JAGANNATH ETC. ETC. versus AUTHORISED OFFICER, LAND REFORMS & ORS. ETC.

JAGANNATH ETC. ETC.

AUTHORISED OFFICER, LAND REFORMS & ORS. ETC. October 11, 1971

[S. M. S!KRl, C.J., J.M. SHELAT, A. N. RAY, I. D. DuA, S. C. ROY, D. G. PALEKAR AND G. K. MITTER, JJ.]

Constitution of India, 1950, Arts. 31-B, 39 and Ninth Schedule and Seventh Schedule, List I/, entry 18 and List /l/, entry 42 Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961-Struck down as vio· !ative of Art,, 14-Act included in Ninth Schedule-Effect on va/idity-Whe:ther State Legislature cgmpetent to enact the Act.

The Madras Land Reforms (Fixation of Ceiling on Land) Act 1961 was an Act to provide for fixation of ceiling on agricultural land holding; and for oortain other matters connected therewith in the State of Madras. Its validity. had been challenged by earlier writ petitions filed in this Court on the ground that its provisions violated Arts. 14, 19 and 31 (2) of the Constitution and this Court held that its pivotal provisions violated Art. 14 and therefOre struct down the entire Act as unconstitutional. Similar attacks had been made on several other acts of other States imposing ceil· ings on holding of land, and in order to shield these Acts against such attacks Parliament passed the Constitution (Seventeenth Amendment) Act, 1964. By that amendment several Acts were included in the Ninth Schedule to· the Constitution including the Madras Act. The Madras Act was again challenged on two grounds; namely (I) the Act having been struck down as invalid by this Court it was non est, and was void ab initio and Art. 31-B could not validate it without tho State Legislature re· enacting its provisions, and (2) the Act was incompetent for want of legislative power in the. State.

HELD : Art. 31 -B and the Ninth Schedule as they stooc! after the 7th amendment must be taken to have cured the defect, if any, in the various Acts_ mentioned iri the said Schedule as regards any unconstitu-tionality alleged on the ground 'of infringement of fundamental rights; and, by the express words of Art., 31-B such curing of the defect took place· with retrospe~ve operation from the dates on which the Acts were put on the statute book. These Acts, even if void or inoperative ai the time .when they were enacted by the reason of infringement of Art. 13(2) of the Consti\ution, assumed full fOrce and vigour from the· respective dates of their enactment after their inclusion in the Ninth Schedule read with Art. 31-B of the Constitution. Besides, the States could not, at any time, cure any defect arising from the violation of the prO\isions of Part Ill of the Constitution. Therefore, the objection that the Madras Act should' have been re-enactecl by the Madras Legislature after the Seventeepth .Amendment came into force cannot be accepted. [1070 B-E]

State of Maharashtra v. Pati/chand, [!968] 3 S.C.R. 712, Bhikaji Narain Dhakras & Ors. v. Staie of Madhya Pradesh & Anr., [1955] 2 S.C.R. 589, M. P. V. Sundararamier & Co. v: Stale of Andhra Pradesh, [1958] S.C.R. 1422 .and St11te of UNar Praaesh v. H. H. Maharaja Brijendra Singh, [1961] 1 S.C.R. 363, followed .

Sr.jjan Singh v. State oj Rajasthan, [1965] 1 S.C.R. 933, Behrq. Khrushed Pesikaka v. State of Bom/xzy, [1955] I S.C.R. 613, Saghir

Ahmed v. State of U.P. [1955] 1 S.C.R. 707 and Deep Chand v. State of ·A Urtar Pradesh & Ors. [1959] Supp. 2 S.C.R. 8, referred to.

(2) Entry 18 in List II of the Constitution like any other entry in the three lists only gives the outline of the subject matter of legislatioi: field of legislation governed by the entry is not to be narrowed down in and the words in the entry are to be read in their widest amplitude. The any way unless there is anything in the entry itself which detines the limits thereof. Entry 18 is meant to confer the widest powers on the State Legislature with regard to rights in or over land and such rights are not to be measured by or limited to the rights as between landlords and tenants or the collection cf rents. The words which follow the ex-pression 'r~ghts in or over land', in the entry are merely bv way of illus-tration. The specification itself shows that the genus of the rights men-tioned is not the one which landlords have vis-a-vis their tenants or vice versa. All kinds of legislation regarding transfers and alienations of agricultural land which may affect the rights therein of landlords and tenants are envisaged by, the entry as also improvement of land and colonisation of such land. If the State Government seeks to enforce measure by which the condition of barren or unproductive lands can be improved it can do so even if the measure curtails the rights of the Jaud-Jords and tenants. lf the State wants to enforce measure of acquirjng lands of people who hold areas over celrtain ceiling limit so as to be able to distribute the same among the landless and other persons, to give effect to the directive principles in Art. 39(b) and (c) of the Constitu-tion, it is not possible to say that the same would be outside tho sco;:>e of Entry 18 in List II read with Entry 42 in List III. Such measure can aptly be described as measure· of agrarian reform or land improve-ment in that persons who hav~ only small holdings and work on the lands themselves would be more likely to put in greater efforts to make the land productive than those who hold large blocks of land and are only interesti~d in getting return without much effo'rt. The measure does not transgress the limits of the legislative field because it serves to remove the disparity in the ownership of land. Persons who lose the ownership of land in excess of the ceiling imposed are compensated for the lauds acquired by the State and distributed among others. Acquisition of iand would not directly be covered by Entry 18 but read with Entcy 42 in List III the State has competence to acquire surplus land so as to give effect to the policy in Art. 39 of the Constitution. [1072 G-H; 1073 A-F]

Sri Ram Ram Narain Medhi v. Srote of Bombay, [1'>59]: Supp. 1 S.C.R. 489, Atma Ram v. State of Punjab & Ors. [1955] I S.C.R. 743, Sonapur TeG Co. Ltd. v. Mst. Mazirunnessa, [1962] 1 S.C.R. 24 aad State of Maharashtra v. Patilchand, [19681 3 S.C.R. 712, followed.

