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PETITIONER:

ZAMINDAR OF ETTAYAPURAM

Vs.

RESPONDENT:

THE STATE OF MADRAS.(and connected appeals)

DATE OF JUDGMENT:

05/02/1954

BENCH:

MUKHERJEA, B.K.

BENCH:

MUKHERJEA, B.K.

MAHAJAN, MEHAR CHAND (CJ)

DAS, SUDHI RANJAN

BOSE, VIVIAN

ALAGIRISWAMI, A.

CITATION:

1954 AIR 257 1954 SCR 761

CITATOR INFO :

F 1954 SC 605 (2)

ACT:

Madras Estates (Abolition and Conversion into Ryotwari)

Act, (Act XXVI of1948)--Validity thereof--Article 31(6)

of the Constitution.

HEADNOTE:

The Madras Estates (Abolition and Conversion into

Ryotwari) Act, (Act XXVI of 1948) was passed by the

Provincial Legislature of Madras functioning under the

Government of India Act, 1935 and it received the assent

of the Governor*General of India on the 2nd of April, 1949.

After the advent of the Constitution, the Act was reserved

for the certification of the President and it was certified

on the 12th of April, 1950:

Held, that in view of the provisions of art. 31(6) of

the Constitution the validity of the Act could not be

challenged on the ground that it contravened the

provisions of s. 299(2) of the Government of India Act,

1935.

Shankari Prasad Singh Deo v. Union of India ([1952] S.C.R.

89), The State of Bihar v. Maharajadhiraja Sir Kameshwar

Singh ([1952] S.C.R. 889) and Narayan Deo v. The State of

Orissa ([1954] S.C.R. 1) referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: CIVIL APPEALS Nos.

170 to 176 and 178 to 183 of 1953.

Appeals from the Judgment and Order dated the 22nd

August, 1952, of the High Court of Judicature at Madras in

Civil Miscellaneous Petitions Nos. 13386, 13388,13390,

7812, 12003, 13188, 13262, 7822, 13123, 13347, 13341,

12997, 12494 of 1950 and Order dated 8th September,

1952, in C.M.P. No. 13936 of 1950.

K. S. Krishnaswamy lyengar (K. g.Champakesa lyengar,

with him) for the appellants.

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V. K.T. Chari, Advocate-General of Madras (R.

Ganapathy lyer and V.V. Raghavan, with him) for the

respondent (State of Madras) in Civil Appeals Nos. 170 to

176 and 178 to 181.

M. Seshachalapathi for the respondent (State of

Andhra) in Civil Appeals Nos. 182 and 183.

1954. February 5. The Judgment of the Court was

delivered by MUKHERJEA J.

