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TMI Blog1952 (5) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Proprietary Right Act. The Act received the assent of the President of India on the 22nd January, 1951, and was published in the Madhya Pradesh Gazette on the 26th January, 1951, as Act I of 1951. By a notification in a gazette extraordinary issued on the 27th January, 1951, the Madhya Pradesh Government fixed 31st March 1951, as the date of vesting of the estates under section 3 of the Act. The petitioner thus was to lose his estate and lands on the 31st March 1951. On the 9th March, 1951, i.e. before the vesting date, he presented the present application to this court for the issue of appropriate writs against the government prohibiting it from taking possession of his properties. It was alleged that the Madhya Pradesh Act, I of 1951 was unconstitutional and void and infringed the fundamental rights of the petitioner in a variety of ways. 3. For a proper appreciation of the ground on which the validity of the Act is being challenged it is necessary to set out the relevant provisions of the Act and to state the facts which led to this enactment. 4. Madhya Pradesh is a composite State, comprising the Central Provisions, Berar and the merged territories. By an agreement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the reduction of the net income of the proprietors to a large extent. On the 11th October, 1949, the impugned Act was introduced in the Madhya Pradesh Assembly. It was referred to a Select Committee on the 15th October, 1949; the Select Committee reported on the 9th March, 1950, the report was published on the 17th March, 1950, and was taken into consideration on the 29th March, 1950, by the Assembly. On the 30th March, 1950, the opposition moved for the circulation of the Bill. The circulation motion was negatived on the 3rd April 1950, and the Bill was discussed clause by clause were passed between the 3rd of April of the 5th of April. On the 5th April. On the 5th April, 1950, the member in charge of the Bill moved as follows :- "Speaker Sir, I now move that the Central Provinces & Berar Abolition of Proprietary Rights (Estates, Mahals Alienated Lands) Bill, 1949 (No. 64 of 1949) as considered by the House be passed into law." The Hon'ble the Speaker said : Motion moved that the Central Provisions & Berar Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Bill 1949 (No. 64 of 1949) as considered by the House be passed into law," 8. A num ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts in the State and states the consequences of the vesting. Section 3 is in these terms :- "Save as other wise provided in this Act, on and from a date to be specified by a notification by the State Government in this behalf all proprietary rights in an estate, mahal alienated village or alienated land, as the case may be, in the area specified in the notification vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances..........". 13. Section 4 provides that after the publication of the notification under Section 3, all rights titles and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land (cultivable or barren), grass land, scrub jungle, forest trees fishes, wells, tanks ponds water-channels, ferries, pathways, villages sites, hats bazars and meals; and in all subsoil including rights if any in mines and minerals, whether being worked or not, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd lay down the procedure for the determination of compensation. Schedule I provides that the amount of compensation in the Central Provinces and in Berar shall be ten times the net income determined in accordance with the rules mentioned in the schedule. In merged territories the compensation is payable on a sliding scale varying from two times to ten times the net income. Schedule II lays down the measure of compensation on a scale varying from five to fifteen times the assessment on the land as specified in the schedule. Section 2 of the Schedule I provides for the calculation of the gross income by adding the amount of income received by a proprietor from the aggregate of the rents from the tenants as recorded in the jamabandi for the previous agricultural year; the siwai income that is income from various sources such as jalkar, bankar, phalkar, hats, bazars, melas grazing and village forest calculated at two times the income recorded in the current settlement of 1923; and the consent money on transfer of tenancy lands-the average of transactions recorded in the village papers for ten years preceding the agricultural year in which the date of vesting falls. The schedule also p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Act provides for the giving of rehabilitation grant to expropriated proprietors within a certain range provided for in Schedule III. The last chapter in the Act deals with miscellaneous matters including the power of making rules. 15. The main purpose of the Act is to bring the actual tillers of the soil in direct contract with the State by the elimination of intermediary holders. In short, the Act aims at converting malguzari into ryotwari land system. In also aims at giving to the gram panchayats the management of common lands freed from the grip of proprietors and contemplates the establishment of self-government for the villages. The provisions of the Act in respect of payment of compensation, though they do not in any way provide for an equivalent in money of the property taken and in that sense may not be adequate cannot be called illusory. This Act is a definite improvement on the Bihar Act; it leaves the arrears of rents due in the hands of the proprietors and does not operate artificially to reduce the net income by any device. It also provides that in no case the net income should be reduced below five per cent of the gross income. The result is that in every case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000; but as the net income cannot be reduced below five per cent. of the gross income which comes to ₹ 6500, compensation payable is ₹ 65,000 while the yearly income of the petitioner was in the neighbourhood of ₹ 5,65,000 and the market value of his property is 25 lakhs. 