CIVIL APPELLATE JURISDICTION: Civil Appeals No£. 247 to 257, 1061, 552, 623, 700, 701, 714, 1260, 1261 and 1696 of 1967.

Appeals from the judgment and orders dated the July 18, 19, 29, 1966, of the Madras High Court in Writ Petitions Nos. 1971 of 1965 etc.

V. Vedantachari, K. C. Rajappa and K. Jayaram, for the appelants (in C.As. Nos. 247 to 257 and 714 of 1967).

K. Jayaram for R. Gopalkrishnan, for the appellants (in C.As. Nos. 562, 700, 701, 1260, 1261 and 1969 of 1967). ·

V. Vedamachari and K. Rajendra Chowdhary, for the appel-lants (in C.A. No. 623 of 1967).

K. Jayaram for R. Thaigarajan, for the appellants (in C.A. No. 1061 of 1967).

S. Govind Swaminathan, Advocate-General, Tar.iii Nadu, S. Mohan and .• A. V. Rangam, for the respondents (in all the appeals except C.A. No. 562/67).

L. M. Singhvi, S. Mohan and A. V. Rangam, for the respon-dents (in C.A. No. 562 of 19(j7).

Niren De, Attorne,v•General, V. A. Seyid Muhammad and

S. P. Nayar, for the Attorney-General.

G. S. Chatterjee, for the Advocate-Gt;neral, West Bengal.

0, P. Rana, for the Advocate-General, Uttar Pradesh.

M. C. Setalvad, M. C. Bhandare and B. D. Sharma, for the Advocate-General, Maharashtra.

K. M. K. Nair, for the Advocate-General, Kerala .

K. Baldev Mehta, for the Advocate-General, Rajasthan.

K. Jayaram for R. Gopalkrishnan, for intervener No. 1.

J. fl. Dadachanji, 0. C. Mathur, Ravindfr Narain and Bhuvanesh Kumari, for intervener No. 2.

The Judgment of the Court was delivered by

Mitter, J. In all the above matters there is common attack on the validity of the Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961. The Act received the assent of the Presi~nt on the 13th April, 1962 and was published in the official gazelle on the 2nd May, 1962. It is styled "An Act to provide for fixation of ceiling Q.!l agricuHural land holdings and for certain other matters connected therewith in the State of Madras". The pre-amble to the Act shows that it was passed in furtherance of the directive principb; of State policy as embodied in Art. 39 of the Constitution and in particular, clauses (b) and ( c) thereof, namely, that ihe ownership and control of 1the material resources of the community were to be so distributed as best to subserve the common gO()d and that the operation of the economic system did not result in the concentration of wealth and means of production to the common detriment. The Act sought to achieve this by ac-ff quiring agricultural land from persons owning large holdings of it and distributing the same to the landless and other. persons so as to reduce the disparity in the ownership thereof. This was

attempted to be brought about by fixing ceiling on the holdings of agricultural land holdings so as to render the surplus available for distribution.

The scheme of the Act in nut-shell is as follows. By Chapter Il of 1the Act containing sections 5 to 18 provision is made for th·~ fixation gf ceiling of land holdings, furnishing of return by persons holding land in excess of the limits specified, preparation and publication of draft statements as regards land in excess of the ceiling area, exclusion of certain land from calculation of ceiling area and acquisHion of surplus land after the publication of the final statement as envisaged in the Chapter. In particular, s. 5 fixes the ceiling on holdings of land of every person and every family. S. 7 provides that subject to the provisions of Chapter VIII no person shall be entitled 'to hold land in excess of the ceiling_ area. Sections 3 to 16 provide for submission of return, obtaining of particulars and determination of the surplus land of person S. 18 provides for publication of notification by the Government to the effect that the surplus land is required for public purpose.Chapter HI of the Act provides for c·~iling on future acquisi-tions, enquiries into the bona {ides and validity of transfers bet-ween the date of the commencement of the Act and the notification thereafter, and the effect of certain future transfers. Chapter VI provides for determination of comp·~nsatign for land acquired by Government under the provisions of the Act. Section 5()-Jthe opening section in Chapt·~r VI-provides for payment of cOmpensation accordin~ •to the rates specified in Schedule III to every person· whose right, title and interest is acquired by Gov-ernment under Chapter II. S. 55 provides for payment of com-pensa!tion either in cash or in bonds or partly in cash and partly in bonds. Chapter IX provides for exemptions in certain case> from the provisions of the Act. Chapter XIII provides for dis-posal of th~ land acquired by the Gov.~rnment under the Act.

Section 3 is the definition section. Under cl. (7) thereof 'ceiling' area means [1]the extent of land which person is entitled to hold under. section 5. By cl. ( 11) lthe date of commencement of the Act' was fixed as the 6th April, 1960 i.e. the date on w~ich the Madras Land Reforms (Fixation of Ceiling on Land\ Bill, 1960 was published iit the official gazette. "family" for the purpose of the Act is given an artificial definition in cl. (14). It means in relation to any person, the wife or husband as the case may be, of such person and his or her--

(i) minor sons and unmarried daughters, and

(ii) minor grandsons and unmarried grand-daughters in the male line, whose father and mother are. dea<J.

U:'lder the Explanation to the clause 'minor sons' and 'minor grandsons' are not be include sqns or grandsons-

(i) between whom and the other members of the family,

partition by means of registered instrument has taken place; or

(ii) in respect of whose family properties preliminary decree for parti<tion has been passed; before the commencement of the Act. Under cl. (19) 'to hold land' means with its grammatical variations and cognate expressions, to own land as owner or to possess or enjoy land as possessory mortgagee or tenant or as intermediary or in one or more of those capacities. Under cl. (34) 'person' inchides any trust, company, family, firm, society or association of individuals, whether incorporated or not. Under cl. ( 45) "surplus land" means the land held by p·~rson in excess of the ceiling area and declared to be surplus land under ss .. 12, 13 or 14.