I2--95 S.C. I./59

762

MUKHERJEA J.--These consolidated appeals, numbering

fourteen in all, are directed against a common judgment of

a Division Bench of the Madras High Court dated the 23rd of

August, 1952, by which the learned Judges dismissed the

petitions of the different appellants made under article 226

of the Constitution. The appellants are landholders of

Madras, holding zamindaries within that State, and in their

applications under article 226 of the Constitution they

prayed for writs in the nature of mandamus, directing the

State of Madras to forbear from notifying and taking over

possession of the estates held by them and also to

cancel the notifications already issued, in exercise of

its powers under the Madras Estates (Abolition and

Conversion into Ryotwari) Act, (Act XXVI of 1948). This

Act, the constitutional validity of which has been

assailed by the appellants, was passed by the Provincial

Legislature of Madras functioning under the Government of

India Act, 1935, and it received the assent the

Governor-General of India on the 2nd of April, 1949. The

avowed object of the Act is to abolish the zamindary

system by repealing the Madras Permanent Settlement

Regulation of 1802, to acquire the rights landholders

in the permanently settled and other ,estates and to

introduce the Ryotwari system in all such estates. After

the advent of the Constitution, the Act was reserved for

certification of the President and it was certified on the

12th of April, 1950. In the petitions presented by the

appellants, a large number of grounds were put forward by

way of attacking the validity of the legislation which was

characterised as confiscatory in its character and

subversive of the fundamental right of property, which

the petitioners had in the zamindaries held by them

under the Permanent Settlement Regulation. Pending

the disposal of these petitions, the Constitution

(First Amendment) Act of 1951 was passed on 1st of

June, 1951, and this amendment introduced two new articles

namely, article 31-A and 31-B in the Constitution,

apparently with a view to protect the 'various laws

enacted for acquisition of estates from being challenged

under the relevant articles of Part III of the

763

Constitution. Article 31-B specifically refers to a number

of statutes mentioned in the ninth Schedule to the

Constitution and it declares expressly that none of them

shall be deemed to be void on the ground that they

contravened any of the fundamental rights,

notwithstanding the decision of a court or tribunal to the

contrary. It is not disputed that Madras Act XXVI of

1948 is one of the statutes included in this schedule. It

may be remembered that an attempt was made to impeach the

validity of the Constitution (First Amendment) Act

itself before this court in the case of Shankari

Prasad Singh Deo v. Union of India (1). The attempt failed

and after the pronouncement of this court in Shankari

Prasad's case, the grounds upon which the writ petitions

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of the appellants were sought to be supported became for

the most part unavailing. It appears that at the time of

the final hearing of the applications the arguments

actually advanced on behalf of the petitioners were

aimed not at invalidating the enactment as a whole,

but only some of its provisions, firstly on the ground

that there was no public purpose behind the acquisition of

some of the items of property mentioned therein and

secondly, that the provisions for compensation in

certain aspects were colourable exercise of legislative

powers and constituted a fraud upon the Constitution Act of

1935. These arguments were sought to be supported entirely

on the authority of the majority decision of this court in

the case of The State of Bihar v. Maharajadhiraja Sir

Kameshwar Singh (2) to the extent that it pronounced two

of the provisions of the Bihar Land Reforms Act. 1950--a

legislation similar in type to the Madras Act

1948--to be unconstitutional. These contentions did

not find favour with the learned Judges of the High Court

who heard the petitions and holding that the principles

enunciated by the majority of this court in the Bihar case

referred to above were not applicable to the impugned

provisions of the Madras Act, they dismissed all the

petitions. Certificates, however, were granted by the High

Court to the petitioners

(1) [1952] S.C.R. 89.

(2) [1952] S.C.R. 889.

764

under article 132(1) of the Constitution and it is on the

strength of these certificates that the appeals have' come

before us.

Mr. Ayyangar, appearing in support of these appeals,

has taken his stand solely upon the doctrine of'

'colourable legislation' as enunciated by the majority

of this court in the Bihar case referred to above. He has

very properly not attempted to make any point as to the

absence of a public purpose in regard to any of the items

of acquisition, since it is clear that according to the

majority view of this court, as explained in Narayan Deo

v. State of Orissa (1), the existence of a public purpose is

not a justiciable issue in case of an enactment which

having fulfilled the requirements of clause (4) of article

31 of the Constitution enjoys the protection afforded by

it.

The contentions of Mr. Ayyangar, in substance, are that

the provisions of 'section 27(i) as well as of section 30

of the impugned Act are colourable legislative provisions

which have been enacted in fraud of the Constitution Act

of 1935. It appears that in determining the amount of

compensation, that is to be paid under the Act, in respect

of an acquired estate, it is necessary, first of all, to

ascertain what has been described as the 'basic annual sum'

in regard to that estate. The' basic annual sum

comprises several items or parts which have been set out

in section 27 and the subsequent sections of the Act, and it

is upon the amount of the basis annual sum determined

in accordance with the provisions of these sections that

the total amount of compensation money payable to a

proprietor is made to depend. Mr. Ayyangar contends that

section 27(i) of the Act, which lays down that in computing

the basic annual sum only one-third of the gross annual

Ryotwari demand of specified kinds is to be taken into

account, is a colourable provision which, ignores altogether

the actual income derived from the property and introduces

an artificial and an arbitrary standard for determining the

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income or profits which has absolutely no relation to facts.

Similarly, in computing the net miscellaneous revenue,

which is an

(x) [1945] S.C.R. .A.I.R. x953 8. G. 375 at P. 380.

