TMI Blog1971 (10) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... n particular, clauses (b) and (c) thereof, namely, that the ownership and control of the material resources of the community were to be so distributed as best to subserve the common good 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 acquiring 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 a ceiling on the holdings of agricultural land holdings so as to render the surplus available for distribution. 2. The scheme of the Act in a nut-shell is as follows. By Chapter II of the Act containing Sections 5 to 18 provision is made for the fixation of 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 acquisition of surplus land after the publication of the final statement as e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or (ii) in respect of whose family properties a preliminary decree for partition has been passed; before the commencement of the Act. Under clause (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 mortgage or a tenant or as intermediary or in one or more of those capacities. Under clause (34) 'person' includes any trust, company, family, firm, society or association of individuals, whether incorporated or not. Under clause (45) surplus land means the land held by a person in excess of the ceiling area and declared to be surplus land under Sections 12 , 13 or 14. 5. The Act was challenged by writ petitions filed in this Court in 1963 (A. P. Krishnaswamy Naidu v. State of Madras [1964]7SCR82 on the ground that its provisions violated Arts. 14, 19 and 31(2) of the Constitution. The first attack was at Section 5 of the Act laying down the ceiling area and the second at Section 50 of the Act read with Schedule III thereof which provided for compensation. It was urged that the Act was not protected under Article 31A of the Constitution relying on the judgment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the Constitution Seventeenth Amendment Act of 1964 but also Constitution Fourth Amendment Act, 1955 and Constitution First Amendment Act, 1951 in so far as they affected the petitioners' fundamental rights. The first petition in that group of cases was filed by a group of persons against an order made by the Financial Commissioner, Punjab holding 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 with Section 10-B thereof. Five learned Judges of this Court held all the amendments to be valid, while four others concurred in the judgment delivered by Subba Rao, C.J. holding that although the above 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 this Court to the contrary. One learned Judge took the view that the fundamental rights were outside the amendatory process if the 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 a long time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.C.R. 682. In Balsara's case this Court had held 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 expressly mentioned the rest of the Act was valid. It was also held that the decision declaring some of the provisions of the Act invalid did not affect the validity of the rest of the Act. The effect of partial declaration of the invalidity of Section 13(b) had to be considered by a 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 Constitutional invalidity of a part of Section 13(b) of the Bombay Prohibition Act having been declared by this Court, that part of the section ceased to have any legal effect in judging cases of citizens and had to be regarded as null and void in determining whether a citizen was guilty of an offence. 11. His Lordship also observed that in India there was no scope for the application of the American doctrine enunciated by Willoughby that the declaration by a court of un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .: a statute void for unconstitutionally is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the Constitutional objection but must be re-enacted. 15. Strong reliance was placed on certain observations of this Court in Deep Chand v. The State of Uttar Pradesh Ors. [1959] Su. 2 S.C.R. 8. In Deep Chand's case the Constitutionality of the U.P. Transport Service (Development) Act, 1965, the validity of the scheme of nationalisation framed and the notifications issued by the State Government thereunder were 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 Article 13. He posed the question: if Arts. 245 and 13(2) define the ambit of the power to legislate, what is the effect of a law made in excess of that power? According to him the American Law gave a direct and definite answer to this question. He quoted from Cooley in his Constitutional Limitations' (Eighth Edition, Vol. I) at p. 382 where the learned author said: When a statute is adjudged to be unconstitutional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the provisions of Part III of the Constitution enshrining the fundamental rights were mere checks or limitations on the legislative competency conferred on Parliament and whether the doctrine of eclipse was applicable only to pre-Constitution laws or those which fell under Article 13(2) of the Constitution. 20. The Seventeenth Amendment Act, 1964 came up for consideration in the case of Sajjan Singh v. State of Rajasthan [1965]1SCR933 Among the points there canvassed in support of the petitions under Article 32 of the Constitution was one based on the plea that the Seventeenth Amendment was a legislative measure in respect of land and since. Parliament had no right to make a law in respect of a land, the Act was invalid; and since the Act purported to set aside decisions of court of competent jurisdiction it was unconstitutional. Although the Court upheld the validity of the amendment, a doubt was expressed by Mudholkar, J. as to whether Parliament could validate a State law dealing with land. According to the learned Judge only that legislature has power to validate a law which has a power to enact the law. 21. On behalf of some of the respondents and the interven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot protect from challenge on the ground of violation of fundamental rights the provisions of the Acts amending Agricultural Lands (Ceiling on Holdings) Act, 1961 as originally enacted and that the Seventeenth Amendment Act in spite 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 does protect the impugned Act from challenge on the around of violation of fundamental rights. There is no doubt that Art-31-B should be interpreted strictly. But even interpreting it strictly, the only requirement which is laid down by Article 31B is that the Act should be specified in the Ninth Schedule. 