The Act was challenged by writ petitions filed in this Court in 1963 (A. P. Krishnaswamy Naidu v. State of Madras(1) on the ground that its provisions violated Arts. 14, 19 and 31(2) of the Constitution. The first attack was at s. 5 of the Act laying down the ceiling area and the second a't s. 50 of the j\ct read with Sch.edule III thereof which provided for compensation. It was urged that tb; Act was not protected under Art. 31-A of the Constitution relying on the judgment of this Court in Karimbil K11nhikoman v. State of Kerala(2). This Court held that the definition of 'family' in s. 3 (14) was artificial and resulted in discrimination between persons equal!y circumstanced thus vio-lating Art. 14. The Court also held that the provisions contained in s. 50 of the Act read with Schedule III with resp·~ct to com-pensation were also discriminatory and these two secti.:ms viz., ss. 5 and 50, being the pivotal provisions of the Act the whole Act had to be struck down as unconstitutional. The judgem~nt was rendered on 9th March, 1964.

It appears that similar attacks had been made not only to the· above Madras Act but to several Acts of oth·~r States imposing ceilings on the holding of and attempting to effect similar agrarian reforms. To shield these Acts against such attacks Parlia-ment passed the Constitution (Seventeenth Amendment) Act on the 20th June 1964. The statement of objects and reasons for the Act shows that inasmuch as :

"Several State Acts relating to land reform were struck down on the ground that the provisions of those

(I) [1964] 7 S.C.R. 82. (2) [1962] Suppl. (I) s.c.R. 829.

Aots were violative of articles 14, 19 and 31 of the Con-stitution ·and that tho~ protection of article 31-A v.as not available to them",

it was 'proposed to amend the definition of "estate" in article 3 lA of the Cons1itution by including therein lands held under r:yotwari settlement as also other lands in respect of which pro-visions are normally made in land reform enactments' and it was also "propose(!. to am~nd the Ninth Schedule by including therein certain State enactmen1s relating to land reform in order to re-move any uncertainty or doubt that may arise in regard to their validity". Accordingly Parliament passed the Seventeenth Amend-ment Act efleoting change not only in Art. 31-A of the Consti-tution by adding proviso after the existing proviso in clause ( 1) but also substituting new sub-clause (a) clause (2) and in-cluding in the.Ninth Schedule no lass than forty four Acts of difforent Stlrtes of which item 46 was the Act struck down by this Court.

The Seventeenth Amendment Act was itself challenged in the case of Sajjan Singh v. State of Rajasthan('). number of writ petitions were fik~d in this Court under Art. 32 of the Constitution in the year 1966, Go/aknath v. Punjab('), challen-ging not only the validity of the Constitution Seventeenth Amend-me::i•t Act of 1964 but also Constitution Fourth Amendment Act, 1955 and Constitution First Amendment Act, 1951 in su far as they affected the petitioners' fundamental rights. Th~ first petition in that group of cases was filed by group of persons against an order made by the Financial Commissioner, Punjab hoiding that an area of 418 standard acres was surplus in the hands of •the petitioners under the provisions of the Punjab Security of Land Tenures Act X of 1953 read withs. 10-B thereof. Five learned Judges of this Court held all 1he amendments to be valid, while four oth~rs concurred in the judgment delivered by Su boa Rao, C.J. hoiding •that although the abov.e ,Amendment Acts abridged the scope of the fundamental rights thus violating article 13 of the Constitution they could not be struck down because of the earlier decisions of thi.s Court to the contrary. One learned Judge took the view that the fundamental rights were outside the amendatory process if th>~ amendments sought •to abridge or take away any of •those rights : but the First, Fourth and Seventh Amendments being part of the Constitution, by acquiescence for lor.g •time could not be chall.enged and they contained authority for the Seventeenth Amendment. The judgements in Golaknath's ·5.ase (supra) were rendered on 27th February, 1967.· ·

(!) [1965] I S.C.R. 933. (2) (1967] 2 S.C.R. 762.

In the meanwhile large number of writ petitions were filed in tho Madras High Court in the r...ars 1964 and 1965 challenging the validit} of the Madras Act of 1961 and 1he main r.ttack on the Act was two-fold. It was urged that the Act having been struck d0wn as invalid by this Court in Krishnaswami Naidu's case(') it was non est and was void ab initio and Art. 31-B could not validate it without separate Validating ,\ct being passed by the Madras Legislature, and, secondly, the Act was incompetent for want of legislative power of the State. The second attack was levelled on wide front before the Madras High Court, but before us learned counsel did not go as far in his challenge to the legislative competen~e of the State to pass the_ Act

On the first point, learned counsel's contention may be sum-. marised as follows. He urged that this Court having declared the Ceiling Act of 1961 void under the provisions of Art. 13 sub-cl. ( 2) of the Constitution we must proceed on ·the oasis that the legislation was void ab initio inasmuch as it did not Ii~ within th•; power of the State •to make any law which abridged the rights conferred by . Part III of the Constitution. In other words, it was said that the measure was non est or sti!i-born and any vali-dating measure could not instil life therein. It was argued that the elfect of the Act being struck down by this Court was as if it had been effeced from the statute book and to make any such Act operative. it was necessary not only to give it the protection against violation of fundamental rights as was sought to be done by Art. 31-B but to get the State of Madras 'to re-enact the pro-visions thereof. Learned counsel drew our attention to several decisions of this Court in ~upport of his argument and we shall take note of them in the order in which they were placed before us .

The first case referred to was Behram Khrushed Pesikaka v. The State of Bombay('). In this case the main question turned on the interpretaiion of the Bombay Prohibition Act XXV of · 1949 and the effect of striking down some of the provisions there-in biy this Court in The State of Bomhay & Anr. v. F. N. Balsara([3 ]) In Bal~ara's case this Court had hel\i that the provisions of the Act including clause (b) of section 13 in so far as they affected . the consumption or use of liquid medicinal and •toilet preparations containing alcohol, were invalid and save the provisions expresssly mentioned the rest of the Act was valid. It was also held that the decision declaring some of the provisions of the Act invnlin did not affect the va!iaity of the rest of the Act. The effect of · (1}...(19641 7 S.C.R. 82. (2) [1965] 1 S.C.R. 613,

(3) [19511 1 S.C.R. 682,

partilll declaratii:Jn of the invalidity of s. 13 (b) had to be con-sidered by Constitution Bench of this Court in Pesikaka's case (supra). According to Mahajan C. J. who delivered the opinion of the majority Judges (see p. 654) :

"The constitudonal invalidity of part of section . 13 ( b) of the Bombay Prohibition Act having been de-clared by this Court, that part of the section ceased to have any legal effect in judging cases of citizens and had to be re11:arded as null and void in determining whether citizen was guilty of an offence."