765

element in the computation of the basic annual sum, what is

to be taken into account under section 30 is not the average

of net annual income which the proprietors themselves

derived from the sources, mentioned in the Act, when they

were in possession of the estates, but which the Government

might derive from them in future years after the date

of notification. 'Thus if on account of mismanagement or

for other reasons the Government does not derive any

income from these sources, the proprietor would not have

any compensation under this head at all. It is

argued that these are mere devices or contrivances aimed at

, confiscation of private property and they neither lay

down nor are based upon any principle of compensation.

Whatever the merits of these contentions might be,

it appears to us that there is an initial and an

insuperable difficulty in the way of the learned

counsel's invoking the authority of the majority decision

of this court in the case of The State of Bihar v.

Maharajadhiraja Sir Kameshwar Singh(1) to the circumstances

of 'the present case. The Bihar Land Reforms Act,

'which was the subject matter of decision in that case,

was a legislation which was pending at the time when the

Constitution came into force. It was reserved for

consideration of the President and received his assent in

due course and consequently under clause (4)of article

31 of the Constitution it was immune from judicial

scrutiny on the ground that the compensation provided by it

was inadequate or unjust. With regard 'to two of the

provisions of the Act, however, which were embodied in

sections 4 (b) and 23(f) of 'the Act, it was held by the

majority of this court that they were void as they

really did not come within entry 42 of List III of

Schedule VII of the Constitution, under which they

purported to have been enacted. Entry 42 of List III

speaks of "principles on which compensation for property

acquired or requisitioned for the 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

(1) [1952] s.c.R. 889.

766

to be given." It was pointed out that entry 42 was

undoubtedly the description of a legislative head

and in deciding the competency of a legislation under

this entry, the court was not concerned with the

justice or propriety of the principles upon which the

determination of the compensation was to be made or the

form or manner in which it was to be given. But even then,

the legislation must rest upon some principle of giving

compensation and not of denying or withholding it, and a

legislation could not be supported which was based upon

something which was non-existent or was unrelated to facts

and consequently could not have a conceivable bearing on

any principle of compensation. The initial difficulty

in the way of invoking this doctrine in the present case

lies in the fact that the legislation, which is impugned

here, was passed by the Madras Provincial Legislature

functioning under the Government of India Act, 1935, and'

there was no entry in any of the lists attached to the

Act of 1935 corresponding to entry 42 in List I1I of the

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Indian Constitution. The only entry relevant to. this

point in the Act of 1935 was entry9 of List I1 which spoke

merely of 'compulsory acquisition of land'; and it is clear

that a duty to pay compensation or of' laying down any

principle regarding it was not inherent in the language of

that entry. The guarantee for payment of compensation, so

far as the Constitution Act of 1935 is concerned, was

contained in section 299 clause (2) which was worded as

follows:

"Neither the Federal Legislature nor a Provincial

Legislature shall have power to make any law' authorising

the compulsory acquisition for public purposes of any

land, or any commercial or industrial' undertaking ........

unless the law provides for the payment of compensation for

the property acquired and either fixes the amount of the

compensation, or specifies the principles on which, and the

manner in which it is to be determined."

The appellants could have very well relied upon this

guarantee if a bar had not been created in their way by

the provision of article 31(6) of the Constitution. That

clause of article 31 stands of follows:

767

"Any law of the State enacted not more than

eighteen months before the commencement of this

Constitution may within three months from such commencement

be submitted to the president for his certification;

and thereupon, if the President by public notification so

certifies, it shall not be called in question in any court

on the ground that it contravenes the provisions of clause

(2) of this article or has contravened the provisions of

sub-section (2) of section 299 of the Government of India

Act, 1935."

It is not disputed that the Madras Act XXVI of 1948 does

fulfil all the requirements mentioned above.

Consequently, it is not possible for us to allow the

appellants to raise the contentions which the learned

counsel on their behalf wants to raise. The result is that

the appeals would stand dismissed, but in the

circumstances of this case we shall make no order as

costs.

Appeals dismissed.

Agent for the appellants: S. Subramanian.

Agent for the respondents: R.H. Dhebar.