TMI Blog1974 (5) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment this appeal is by certificate. The appellant is the maktedar of the suit inam lands situate in Sardarnagar and Kurvaguda in Hyderabad District. The grant by the Nizam of the Makta in favour of his predecessors-in-interest in respect of Sardarnagar inam lands was by muntakab (decree) Ex. P-1 dated August 15, 1944. This grant was in perpetuity with specific term 'Ba Hama-Abwab' (with all sources of income) and 'Bila-Quiyame- Haqe-Sirkar' (without any deduction as Government share). A similar muntakab Ex. P-2 was granted by the Atiyat Court in respect of the 'Arazi Maktha' (minor inam) of inam lands of Kurva guda village. The appellant enjoyed all the rights granted to him under the respective muntakabs which included the right of selling Sendhi shops, collection of tree tax and other similar rights. Earlier the erstwhile Hyderabad Government by its order dated 22nd Isfendar 1355 F. corresponding to 24th January 1946 acquired the right of the appellant in respect of selling opium, ganja and the right of distilling liquor by payment of compensation but it did not acquire the right of selling Sendhi or tree tax,Haque Malikana and licence fee in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ude these rights also and that ss. 17 to 20 show the mode for determining total compensation payable in respect of inams: so it cannot be said that the aspect of compensation for the Abkari right is not covered by the Act. It accordingly dismissed the suit. In appeal against that judgment the High Court also held that Abkari rights are not granted independently splitting them from the inams and since all rights, title and interest in the inam lands have been abolished by the Abolition Act which on an interpretation of s. 3(2) (b) of the Act read with the definition of land in Land Revenue Act 1317 F. would also vest the Abkari rights of the inamdar in the Gov- ernment. As the appellant's rights have been extinguished his suit was held to be rightly dismissed and consequently the appeal also was dismissed. The simple question in this case, therefore, is whether the inams granted under Exs. P-1 and P-2 vested in the Government along with the Abkari rights as contended by the respondent or is it only the lands that have vested in the Government on the abolition of the inams without the Abkari rights which still vest in the appellant as contended by the appellant. In the alte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court of Andhra Pradesh was not to revive Act 8 of 1955 as amended by Act 10 of 1956 which being dead could not be revived. Accordingly the vesting of the inams in the Government under the repealed Acts 8 of 1955 and 10 of 1956 has no legal validity. Secondly, it is contended that even assuming that Act 8 of 1955 and Act 10 of 1956 are revived, these Acts are constitutionally invalid on two grounds urged before the High Court, namely (i) for want of legislative competence; and (ii) as the law takes- away property without compensation it conflicts with the provisions of Art. 31(2) of the Constitution and is therefore invalid. Thirdly, on a proper construction of S. 12 of the Abolition Act it would appear that there is no provision made for payment of compensation for taking away the Abkari rights of the appellant inasmuch as the compensation that has been provided for under the Act is in respect of the lands and not the Abkari rights. The law also does not got the protection of Art. 31A of the Constitution as the abolition of Abkari rights is not in furtherance of agrarian reforms. Alternatively, it was contendedthat upon a proper construction of the provisions of Act 8 of 1955 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned Act was protected from attack in any Court on the ground that it contravened Art. 31(2). Secondly, it was also held that the entries in the Lists of the Seventh Schedule were designed to define and delimit therespective areas of legislative competence of the Union and State Legislature and the principle of the maximum expressum facit cassare tacitum makes it inappropriate to treat the obligation to pay compensation as implicit in Entry 33 of List I or Entry 36 of List II when it is separately and expressly provided for in Art.31(2). Thirdly, the words 'subject to the provisions of Entry 42 List III' mean no more than that any law made under Entry 36 by a State Legislature can be displaced or overridden by the Union Legislature making a law: under Entry 42 of List III. If the restrictive condition as to public pur-pose and payment of compensation are to be derived from these words, their absence in Entry 33 of List I leads to the unreasonable inference that Parliament can make law authorising acquisition of property with,out a public purpose and without a provision for compensation. The 'true inference is that the power to make a