24. Section 28 of the Act which was the main target of attack and which the High Court had originally found as violating Article 14 of the Constitution was held to be protected under Article 31B from the ground of attack based on infringement of Article 14. 25. In Bhikaji Narain Dhakras Ors. v. The State of Madhya Pradesh and Anr. [1955]2SCR589 , the petitioners who carried on their business as stage carriages operators of Madhya Pradesh for a number of years challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.... It is true that as the amended Clause (6) (of Article 19) was not made retrospective the impugned Act could have no operation as against citizens between the 26th January 1950 and the 18th June 1951 and no rights and obligations could be founded on the provisions of the impugned Act during the said period 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 immediately became fully operative even against citizens. 27. In M. P. V. Sundararmier Co. v. The State of Andhra Pradesh [1958]1SCR1422 . Venkatarama Aiyar J. speaking for the majority of the Court discussed at some length the different aspects of the unconstitutionality of a statute. Speaking for the Court he said (at p. 1468). In a Federal Constitution where legislative powers are distributed between different bodies, the competence of the legislature to enact a particular law must depend upon whether the topic of that legislation has been assigned by the Constitution Act to that legislature. Thus, a law of the State of an Entry in List I, Schedule VII of the Constitution would be wholly i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluded the U.P. Act in the Ninth Schedule as item 15. The State of U.P. contented that the inclusion of this Act in the Ninth Schedule protected it under Article 31B of the Constitution from any challenge under Section 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 unconstitutional. Relying on the decision of this Court in Saghir Ahmad v. The State of U.P. (supra) it was said that the provisions of the Act have been specifically saved from any attack on their Constitutionality as a consequence of Article 31B read with the Ninth Schedule, the effect of which is that the Act cannot be deemed to be void or ever to have become void on the ground of its being hit by the operation of the Government of India Act. 30. It has to be noted that 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 Amendment Act infringed Article 13(2) of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of Part III of the Constitution and therefore the objection that the Madras Ceilings Act should have been re-enacted by the Madras Legislature after the Seventeenth Constitutional Amendment came into force cannot be accepted. 35. On the other point as to the competency of the State legislature, Mr. Vedantachari drew our attention in particular to the following provisions in the Act: 5.(1) (a) Subject to the provisions of Chapter VIII, the ceiling area in the case of every 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 ceiling 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 family in excess of five. (2) For the purposes of this section, all the lands held individually by the members of a 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 calcul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 206-221, where it was held that the husband could not, consistently with the due process and equal protection clauses of the 14th Amendment, be taxed by a State on the combined total of his and his wife's Income as shown by separate returns, whether her 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. 38. Counsel also referred us to the decision in Balaji v. Income Tax Officer [1961]43ITR393(SC) and the contention there put forward that Entry 54 in the Federal Legislative List of the Government of India Act, 1935 did not confer en the legislature any power to tax (a) on the income of B and therefore Sub-section (3) of Section 16 of the Income-tax Act, 1922 was ultra vires the legislature. 39. 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 a narrower basis although the Court approved of the view expressed in Sardar Baldev Singh v. Commissioner of Income-tax 40 I.T. R.560, that Entry 54 should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over them. If the State wants to enforce a measure of acquiring lands of people who hold areas over a 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 in Article 39(b) and (c) of the Constitution, it is not possible to say that the same would be outside the scope of Entry 18 in List II read with Entry 42 in List III. Such a measure can aptly be described as a measure of agrarian reform or land improvement in that persons who have 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 held large blocks of land and are only interested in getting a return without much effort. 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 lands in excess of the ceiling imposed are compensated for the lands acquired by the State and distributed among others. Acquisition of land would not directly be covered by Entry 18 but read with Entry 42 in List III the State has the competence to acquire surplus la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and-owners the lands held by them and thus themselves become the 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 Entry 18 in List II were sufficiently comprehensive to include measures of land-tenure reforms, such as the impugned Act sought to achieve. 45. The validity of the Assam Fixation of Ceiling on Land Holdings Act I of 1957 came up for consideration in Sonapur Tea Co. Ltd. v. Must. Mazirunnessa (1962) 1 S.C.R. 24. Section 4 of the Act prescribed a ceiling on existing holdings and Section 5 empowered the appropriate authorities to call for submission of returns by persons holding lands in excess of the ceiling. Section 8 empowered the State Government to acquire such excess lands by publishing in the official gazette a notification to the effect that such lands were required for public purpose and such publication was to be conclusive evidence of the notice of acquisition to the person or persons holding such lands. It was contended on behalf of the appellants there that the pith and substance of the Act and its, main object was to acquire the property and dispose of it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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