His Lords]lip also observed that in India there was no scope for the application of ithe American doctrine enunciated by Willoughby that the declaration by-a court of unconstitutionality .of siatute which was in conflict with the Constitution affected the partie, only and there was no j:•dgment against the statute. T!te American doctrine was held not to be applicable to India in view of Art. 141 of the Constitution under which the law de-clared by the Supreme Court is to be binding on all courts within the territory of India. According to his Lordship .: " ...... once law has been struck down as imcons-titutional law by Court, no notice can be taken of that law by any Court, and in every case an accused person meed not start proving that the law is unconstitutional." It is however.to be noted that Das, J. (as he then was) took different view and pointed out that the section i.e. section 13, in its entirety was still enforceable against all non-citizens. He found himself unable to accept the proposition put forward by Fjeld J. in Norton v. Shelby County(1) [1]that law decl~P2d to be unconstitutional was to be treated as inoperative as though it had never been passed. Jn particular he relied on the fact that the Bombay Act was pre-Constitution .Act and '.\'as cer-tainly valid before the 26th November, 1950. ·

In Saghir Ahmed v. The State of U.P. & Ors.([2 ]) the second case refened to, this Court had to consider the effect of the amendment of Art. 19 ( 6) of the Constitution by the Constitution First Amendment Act of 1951 which enabled the State to carry on any trade or business either by itself or through corporations owned and controlled by the State 'to the exclusion of private citizens \\holly or in part. It is to be noted that this provision of Art. 19(6) which was introduced by the amendment of the Co1is1.'ution in 1951 was not in existence when the V.P. Road Transport Act (Act II of 1951) was passed and it wa~ held that the amendment of the Constitution which came later could not (I) 30 L Ed. 178. (2) [1955] 1 S.C.R. 707.

be invoked to validate an earlier legislation which must be re-garckd as unconstitutional when it was passed. In delivering the .judgment of the Court, Mukherjea, J. remarked (se>J at p. 728) :

"The amendment of the Constitution which came later cannot be invoked to validate an earl_ier legislation whic\]-must be regarded as unconstitutional when it was rasscd .. "

Counsei relied particularly on the following passa~e from Cooky's. Constitutional Limitations (Vol. I, p. 384 note) quoted by Mukheri~a, J. :

"a statute void for unconstitutionality is dead and cannot be vitalised by subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted."·

Strong reliance was placed on certain observathms of this Court in Deep Chand v. The State of Uttar Pradesh a1;d others(1). In Deep Chand's case the constitutionality of. the U.P. Transport Service (Development) Act, I 965, the validity of the sch.eme of nationalisation fram~d and 'the notifications issued by the State Government thereunder wer.e challenged. Subba Rao, J. (as he then was) who spoke for the Judges constituting the majority discussed in detail the distribution of legislative powers under 'the Constitution and the effect of any statute offending Art. 13. He posed the question: if Arts. 245 and 13 (2) define the ambit of the power to legislate, what is th·~ effect of law made in excess of that power? According to him the American Law gave direct and definite answer to tliis question. He quoted from Cooley in his "Consti)\!tional Limitations' (Eighth Edition, Vol. J) at p. 3 82 where the leam~d author said : "When statute is adjudged to be unconstitutional, it is as if it had never been. . . . And what is true of an ·act void in toto is true also as to any part of an act which is found to be unconstitutional, and which, con-sequeu(ly, is to be regarded as having newr, at any time. been possessed of any legal force."

The le<isned Judge also quoted from Rottschacfor on Con-stitutional La\V at p. 34 :

"The legal status of legislative provision in so far as its application involv.~s violation of constitutional provisions, mus't however be determined in the light of the theory on which Courts ignore it as law in the

decision of cases in which its application produces un-constitutional results. That theory implies that the legislative provision newr had legal force as applied to cases within that clause."

The learned Judge analysed the decisions of this Court in number 9J cases and summarised the result thereof in the fol-lowir.g propositions (see at p. 40) :

"(i) Whether the Constitu'tion affirmatively confers

power on the legislature to make laws subject-wise or . negatively prohibits it from infringing any fundamental right, thev represent only two aspeC'ts of want of legisla-tive power; .

(ii) .t.he Constitution in express

terms makes the

power of legislature to make laws in regard to the entries in the List of the Seventh Schedule subject to the other provisions of th·~ Constitution and thereby cir-cumscribes or reduces the said power by the limitations laid down in Part III of the Constitution;

(iii) it follows from the premises that law made

in derogation or in excess of that power would be ab initio void wholly or to the extent of ·the contravention as t11e case may be; and

(iv) the doctrine of eclipse can b~ invoked only

in the case of law valid when made but shadow is cast on ii by supervening constitutional inconsistency or supervening existing statutory inconsistency; when the shadow is removed the impugned Act is freed from all blemish or infirmity."

Applying the aforsaid principles to the case before the Court the learned Judge held that the validity ·of 1the Act could not be tested on the basis of the Constitution (Fourth Amendment). Act, 1955 but only on the terms of the relevant articles q they existed prior to the ·amendment.

It must be noted that Das, C.J. wrth whom Sinha, J. con-curred did not think fit to embark upon the discussion of the question, namely, whether the provisions of Part III of the Constitution enshrining the fundamental rights were mer>~ checks or limitations on the legislative competency conferrred on Parlia-ment and whether the doctrine of eclipse was applicable only to pre-Constitution laws or those which fell under Art. 13 (2) of t'ie Constitution.