18. The first and the main objection to the validity of the Act taken by the learned counsel is that the Bill was never passed into law. As already indicated, this objection is founded on the omission from the proceedings of the Madhya Pradesh Legislative Assembly dated the 5th April, 1950, of a statement to the effect that the Bill was put to the House by the speaker and was passed by it. Reference was made to rules 20,22, 34 and 115 of the rules regulating the procedure of the legislature framed under the Government of India Act, 1935, in the year 1936, which provides as follows :- "20 (1). A matter requiring the decision of the Assembly shall be decided by means of a question put by the Speaker on a motion made by a member 22. After a motion has been made, the speaker shall read the motion for the consideration of the Assembly. 34 (1) Votes may be taken by voices or division and sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad becomes an Act. The Legislature of Madhya Pradesh consists of the Governor and the Legislative Assembly. It was said that even if the Bill was passed by the Legislative Assembly, it was not assented to by the Governor but was straightway sent to the President and that without the assent of the Governor the Bill could not become law despite the fact that it was assented to by the President and it was pointed out that sub-clause (3) of article 31 of the Constitution speaks of "law" being reserved for the consideration of President and not merely a " Bill". This argument, in my opinion, has not much force having regard to the terms and scope of article 200. The Governor under that article could assent to a Bill or could reserve it for the consideration of the President at his option. The Governor being empowered to reserve the Bill for the consideration of the President and this having been done, it was for the President either to assent to the Bill or to withhold his assent. The President having given his assent, the Bill must be held to have been passed into law. It does not seem to have been intended that the Governor should give his assent to the Bill and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Constitution, the law so assented to shall not be called in question in any court on the ground that it contravenes the provisions of clause (2)." 23. In this context the word "Legislature" means the House or Houses of Legislature and does not include the Governor with in its ambit. This word has not the same meaning in all the articles. In some articles it means the Governor as well as the Houses of Legislature, while in a number of other articles it only means the House or Houses of Legislature. Article 31(4) means that if any Bill contravening the provisions of clause (2) of article 31 is passed by the House or Houses of Legislature but is reserved for he consideration of the President and receives his assent, then it shall become law, not open to any objection on the ground of such contravention. 24. Next it was contended that the obligation to pay compensation was implicit in the legislative power contained in entry 36 of List II and that the Act was unconstitutional as it had provided for acquisition of zamindaris without payment of compensation, the provisions relating to it being illusory. This contention fails for the reasons given in my judgment in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es made under the statute and in case the rules are so made that they amount to an abuse of the exercise of that power, they can always be challenged on that ground. 27. The argument that the Act is bad inasmuch as it delegates essential legislative power to the executive is negatived for the reasons given in the Bihar case. 28. A point was raised that the constitutional amendments in articles 31-A and 31-B could not affect the petitioner's guaranteed rights contained in Part III of the Constitution in so far as the eighty malguzari villages were concerned, because those mahals did not fall within, the ambit of the word "estate" as defined in article 31-A. In sub-clause (2) (a) the definition is in these terms :- "The expression 'estate' shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or muafi or other similar grant." Section 2 (3) of Act II of 1917, C. P. Land Revenue Act, defines the expression "estate" thus :- "an estate as declared by the State Government." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (1)'". Article 31-B is in these terms :- " Without prejudice to the generality of the provisions continued in article in article 31-A none, of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void....... on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of the court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force." 