the land. v. There can be no doubt therefore that the right of the llam,,hwar hatap proprietor of an estate to hold Mela on his own land Narain Singh is right in the "estate, being appurtenant to his Das Gupta ]. ownership of the land; so also the right of tenure-holder, who it has to be remembered is the owner of the land subject only to the payment of rent to the proprietor, to hold mela on land forming part of the tenure. It is true that licence to hold Mela on another's land in which no interest is transferred is not an interest in land; but there is no question here of the acquisition of any licence to hold Mela at ano-ther person's land. The argument that the impugned law was not Jaw for acquisition of right in the "estate" because the right to hold mela was not right in the land must therefore be rejected.

Lastly, it was contended that long before the date of the amending Act the "estates" had ceased to exist as consequence of the notifications issued under s. 3 of the Parent Act and consequently whatever was being acquired in 1959 could not be right in an "estate". Here also we have to take note of the fact that the impugned provisions of the Amending Act were made retrospective with effect from the date of the original enactment so that we have to project ourselves to September 25, 1950, the date of the origi-nal enactment, and consider whether on that date the law provided for acquisition of right in an "estate". Undoubtedly the "estates" did exist on that date and so the acquisition retrospectively provided for from that date was acquisition of right in an estate.

Even if we ignore the fact that the impugned pro-visions of the Amending Act were given retrospective effect there is no warrant for saying that what was being acquired was not right in an "estate". "Estate" was defined in the Bihar Tenancy Act to mean "any. land included under one entry in any of the generaL registers of revenue-paying lands and revenue-free lands, prepared and maintained under the la.w for the time being in force by the Colle~tor of

394 SUPB,EME COURT REPORTS

1961 District". It is not disputed before us that in spite State of /Jihoi-of the fact that in consequence of notifications under " section 3 of the Act the "estates" had become vested llamcshwar Pratap in the State, these registers continued to be maintain-Narain Singh ed at least up to the date of the Amending Act and even later. The position therefore is that the "estates" Das Gupta J. have become vested in the State but have still not ceased to be "estates".

We have therefore come to the conclusion that the impugned provisions of the Amending Act is law providiug for the acquisition by the State of rights in an "estate" within the meaning of Art. 31A of the Constitution and consequently even if we assume that they are inconRistent with or take away or abridge any of the rightH conforred by Arts. 14, 19 and 31 they are not void on that ground. The conclusion cannot therefore ho escaped that the ex-intermedia-ries have not and the State has the right to hold melas on the Bn.kasht lands of which they have be-come occupany raiyats under the provisioµs of s. 6.

We therefore allow t.he appeals by the State and set aside the order of the High Court for the issue of writs and order that the applications under Art. 226 made before the High Court be dismissed. \Vo also dismiss the two petitions under Art. 32 of the Consti-tution filed in this Court, and also Civil Appeal No. 574 of 1960.

In the eircnmstanees of the case, we rn:tke no order as to eosts.

Appeals by the State allowed.

C. A. No. 574 of 1960 and Petitions 'under Art. 32 disrnissed.