The Seventeenth Amendmeint P.ct, I 964 came up .for con-sideration in the case of Sajjan Singh v. State of Rajasthan (1) (I) [1965] I S.C.R. 933

Among the points there canvassed in support of the petitions under Art. 32 of the Constitution was one based on the plea that the Seventeenth Amendment was legislative measup~ in respect of land und since. Parliament had no right to make law in respect of land, the Act was invalid; and since the Act purported to set aside decisions of court of competent jurisdiction it was un-constitutional. Although the Court upheld the validity of the amendmenC doubt was expressed by Mudholkar, J. as to whether Parliament could validate State law dealing with land. Acc,miing io .the learned Judge only that legislature ha5 power to validate law which has power to enact the law.

On behalf of some of the respondents and tho~ intervener, the Att0rnev-G_§neral of India, it was argued that no re-enactment of 'tile Act was necessary. Our attention was drawn to the wide scope of Art. 31-B which sought 'to cure the defect, if any, in the Acts specified in the Ninth Schedule on the ground that any such Act or any provision thereof was inconsistent with or took away or abridged any of the rights conferred by any provisions of Part III oi _the Constitution. The words of Art. 31-B, it was argued. made it amply clear that ·'this was sought to be done not only prospectively but retrospectively by the use of the words "None of the Acts ........ shall b~ deemed _to be vcid or ever to have become void on the ground of the inconsistency men-tioned.'' The removal of the defect was to have effect :

"NJJtwithstanding any judgment, decree or order of any comi or tribunal to rthe contrary."

In othi;r \YOrds, this meant that if the defect in any such Act had been the subject matter of any decision of court cf law and any provi_sion of the Act had been held to be void as being inconsistent with Part III of the Constitution such judgment, dc-cre~ or onkr was not to be operative on the provisions of the Act. In effect, i't was contended that the inclusion oi an Act in the Ninth Schedule to the Constitution read with Art. 31.r, overrode Jnd rectifod all defects in the Act because of inconsis-tency of any provision therein with any of the fundamental right~ conferred by Part III of the Constitution, as from th date of the commencement of the Constitution, no matter whether the .defect had been pointed ont in any iudgment of court of law and the Act J;eld to be. void on thaI ground.

Counsel for the respondent and the interveners drew our atten-H tion .to the dicta of learned Judges of this Court in several deci-' sions which according 'to them fortified their contention. The first case referred to by the learned Atiorney-GeneraC was that of 16-ll9SupCl/72

Staie of Muharasl?tra v. Patilchand( [1]) where the judgment of Bench of Seven Judges of this Court was delivered by our present Chief Ju;;iice. The Act impugned th·~re was the Maharashtra State Agricultural Lands (C~iling on Holdings) Act. 1%1 ~s amended by A.ct 13 of· 1962. The preamble to that Act is prac-tically identical with that of the Madras Act which ts under con-sideration in this case. It was contended on behalf of the appel-lants ·there that Art. 31-B did not protect from challenge on the ground of violation of fundamo~ntal rights the provisions of the Acts amending Agricultural Lands (Ceiling on Holdings) Act, 1961 as ,1riginally enacted and. that 'the Seventeenth Amendment Act in spitr~ of the decision in Golaknath's case (supra) was in-invalid. Negativing these contentions it was said (see at p. 719)

" .... the High Court was right in holding that Art-31-B dc•~s protect the impugned Act from challenge on the ground of violation of fundmental right>. There is no doubt that Art-31-B should be interpreted ;trictly. But even interpreting it strictly, the only requirement which is laid down by Art. 31-B is that the Act should be specified in the Ninth Schedule."

Section 28 of the Act which was ·the main targe: of attack and which the High Court had originally found as violating Art. 14 of the Constitution was held to be protected under Art. 31-B from the ground of attack based on infringement of Art. 14.

In Bhikaji Narain Dhakras & others v. The State of Madhya Prndesh & Anr. (') the petitioners who carried on their busine.>s as stage carriages operators of Madhya Pradesh for number of years challenged the validity of the C.P. & Berar Motor Vehicles (Amendment) Act, 1947 which amended the Motor Vehicles Act, 1939 anci conferred extensive powers on the Provine;::] Gov-ernment including the pmwr to create monopoly oi the motor transport busm.~ss in its favour to the exclusion or all motor transport operators. In exercise of the powers conferred by the new s. 43 (I) (iv) notification was issued on 4th February; 1955 declaring the intention of the State Government to take up cer-tain routes. The petitioners contended that with the commence-me1~t of the Constitu'tion the Act became void under the previsions of Art. 13 (!) and reliance was placed on the decision of Shagir Ahmad v. The State of U.P. (supra). The contention put forward on behaH ci the respondents was that the Consti'tl!tior. (First Ameridm~nt Act, 1951 and the Constitution (Fourth Amendment) Act,i 1955 had the effect of removing 'the inconsistency r.nd the An1ending ' Act III of 1948 became operative again. It was argued . on b.~half of the petitioners that the impugned Act being void (I) [1968] 3 S.C.R. 712. (2) (1955) 2 S.C.R. 589.

und~r Art .. 13 ( 1) was dead and could not be revivifieJ by any stib3equent amendment of the Constitution but had to be re-·e.nacted. 'l'his contention was turned down in th·~ unanimous de· cision of this Court. It was said that the Act :

"did not become void independently of the ;!Xistence .:if the rights guaranteed by Part III. In other words, on nnd i.fter the commencement of the Constitution the cxistin2 law, as result of its becoming inconsistent V'ith the provisions of article 19(l)(g) read with clause (6) as it then stood, could not be permitted to stand in the way of the exercise of that fundamental right. Article 13 ( l) by reason of its language cannot be read as having ob!iterated the entire portion of the inconsistent law or hav:ng wiped it out altogether from the statute bock. Sqch law existed for all past transactions and for en-forcement of rights and liabilities accrued before the date of lhe Constitution, as was, held in Keshavan Madh~v" Menon's case(1) ."