30. On the basis of the similarity of the language in the opening part of article 31-B with that of sub-section (2) of section 2 part of the Defence of India Act, "without prejudice to the generality of the provisions contained in article " 31-A", it was urged that article 31-B was merely illustrative of article 31-A and as the latter was limited in its application to estates as defined therein, article 31-B was also so limited. In my opinion, the observations in Sibnath Banerjee's case ((19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule. This proposition was sought to be supported by reference to a passage from Stephen's Commentaries on the Laws of England, Vol. III, p. 541. The passage, however read in its entirety, negatives the contention. It may be mentioned that under powers of compulsory acquisition a number of properties have been nationalized in England and other countries. 34. Lastly, it was urged that the legislation in question was not enacted bona fide inasmuch as in 1946 the legislature having passed a resolution to end zamindaries, proceeded to enact laws with the purpose of defeating the constitutional guarantees regarding payment of compensation by various devices. As a first step in this direction the revenue was enhanced in order to reduce the gross income of the zamindars, then other Acts mentioned in the earlier part of the main judgment were enacted with the same end in view. In my opinion this argument is void of force. It was within the competence of the Government in exercise of its governmental power to enhanced land revenue, to withdraw exemption of land revenue, wherever those had been granted, and to enact other laws of a similar character. There is no evidence whatsoever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me that in view of the comprehensive language of article 363 this issue is not justiciable. 39. This petition is accordingly dismissed but there will be no order of costs. 40. Petitions Nos. 228, 230, 237, 245, 246, 257, 280, 281, 282, 283, 284, 285, 287, 288 and 289 of 1951. 41. In all these fifteen petitions, Mr. Swami appeared for the petitioners. Seven of these are by zamindars from Madhya Pradesh who are owners of estates. The petitioner in Petition No. 246 also owns certain malguzari villages. Petitioner in Petition No. 237 is a malguzar of eighteen villages but owns no estate. Petitions Nos. 280 to 285 and 257 relate to merged territories. The petitioner in Petition No. 282 was ruler of a State (Jashpur) and the petition concerns his private properties. Petitioners in Petitions Nos. 283, 284 and 285 are Ilakadars and in Petitions Nos. 280 and 285 they are mafidars. Petitioner in Petition No. 281 is a Thikedar i.e., revenue farmer of three villages. Mr. Swami reiterated the contention raised by Mr. Somayya that the Act was not duly passed by the legislature. For the reasons given in Petition No. 166 of 1951, I see no force in this contention, Mr. Swami also reiterated Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, on 9th April 1951, dismissed. The High Court certified under article 132(1) that the cases involved a substantial question of law as to the interpretation of the Constitution. No appeal, however, appears to have been actually filed presumably because the present applications under under article 32 had already been filed in this Court. 47. It may be mentioned here that the States of Bihar and Uttar Pradesh also passed legislation for the abolition of zamindar in their receptive States and the validity of those legislations was also contested by the proprietors affected thereby. While the High Court of Allahabad upheld the validity of the Uttar Pradesh Act, the High Court of Patna held the Bihar Land Reforms Act, 1950 to be unconstitutional only on the ground that it offended the fundamental right of equal protection of the law guaranteed by article 14 of the Constitution. In the circumstances, the Constituent Assembly passed the Constitution (First Amendment) Act, 1951, by section 4 and 5 of which two new articles, namely, article 31-A and article 31-B were inserted into the Constitution. A new schedule called the Ninth Schedule specifying 13 several Acts and Regulations includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t will be helpful to note the course which the Bill took before it was put on the Statute Book. There is no dispute as to the correctness of the dates given to us by counsel for the petitioners. The Bill was introduced in the Madhya Pradesh Assembly on 11th October, 1949. It was referred to a Select Committee on 15th October 1949. The Select Committee made its Report on 9th March, 1950, which was presented to the Assembly on 29th March, 1950. The Assembly considered the Bill in the light of the Report between that date and 5th April 1950, during which period the amendments proposed by the Selected Committee were moved and disposed of. It appears from the Official Proceeding of the Madhya Pradesh Legislative Assembly of 5th April, 1950 that the after the last amendment had put to the House and accepted, the Hon'ble Minister for Education (Sri P. S. Deshmukh) moved that the Bill be passed into law and and delivered a short speech inviting the members to finally pass the Bill. The Speaker then read out the motion. Then followed speeches by 11 speakers congratulating the Government and some of the members who took an active part in carrying, through this important measure of land r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er announced by the Speaker as required by old rule 34. There being a presumption of regularity attached to all official business the onus is undoubtedly on the petitioners to allege and prove that the procedure prescribed by the rules was not followed. There is no evidence on affidavit by anybody who was present at the meeting of the Assembly held on 5th April, 1950, as to be what actually happened on that date. The petitioners rely only on the absence in the Official Report of proceedings of any mention of the question being put to or carried by the Assembly. The Official Proceedings were prepared and confirmed in terms of old rule 115 which was as follows :- " (1) The Secretary shall cause to be prepared a full report of the proceedings of the Assembly at each of its meetings and publish it as soon as practicable. (2) One impression of this printed report shall be submitted to the Speaker for his confirmation and signature and when signed shall constitute the authentic record of the proceedings of the Assembly." 