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TMI Blog1980 (5) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... 14M(1), the provision for lands held by the members of a family being clubbed Under Section 14M(2), the avoidance of transfers by Section 14P, the fixation of a ceiling limit on orchards Under Section 14O(2), the vesting of surplus land in the State Under Section 14S(1), the penal consequences for failure to file a return provided for in Section 14T(4), the imposition of a restriction on transfers Under Section 14U and the absence of a provision for payment of compensation for acquisition of homestead Under Section 14V. 3. It would be convenient to refer, in the first place, to the legislative changes brought about in the State of West Bengal in furtherance of the Directive Principles enshrined In Article 39(b). Agrarian reform was undertaken in two stages. The first was the stage of abolition of the zamindari system. The West Bengal Estates Acquisition Act, 1953 (Act I of 1954) which received the assent of the President on February 12, 1954, and has been placed in the Ninth Schedule as item No. 59, was an Act to provide for the acquisition of estates, of rights of intermediaries therein and of certain rights of raiyats and under-raiyats. By virtue of notification Under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land used for the purpose of livestock breeding, poultry farming or dairy. Under Section 6(2), they became tenants of the State. The stage was thus set for the imposition of a ceiling on agricultural holdings. 5. The West Bengal Land Reforms Act, 1955 (Act X of 1956) came into force on March 31, 1956. The object and purpose of the Act, as reflected in the preamble, was to reform the law relating (to land tenure consequent on the vesting of all estates and of certain rights therein in the State. This was followed by a Notification? issued by the State Government under s: 49 of the West Bengal Estates Acquisition Act, 1953 on April 9, 1956. As a result of the notification Section 49, the petitioners who are raiyats, were deemed to be 'intermediaries' and the lands owned and possessed by them as estates, and all the lands and the petitioners' rights in such lands vested in the State with effect from April 10, 1956. But the petitioners as intermediaries were permitted to retain the lands as provided for in Section 6(1). 6. This state of affairs continued till February 12, 1971, when the West Bengal Land Reforms (Amendment) Act, 1971 (President's Act III of 1971) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ares, in the case of a raiyat having a family consisting of more than five members infringes Articles 14, 19(1)(f) and 31(2) of the constitution. The submission is that such lowering of the ceiling area, in the case of a raiyat, is tantamount to acquisition of land, within the ceiling limits applicable to him and, therefore, Section 14V of the Act which provides for payment of compensation according to the provisions contained in Chapter III of the West Bengal Estates Acquisition Act, 1953, and not for payment of compensation at a rate equivalent to the market value thereof, offends against the second proviso to Article 31A(1). 10. Various other questions are also raised viz., the artificial definition of family contained in Section 14K(c) bears no reasonable nexus with the traditional concept of a family in West Bengal. The acquisition of orchards as defined in Section 14K(e), for which a ceiling area is fixed at 2.0 standard hectares by Section 14O(2) is ultra vires the State Legislature as orchards cannot be treated as land as defined in Section 2(7). The taking away of homesteads, which the petitioners were entitled to retain Under Section 6(1) of the West Bengal Estates Acq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucation or of any other object of general public utility. The term 'family' is defined in Clause (c), and the expression 'irrigated area' in Clause (d). The term 'orchard' is defined in Clause (e) and the expression 'standard hectare' in Clause (f). Section 14L provides that, on and from the date of the commencement of the provisions of Chapter IIB of the Act, no raiyat shall be entitled to own, in the aggregate, any land in excess of the ceiling area applicable to him Under Section 14M. 13. The provisions of Section 14M lay down the ceiling area with respect to different classes of raiyats and it varies from 2.50 standard hectares depending on whether he is an adult unmarried person to 7.0 standard hectares, if he has a family consisting of more than five members. This again varies depending upon the nature of the land as the expression 'standard hectares' as defined in Section 14K(f) means, in relation to an agricultural land, an extent of land equivalent to 1.00 hectare in an irrigated area and 1.40 hectares in any other area. Section 14N provides for the determination of irrigated area and Section 14O provides for an appeal against suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 14T. Section 14U interdicts that, except where he is permitted, a raiyat owning land in excess of the ceiling area applicable to him Under Section 14M, shall not, after the publication in the Official Gazette, of the Act, i.e., after February 8, 1971, transfer by sale, gift or otherwise or make a partition of land owned by him or any part thereof, untill the excess land, which is to vest in the State Under Section 14S, has been determined and taken possession of by and on behalf of the State. 