11 was also observed that the

"American authorities can have no aoolication to our Constitution. All laws, existing or future, which are incom!stent with the provisions of Part III of our Con-stitution are by the express provision of · article 13, rende-ed void 'to the extent c.f such inconsistency'. Such laws were not dead for all purposes ...... lt is true 1_]J3t as ihe amended clause ( 6) (of art. 19) was not made retrospective the impugned Act could have no operation as .against citiz.~ns between the 26th January 1950 anel the 18th June 1951 and no rights aad obli-gations could be founded on the provisions of the im-pugned Act during 1the said p~riod whereas the amended clause (2) by reason of its being expressly made retrospective had effect even during that period. But after the amendment of clause ( c) the impugned Act im-mediately became fully operative e~>~n against citizens." . Tn M. P. V. Sundararmier & Co. v. The State of Andlira Pradesh(') Venkatarama Aiyar J. speaking for the majority of of the Court discussed at some length the different aspects of the unconstitutionality of statute. Speaking for the ·Court he said (at p. 1468).''Jn Federal Constitution where l.~gislative po\vers me disti:ibuted between differ>~nt bodies, the competence of the legisla1ture to enact particular law must depend

upon whether the topic of that legislation has been assigned by the Constitution Act to that legislature. · Thus, law of the State of an Entry in L~t I, Schedule VII of the Constitution would be wholly incompetent and void. But the law may be on topic within its competence, as for example, an Entry in List II, but it might infringe restrictions imposed l:fy the Constitution on the character of the law to be passed as for example, lirnitatfons enacted in Part III of the Constitution. Here al_so; the-law to the extent of rthe repugnancy will be void. Thus, legislation on topic not within the competence of the legislature and legislation within its competence but violative of constitutional limitations have l,_oth the same reckoning in court of law; they are both of them uneforceable. But does it follow from *his that both the laws are of the same quality and charac-ter, ar.d stand on the same footing for all purposes'? This question has been the subject of consideration in nume-rous de_cisions in the American_ Courts, and 1the pre-ponderance of authority is in favour of the view that while law on matter not within the competence ;if the legislature is nullity, law on itopic within its com-petence but repugnant to the constitutional prohibitions js only unenforceable. This distinction has material bearing on the present discussion. If a_ Jaw is on iield no'! within the domain of the legislature. it is absolut_~ly null and void, and subsequent cession of t)lat field to tl\e legislature will not have the effect of brealliing life into what was still-born piece of legis\a-tion al)_d !} -fresh legislation on the subject would be re--quisit_e~ But if the law is in respect of matter assigned to the legislature but its provisions disregarded constitu-tional prohibitions, though the law would be unenforce-able by re_ason of those prohibitions, when once they are removed, the Jaw will b~corne effective without re-enactment."

The learned Judge drew support for his conclusion from Willoughby on the Constitution of the United States, Vol. I p. 11 and Cooley on Constitutional Law at p. 201.

In The State of Uttar Pradesh & ors. v. H. H. Maharaja Bri-jendra Singh(1) the respondent challenged the constitutionality of the U.P. Land Aoquisition (Rehabilitation of Refugees) Act, 1948 by way of writ petition to the High Court and ;though the court dismissed the petition it held that two provisos to s. 11 of the Act were invalid as they offended s. 299 ( 2) of the Government

of India Act. Subsequently the Constitution (Fourth Amendment) Act, 1955 included the U.P. Act in the Ninth Schedule as· item 15. The Sia!te of U.P. contented that.the inclusion of this Act in the Ninth Schedule protected it under Art. 31-B of the Constitu-tion from any challenge under s. 299(2) of the Government of India Act. The Court turned down the argument on behalf of the respondent that the amendment of the Constitution which came after the decision of the Allahabad High Court could not validate the earlier legislation which, at the time when it was passed was un-constitutional. Re_lying on the decision of this Court in_ Saghir Ahmad v. The State of U .P. (supra) it was said that the provi-sions of the Act have been "specifically saved from any attack on their constitutionality as consequence of Art. 31-B read with the Ninth Schedule, the effect of which is 1that the Act cannot be deemed to be void or ever to hav·~ become void on the ground of its being hit b_y the operation of the Government of India Act."

It has to be noted tha·t although in Golaknath's case (supra) five learned Judges of this Court speaking through Subba Rao, C.J. were of the view that the Constitution Seventeenth Amend-ment Act infringed Art. 13 ( 2) of the Constitution, yet on the basis of the earlier decisions of this Court the same was held to be valid. It was said that :-

"As the Constitution (S.~venteenth Amendment) Act holds the field, the validity of the two impugned Acts, namely, the Punjab Security of Land Tenures Act X of 1953, and •th.~ Mysore Land 'Reforms Act X of 1962, as amended by Act XIV of 1965, cannot be questioned on the ground that they offended Arts. 13, 14 or 31 of the Constitution." The learned Chief Justice also made it clear ( ~.~e at p. 814) th~t the "decision will not affect the-validity of the Constitu-tio~ (Seventeenth Amendm~nt) Aot, 1964, or other amendments made to the Constitution taking away or abridging the fundamental rights."

Wanchoo, J. (as he then was) speaking for himself and two other Judges observed that constitutional invalidity could not be cured by State Legislatures in any way but could only be cured by Parliament by Consti'tutional amendment.

. In our view, although decisions of the American Supreme Court and the comments of well known commentators like • Willoughby and Cooley have great persuasive force, we need not interpret our Constitution by too much reliance on them. Nor is

Nor is

it necessary to scrutinise too closely the decisions wherein views appear to have been expressed that law which is void under Art. 13(2) is to be treated as still-born. Equally unfruitful would it be to consider the doctrine of eclipse.

Apart from the question as to whether fundamental rights ori-ginally enshrined in the Consfrtution were subject to the amenda-tory process of Art. 368 it must now be h.eld that Art. 31-B and . the Ninth S@edule have cured the ddect, if any, in the various Acts mentioned in 'the said Schedule as regards any unconstitu-· tionality alleged on the ground of infringement of fundamental rights, and by the express words of Art. 31-B such curing of the defect took place with retrosp~ctive oper:rtion from the dates on which the Acts w.ere put on the statute book. These Acts even if void or inoperative at the 'time when they were enacted by reason of i'1fringement of Art. 13 (2) of the Constitution, assumed full force artd vigour from the p~spective dates of their enact-ment after 'their inclusion in the Ninth Schedule read with Art. 31-B of the Constitution. The States could not, at any time, cure any defect arising from the violation of the provi&ions of Part III of the Constitution and therefore the objection that the Madras Ceil-ings Act should have been re-enacted by the Madras Legislature after the Seventeenth Constitutional Amendment came into force cannot be accepted.