51. The argument is that the initial onus that was on the petitioners has been quite adequately and effectively discharged by the authentic record of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were framed. It appears that new rules were framed and actually came into force on 8th September 1950, New rule 148 does not reproduce sub-rule (2) of old rule 115 After the new rules came into force it was no longer the duty of the Speaker to confirm the proceedings at all. Therefore the purported confirmation of the proceedings by the Speaker on 1st October 1950, cannot be given any legal validity and the argument founded on authentication under defunct rule 115 (2) must lose all its force. Finally, the irregularity of procedure, if any, is expressly cured by article 212. I am not impressed by the argument founded on the fine distinction sought to be made between an irregularity of procedure and on omission to take a particular step in the procedure. Such an omission in my opinion is nothing more than an irregularity of procedure. In my judgment this ground of attack on the validity of the Act is not well-founded and must be rejected. Re. (b) : Article 31(3) on which this ground of attack is based runs as follows :- (3) No such law as is referred to in clause (2) made by the Legislature of a State Shall have effect unless such law, having been reserved for the consideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssent to it or if, having been reserved by the Governor for the consideration of the President, it is assented to by the President. In the latter event happening, the argument of the learned counsel for the petitioners will require that what has become a law by the assent of the President will, in order to be effective, have to be again reserved for the consideration of the President, a curious conclusion I should be loath to reach unless I am compelled to do so. Article 200 does not contemplate a second reservation by the Governor. The plain meaning of the language of article 31(3) does not lead me to the conclusion. The whole arguments is built on the word "law". I do not think that what is referred to as law in article 31(3) is necessarily hat had already become a law before receiving the assent of the President. If that were the meaning the clause would have said " unless such law, having been reserved for the consideration of the President, receives his assent". The words " has received his assent" clearly imply and point to an accomplished fact and the clause read as a whole does not grammatically exclude a law that eventually become a law by hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat is said to be the legislative incompetence of the Madhya Pradesh Legislature to enact the impugned Act in view of the language of legislative topics set forth in entry 36 in List II and entry 42 in List III or on the ground that the Act is a fraud on the Constitution or that it delegates essential legislative power to the executive Government which is not permissible. Suffice it to say that for reasons stated in my judgments in the Bihar appeals I repeal these heads of objections. If anything the existence of a public purpose is more apparent in the Madhya Pradesh Act than in the Bihar Land Reforms Act. Further the compensation provided in the Madhya Pradesh Act is more liberal than that provided in the Bihar Act, for under clause 4 (2) of Schedule I the net income can in no case be reduced to less than 5 per cent. of the gross income. In any event the Act cannot, for reasons stated by me in my judgment in the Bihar appeals, be questioned on the ground of absence of public purpose or of compensation. The fact that the Madhya Pradesh Legislature passed several Acts one after another, e.g. C. P. Revision of the Land Revenue of Mahals Act, 1947, enhancing the land revenue of the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ath Banerjee's case ((1945) L.R. 72 I.A. 241; [1945] F.C.R. 195), should be applied to them. I do not see how the Principles enunciated by the Judicial Committee can have any possible application in the interpretation of article 31-B. Article 31-B is neither illustrative of nor dependant on article 31-A. The words referred to were used obviously to prevent any possible argument that article 30-B cut down the scope or ambit of the general words used in article 31-A. 53. A question was raised by Mr. Asthana appearing for the Ruler of Khairagarh who is the petitioner in Petition No. 268 of 1951. Khairagarh is one of the States which formerly fell within the Eastern States Agency. On 15th December, 1947, the Ruler entered into a covenant of merger. In that covenant the properties in question were recognised as the personal properties of the Ruler as distinct from the State Properties. Reference is made to article 362 which provides that in the exercise of the per of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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