16. Section 14V lays down the mode of computation of compensation payable for the vesting of the surplus land in the State. Section 14W provides for payment of damages for use and occupation of land in excess of the ceiling area by a raiyat if he continues to possess such land after the commencement of Chapter IIB. Section 14X bars the jurisdiction of the Civil Courts to decide or deal with any question or determine, any matter which is by or under this Chapter required to be decided or dealt with or to be determined by Revenue Officer or other authority specified therein and no orders passed or proceedings commenced under the provisions of this Chapter shall be called in question in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amendment in 1955 was in a sense less sweeping than the provision introduced by the First Amendment, exempting laws from the effect of only three of the fundamental rights-Articles 14, 19 and 31, instead of the entire Part III, which contains all the rights. 20. The Constitution (Seventeenth Amendment) Act, 1964 made important changes in the definition of 'estates' in Article 31A(2) in order expressly to include ryotwari interests and measures affecting all kinds of land held or let for purposes of agriculture or for purposes ancillary thereto. 21. Article 31A(1), as it stands, provides that no law providing for acquisition of any estate or any rights therein or the modification or extinguishment of any such rights in an estate shall be deemed to be void on the ground that it violates the fundamental rights under Articles 14, 19 and 31. Undoubtedly, Article 31A is attracted when the law in question is one for agrarian reform. 22. By adding a proviso to Article 31A(1), which, it will be recalled, states that no law providing for the acquisition, modification or extinguishment of property rights of specified kinds (including acquisition of estates or modification of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant step forward, the feudal structure remained so far as the peasants were concerned. These objectives have been achieved through progressive legislation. 25. It is argued that Sub-section (1) of Section 6 of the West Bengal Estates Acquisition Act, 1953 imposed a ceiling on holdings, as it allowed all intermediaries to retain 25 acres of agricultural land in their khas possession, which became applicable to raiyats and under-raiyats who were deemed to be such intermediaries upon the issue of a notification Under Section 49 on April 14, 1956. The ceiling limit thus imposed was continued by Sub-section (3) of Section 4 of the West Bengal Land reforms Act, 1955. One has to see, it is urged whether there was a law in force, i.e., a law imposing a ceiling when the West Bengal Land Reforms (Amendment) Act, 1971 (President's Act III of 1971) was brought into force on February 12, 1971 or the West Bengal Land Reforms (Amendment) Act, 1972 (Act XII of 1972) which replaced it with retrospective effect from that date. Once that test is fulfilled it is said, the second proviso to Article 31A(1) is clearly attracted. It is, further urged that if the ceiling limit of a raiyat in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Kerala MANU/SC/0634/1972 : [1973]1SCR326 and Malankara Rubber and Produce Co. v. State of Kerala. MANU/SC/0544/1972 : [1973]1SCR399 . In Kunjukutty's case the Court disposed of a contention similar to that raised before us. It was urged that when the Kerala Land Reforms Act, 1963, as amended by the Kerala Land Reforms (Amendment) Act, 1969, by Section 82 reduced the ceiling limit and required surrender of the land held in excess of the limit fixed by the Amendment Act, without payment of compensation at market value, it violated the constitutional inhibition contained in the second proviso to Article 31A(1). In repelling the contention, it was observed : It was not disputed that the ceiling limit fixed by the amended Act was within the competence of the legislature to fix; nor was it contended that the ceiling fixed by the original unamended Act by itself debarred the legislature from further reducing the ceiling limit so fixed. Prior to the amendment undoubtedly no land within the personal cultivation of the holder under the unamended Act within the ceiling limit fixed thereby could be acquired without payment of compensation according to the market value, but once ceili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kerala Land Reforms Act, 1963 was challenged as offending the second proviso to Article 31A(1). Under the (sic) explanation, subject to certain exceptions, any land transferred by a person holding in excess of the ceiling area between certain dates, was to be regarded as held by the person for the purpose of fixing the extent of the land to be surrendered by him and such surrender was to be out of the land still held by him. The Kerala High Court struck down the said provision as offending the second proviso to Article 31A(1) observing: If a fiction by which land not held by a person could be taken into account for the determination of the excess land to be surrendered by him, and he could be forced to surrender land actually held by him although it is within the ceiling limit without payment of the market value thereof, were permitted, the proviso in question could easily be rendered nugatory. This Court upheld the decision of the High Court and observed: It is clear that by virtue of the second proviso to Article 31A MANU/SC/0511/1972 : [1973]3SCR1 land within the ceiling limit is expressly protected against acquisition by the State unless the law relating to such acqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich, but for this provision, were liable to be impugned under Article 13(2). Article 31-B conferred constitutional immunity to such laws (all being enactments of State Legislatures) and Parliament alone could have done so by inserting the said Article in the Constitution in exercise of its constituent power under Article 368. In substance and reality it was a constitutional device employed to protect State laws from becoming void under Article 13(2). It will appear clear that the language in Article 31-B is virtually lifted from Articles 13(1) and (2). While Article 13(2) invalidates legislation, which takes away or abridges the rights conferred by part III, Article 31-B extends 'protective umbrella' to such legislation if it is included in Ninth Schedule and, therefore, the Courts will have no power to go into the constitutionality of the enactments as included in the Ninth Schedule except on the ground of want of legislative competence. 36. The challenge to the definition of 'family' in Section 14K(c) is based on the submission that it is an artificial definition and does not take into account the concept of a family as it exists in West Bengal. The word 'f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of ceiling on agricultural holdings enacted in other states The definition is much wider, and far more generous and human because it takes into consideration the existence of a widowed and divorced daughter, which is absent in other Acts. The meaning given by Explanation I to an adult unmarried person is an inclusive one and it includes a daughter who has been divorced. This necessarily also includes a widowed daughter. By the proviso added to Expln. I, where such widowed daughter is the guardian of any minor son or unmarried daughter, or both, she, together with such minor son or unmarried daughter, or both, shall be deemed to be a separate family. She, therefore, is treated to a raiyat in her own right in relation to her family and her holding is not clubbed with that of her father Under Section 14M(2). The benefit provided to a divorced daughter would obviously also extend to a widowed daughter. Explanation II deals with the spouse as in relation to a raiyat who is a woman, reference in cl.(c) to wife's son or daughter, shall be construed as reference to the husband's son or daughter, respectively of such woman. The legislature on a correct perspective has enlarged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is parents, from acquiring property of their own subsequently by inheritance or transfer. 41. Learned counsel for the petitioners tried to highlight certain imperfections in the definition of family which he seems to imagine. To illustrate, he speaks of a family of a raiyat having his wife, three married adult sons (having no land of their own), having wives arid three minor sons each and one unmarried daughter. The instance of the family given by him consists of 18 members. According to Section 14M(2)(b), the raiyat would be entitled to retain no more than 7.0 standard hectares i.e. 5.0 standard hectares for his family up to five members and 0.50 standard hectare per head for four other members. Therefore, we are told that in this case, nine members of the family including minor sons', who have to be brought up, would be entirely deprived of the right to hold property or any land. Further, the counsel urges that if the three adult sons died, the raiyat will have to maintain the minor sons of his predeceased sons, besides the unmarried daughters, of his own. The legislature cannot be expected to provide for all these exigencies. It is difficult to envisage a family consistin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aiyat having a family consisting of more than five members at 5.0 to 7:0 hectares is objected to as being wholly arbitrary and unreasonable. As already stated, the extent of the holdings on which ceiling is fixed varies depending upon whether it is an irrigated area or any other area. We fail to see any arbitrariness and indeed there is no substantial decrease in the limit. One standard hectare is equivalent to 2.47 acres. The ceiling limits, therefore, work out to 6.18 acres in the case of an individual, and 12.35 to 17.29 acres of irrigated land, in the case of a family, which, in the Gangetic plains of West Bengal, is not small by any standard. In other areas, the ceiling limit varies from 8.64 to 24.2 acres. According to agro-economists, an economic holding is of 5 to 7 acres. 44. It is not possible to lay down a ceiling standard or prescribe one limit in terms of fixed acreage for general application throughout the country. The productivity of land is not the same in all areas, due allowance has to be made for varying local conditions. The First Five-Year Plan suggested a ceiling limit to be fixed in terms of a multiple of a family holding. Following the recommendations of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht consider the suggestion earlier made by the Panel on Land Reform (and this has already been provided in some laws), namely, to apply ceilings to the aggregate area held by all the members of a family, rather than to individual holdings, the family being defined to include husband and wife, their dependent children and grandchildren. 