On the other point as to the competency of the State legisla-ture, Mr. Vedantachari drew our attention in particular to the following provisions in the Act :-

"5. (1 )(a) "Subject to the provisions of Chapter VIII, tl{e ceiling area in the case of e\"~ry person and, subject to the provisions of sub-sections ( 4) and ( 5) of Chapter VIII, the ceiling area. in the case of every family consisting of not more than five members, shall be 30 standard acres.

(b) The c'1iling area in the case of every family consisting. of more than five members shall, subject to . the provisions of sub-sections ( 4) and (5) of Chapter VIII, ·be 30 standard acres together with an additional 5 standard acres for every member of the fari1ily in excess of five.

(2) For the purpos.es of this section, all the lands held individually by the members of family or jointly by some or all of the members of such family shall be deemed to be held by the family.

3(a) in calculating the extent of land held by member of family or by an individual person, 'the

share of the member of the family or of the individual person in the land held by an undivided Hindu family, Marumakkattayam tarward, an Aliyasanthana family or Nambudiri Illom shall be taken into account.

( b) In calculating the extent of land held \)y family or by an individual person, tbe share of the family or of 'the i_ndividual person in .the \and held by firm, society or association of individuals (whether incorpo-rated or not) or by company (other than non-agricul-tural company) shall be taken into account.

7. On and from the date of the commencement of this Act, no person shall except as otherwise provided in this Act, but subject to the provisions of Chapter VIII, be entitled_ to hold land in excess of the ceiling area :

Provided that in calculating the t<Ytal extent of land held by any person, any extent in excess of tlje o!iling area and not exceeding half an acre in the ca1e of wet land and one acre in the case of dry land shall, irrespec-· tive of the assessment of such land. be excluded."

He also drew our attention to section 8 ·which required every person who .beld land in excess of 30 standard acres to furnish to the authorised officer return containing the particulars specified in s. I 0 which directed the authorised officer to prepare draft statement in respect of each person owning or c•!emed to have held land il_l excess of the ceiling area. He argued that legislative measure of this type were· not covered by Entry 18 in List JI which runs as follows :

"Land, that is to say,-rights in or over land, land tenures, including the relation of landlord and "enant, and the collection of rent; transfer and alienation of agricultural land; land improvement and agricultural loans; g_olonization."

Counsel urged that the Stat·~ ceuld not frame law under which G. the holding of two persons could be lumped up for working out the area which the said persons could be permitted to hold. He contended that the property of two individ11als could not be treated. 'togeth·~r for the purpose of acquisition by the State by resort to the. fiction of "holding land" in s. 3 (19) of 'the Act and in any event Entry 18 of List II did not comprehend such power. He referred us to the American decision in Hoeper v. Tax Commission(1) where it was held that the husband could not, consistently with the due process and equal protection clauses of

(I) 284 U.S. 206-221.

the 14th Amendment, b~ taxed by State on (he combined total·

of his and his wife's 1ncome as shown by separ.llti: returns, whether lier income is her separate property and, by reason of the tax being graduated, its amount exceeded the sum of the taxes which would- have been due had their separate incomes been separately assessed.

Counsel also referred us to the decision in Balaji v. Income Tax Officer(1) and the contention there put forward that Entry 54 in the Federal Legislative List of the Gov·~rnrnerut of India Act, 1935 did not confer 6ll the legi~ature any power to tax (a) on the income of and therefore sub-s. ( 3) of s. 16 of the Income-tax Act, 1922 was ultra vires tho~ legislature.

It is necessary to note that this Court left the question open as it felt that the petition in his Court under article 32 of the Constitution could be satisfactorily disposed of on narrower basis although rthe Court approved of the view expressed in Sardar Baldev Singh v. Commissioner of Income-tax(') that Entry 54 should be read not only as authorising· the imposition of tax but also as authorising an enactment which prevented the tax imposed being evaded.

Counsel also referred to the case of Diamond Sugar Mills Ltd. & Anr. v. The State of Uttar Pradesh & Anr.([3 ]) where it was held that the premises of factory was not local area within the meaning of Entry 52 in List II of the Seventh Schedule and law relating to "taxes on the entry of goods into local area for con-sumption, use or sale therein" c;lid not authorise the State to im-pose cess on the entry of cane into the premises of factory for such use, consumption etc.

The American decision is hardly in point and so far as •the three Indian cases are concerned, they turned on the scope of Entries with which we are not concerned in this case. We w~re also referreq to the observations of this Court in Kavalappara Kottarathil Koch uni v. State of Madras(1) that individual pro-prietary rights were ordinarily to be respected unless clear case is made out for their restriction.

In our .view, Entry 18 in List II like any other Entry in the three Lis•ts only gives the outline of the subject matter of legisla-tion and therefore the words in the entry are to be construed in their widest amplitude. The field of legislation covered by the entry is not to be narrowed down in any way unles there is any-thing in the entry itself which defines the limits thereof. Entry 18 (I) 43 LT.R. 393. (2) 40 l.T. l.T. R.560, 615 (S.C) (3) [1961j 3 S.CR. 242. (4) [1960] 3 S.CR. S.CR. 887, 927. 928. 927. 928. 928.