law, belonging both to Parlia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of compensation or grant of patta, that would hardly alter the position. The effect of the impugned Act in pith and substance is really not agrarian reform but to destroy the rights ,of the inamdars and others who were assured compensation under the repealed Act. Thus the Act although pretends to enact a law relating to agrarian reform in spirit' and in effect it is a device to deprive the inamdars and other persons of their acquired rights under the repealed Act. The striking down of Act 9 of 1967 must be construed in the light of the reasoning given by the learned Judges of the Division Bench of the Andhra Pradesh High Court that the Abolition Act 8 of 1955 and the Amendment Act 10 of 1956 had already achieved the result which Act 9 of 1967 was intended to achieve, and once the inams had already vested in the Government, compensation had to be paid in accordance with the terms of those laws and cannot again be reopened by vesting the inams which had already vested as if they had not already vested in the Government. This postulates the existence, of the Acts impugned before us as a ground for striking down Act 9 of 1967, so that when the High Court says that. the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islature could not abolish again. In these circumstances, the repeal of an enactment, which had already been given effect was a device for depriving the inamdars whose rights had been abolished, of their right of compensation, and was accordingly struck down as still-born, null and void, as such unconstitutional from its inception and cannot have the effect as if it had repealed the previous Acts. On this analysis the provisions of Acts 8 of 1955 as amended by Act 10, of 1956 could not be held to have been repealed it all, and therefore they are in existence. The question that now remains is whether Act 8 of 1955 as amended by Act 10 of 1956 abolishes the Abkari rights also, and if so, whether the compensation provided in the aforesaid Acts includes those rights also. On the first question S. 2(1) (c) of the Abolition Act defines 'inam' as meaning land held under a gift or a grant made by the Nizam or by any Jagirdar, holder of a Samathan or other competent granter and continued or confirmed by virtue of a muntakhab or other title deed, with or without the condition of service and coupled with the remission of the whole or part of the land revenue thereon and entered as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries and ferries, shall cease and be vested absolutely in the State free from all encumbrances; (c)all such inam lands shall be liable to payment of land revenue; (d)all rents and land revenue including cesses and royalties, accruing in respect of such inam lands, on or after the date of vesting, shall be payable to the State and not to the inamdar, and any payment made in contravention of this clause shall not be valid. Under s. 4 of the Abolition Act every inamdar shall, with effect from the date of vesting, be entitled to be registered as an occupant of all inam lands other than those specified in clauses (a), (b) and (c) of that section. Similarly under S. 5 every kabiz-e-kadim shall, with effect from the date of vesting, be entitled to be registered as an occupant in respect of such inam lands in his possession which were under his personal cultivation and which, together with any lands he separately owns and cultivates personally, are equal to four and a half times the 'family holding'. Under sub-s. (2) of S. 4 the: kabiz-e-kadim shall be entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e saved are those that are saved by the express provisions contained in the Abolition Act. It is, therefore, clear that all rights, title and interest vesting in the Inamdar would include the Abkari rights in the trees., This conclusion of ours is supported by the definition of 'land' in s. 2(1-b) of the Andhra Pradesh Land Revenue Act which has to be imported into the definition of 'inam land' and' which includes any rights in or over such property of benefits accruing from the land or things attached to the land and will also include shares in the charges on the revenue or rent. This Court had in State of Bihar v. Rameshwar Pratap Narain Singh([1962] 2 S.C.R. 382) while dealing with the validity of the Bihar Land Reform. Amendment Act of 1959 considered the question whether the right of a proprietor of an estate to hold a 'mela' on his own land was a right in the estate, and held that the right to hold a 'Mela' has always been considered in this country to be an interest in land, an interest which the owner of the land can transfer to another along with the land or without the land. There can be no doubt therefore that the right of the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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