45. We may then take up the contention regarding the alleged invalidity of Section 14P and 14U. The fixation of a back-date is a usual legislative device to prevent avoidance of change brought about by law. There is no warrant for the submission that the date mentioned in Section 14P bears no reasonable nexus with the object or purpose of the legislation. The -West Bengal Land Reforms (Amendment) Act, 1971, while inserting Chapter IIB enacted Section 14P providing that in determining the ceiling area of a raiyat any transfer effected by sale, gift or otherwise or by a partition by him after August 7, 1969 and before February 8, 1971, i.e., the date of publication of the Act in the Official Gazette shall not be taken into account and the land shall be deemed to form part of the holding of the raiyat. By a legal fiction, such transfers were presumed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the date of publication of the Act and after August 7, 1969 shall not be taken into consideration. The legislature fixed August 7, 1969 as the date from which all such transfers or partitions shall be deemed to have been effected with the intention of defeating the law. Such transfers were presumed to be mala fide as they had taken place in anticipation of the enactment and, therefore, liable to be ignored. As the ceiling was fixed for each individual raiyat and not the family, as a unit, there was practically no limit to the amount of land that could be held by a family in this way, and therefore, the legislature had to insert Section 14M(2) for their shares to be clubbed together. There were plenty of reasons to believe that splitting of big holdings between members of the family had taken place on considerable scale in anticipation of the legislation. 49. As regards Section 14U, there is no absolute bar against transfers till the determination of the ceiling area Under Section 14M. The fundamental right to acquire, hold and dispose of property guaranteed under Article 19(1)(f) was subject to the right of the State to impose reasonable restrictions under Article 19(6). T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to contend that an orchard as defined in Section 14O(2) does not come within the definition of land in Section 2(7). If such a construction were to be adopted, it would imply that there would be no ceiling on agricultural holdings in large tracts of land in the district of Malda which is famous for its mango orchards. The legislature by enacting Section 14O(2) treats the land comprised in orchards, as falling within the purview of Section 14M, but having regard to the fact that there is a sufficient cluster of fruit-bearing trees in an orchard, which precludes the utilisation of the land comprised, therein, or substantial portion thereof, for effective cultivation, allows an additional area of two standard hectares for each raiyat. We find nothing wrong in the provision contained in Section 14O(2). On the contrary, it appears to be a very reasonable provision. 52. It is argued that the provision with regard to imposition of a ceiling on orchards contained in Section 14O(2) is not protected by Article 31A as the land comprised in orchards cannot be said to be agricultural land, nor can acquisition of land comprised in orchards be a part of agricultural reform as it is not held or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able after the Fourth Amendment. It cannot be asserted that compensation payable for acquisition of land comprised in orchards in excess of the ceiling limit in Section 14O(2), according to the provisions of Section 14V is illusory. Where the law provides for payment of compensation as much as twenty times the annual income, it is virtually the capitalised value. The petitioners who own orchards would, therefore, get much more as the income derived by them would be greater than the raiyats holding land in excess of the ceiling limit in Section 14M(2). 55. There remains the question as to whether the provisions of Chapter IIB must be struck down on the ground that it permits the taking away of the homestead of a raiyat without payment of compensation. The definition of land as contained in Section 2(7) is an inclusive one and means agricultural land other than land comprised in a tea-garden and includes homesteads but does not include tank. There can, therefore, be no doubt that the provisions of Chapter IIB shall apply where the homestead is included in the record of rights as forming part of an agricultural holding. Agricultural holding of a raiyat includes his homestead and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions for any homestead which is vested in the State under the provisions of the Act. A raiyat is within his rights to retain land upto the ceiling limit applicable to him in accordance with Section 14M and 14T. Thus a raiyat is at liberty to retain his homestead and not to allow it to be vested in or acquired by the State under the Act. It is expected that normally raiyats would retain their homesteads and, therefore, the question of ousting them from their homesteads does not arise at all. In other cases, where raiyats willingly give up their homestead to be vested in the State, i.e. to be acquired by the State without desiring to retain the same within the ceiling area applicable to him, the question of payment of compensation will arise and in such cases, compensation would be computed in accordance with Section 16(1)(a)(ii) of the Estates Acquisition Act read with Rule 15(b) and (d) of the Estates Acquisition Rules. 61. The last contention as to the constitutional validity of Section 14M(5) on the ground that it is violative of Article 26 appears to be misconceived. The submission is that since the fundamental right to own property under Clause (c) of Article 26 is subj ..... 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