(2) 40 l.T. l.T. R.560, 615 (S.C) (4) [1960] 3 S.CR. S.CR. 887, 927. 928. 927. 928. 928.

in our opinion is meant to confer the widest powers on the State Legislature with regard ito rights in or over land and such rights are not to be measured by or limited to the rights as between land.-lords and tenants or the collection of rents. The words which follow the~ i;xpression "rights in or over land" are merely by way of illustration. The specification itself shows that the genus of the rights mentioned is not the one which landlords have vis-a-vis their tenan~ or vice versa. All kinds of legislation regarding transfers and alienations of agricultural land which may aftect the rights therein of landlords and 'tenants are envisaged by the entry as also improv~1nent of land and colonisation of such land. If the State Government seeks to enforce measure by_ which the condi-tion of barren or unproductive lands can be i,mproved, it can do so even if the measure curtails the rights of landlords and tenants over them. If the State wants to enforce measure of acquiring lands of people who hold areas over certain ceiling limit so as to be able to distribute the same among 'the landless and other persons, to give effect to the directive principles if\ Art. 39 (b) and ( c) of the Constitution, it is JHYt possible to say that the same woii!d be outside the scope of Entry 18 in List II read with Entry 42 in List III. Such measure can aptly be descri.bed as measure of ag;rarian reform or land improvement in that persons who have only small holdings and work on the lands themselves would be 111ore likely to put in greater efforts to make the land productive than those who held large blocks of land and are only imerested in getting return without much effort. The measure does not transgress the limits of the legislatiw field because it serves to re!!lov.e the disparity in the ownership of land. Peisons who lose th~ ownership of lands in excess of the ceiling imposed are compensated for the lands acquired by the State and distri-buted amo'!Z others. Ac,1uisition of land would not directly l:;o~ covered by Entry 18 but read with Entry 42 in List III the State has <th~ com..uetence to acquire ,urplus land so as to give effect to the policy in Art. 39 of the Constitution.

This is not the first occasion when measure of such kind has been challen)!§d before this Court. In Sri Ram Ram Narain Medhi v. The State of Bombay(") challenge was made to the vires of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956 which was an Act forth.er to amend the Bombay Te-nancy and Agricultural Lands Act, 1948. The preamble to the Act showed that it was measure for ensuring full and efficien't use of lanq for agricultural purposes rendered necessary on account of th~ neglect of landholder or disputes between land~ holder and his tenants to the prejudice of the cultivation of the landlord's estate. The attack on the Act was made on the

(I) (1959) S1pp. S.C.R. 489.

ground that it was beyond the ambit of Art.-31-A of the Constitu-tion and was therefore vulnerable as infringing the .fundamental rights enshrined in Arts. 14, 19 and 31. It was contended on behalf of the State that it was piece of Jegisla;tipn for extinguish-ment or modification of rights in relatiop. to an e'1ate within the definition of Art.-31-A of 'the Constitution. Referring to the principles laid down by the Federal Court in United Provinces v. Atiqa Begum(') and by this Court in Navinchandra Mafat/al v. The Commissioner of Income-tax, Bombay City([2 ]) it was observed by this Court that in construing the words in constitutional enactment conferring legislative power, the most- liberal construc-tion should be put upon words so that the same may have effect in their widest amplitude. .It was held that having regard to the above principle. of construction the impugned Act was covered by Entry 18 in List II of the Seventh Schedule and was legisla-tion with reference to land within the competence ot the State Legislature.

In Atma Ram v. The State of Punjab & Ors. ([3 ]) the petitioners challenged the constitutional validity of the Punjab Secur~ty of Land Tenure Act X of 1953 as amended by Act XI of 1955, pro-viding for securi•ty of land tenure and other incidental matters. The impugr1~d Act limited. the area which might be held by land owner for the purpose of s~lf-cultivation and thereby rendering some area surplus to be utilised for resettling ejected tenants . . S. 18 of the Act conferred upon •the tenants the right to purchase · from the !and-owners the lands -held by-them and thus t!J.~mselves become th.e land-owners on prices which would be below· the market value. It was held by this Court that "rights in or over land" and "land ·tenures" occurring in Errtry 18 in List II were sufficiently comprehensive to include measures of land-tenure re-forms, such as the impugned Act sought to achieve.

The validitv of the Assam Fixation of Ceiling on Land Hold-ings Act I of 1957 came up for consideration in Sonapur Tea Co. Ltd. v. Must. Mazirunn;essa([4]). S. 4 of the Act prescritled ceiling on existing holdings and s. 5 empowered the appropriate authorities to ca)! for submission of returns by persons holding lands in excess of the ceili·ng. S. 8 empowen,d the State Government to acquire such excess lands by publishing in the official gazette notification to the effect. 'tha•t su.ch lands were required for public purpose, anc! such publication was to be conclusive evidence of the· notice of acquisition to· the person or persons holding such lands. It was conten_ded on b~half of the appellants there that the pith and substance of the Act and its.main object was to acquire the

(2) (1955] l S.C.R. 829 ..

(4) (1962) l S.C.R. 24.

property and dispose of it at profit. Rejecting this contention it was observed by this Court (see p. 731) that :

"The whole object of the Act which is writ large in aII its provisions is to abolish the intermediaries and leave the lands eith·~r with the tiller or the cultivator " It was also observed :

"The State is paying compensation to the persons dis-possessed under the principles prescribed by s. 12: amongst the persons entitled to such compensation le· nants are included, and when the St<ite proceeds to s.ettle lands on tenants it ·~xpeC'ts them to pay fair amount of price for the land and put ceiling on this price and it shall never exceed the, amount of compen,sation payable in respect of the said 'land. In our opinion this provi-sion is very fair and reasonable and it would be idle to attack it as piece of colourable legislation.Lastly, refemnce may be 11/ade to the case of State of Maha• rashtra v. Patilchand (supra) which has been already noted. There the Maharashtra Sta•te Agricultural Lands (Ceiling on Holdings) Act 1961 as amended by Act 13 of 1962 was upheld on !he ground that iv was enacted for securing the distribution, of agricultural Land to subserve the common good by imposing ceiling and also ensuring that the persons to whom surplus lands had been granted after the same hacr vested in the State Govern-ment should supply sugarcan·~ at fair prices. The impugned Act, apart from s. 28 already referred to, was held to be covered by Entry 18 in List II and s. 28 was held as within •the ambit of Entry 35 of List II dealing with "Works, lands and buildings vested in or in the possession of the State".

In the result, we hold that as the attacks on the rivers of the Maµras Ce.ilin.~s Act fail, the appeals must be dismissed but with-out any costs. In all cases where the Madras High Court did not think fit •to deal with the merits of the case as r>~gards the appli-cation of the Madras Ceilings Act to the particular facts of case, it will b.e open to the appellants to canvass the same before the appropriate forum.

Appeals dismissed«