Appeals Nos
1017 to 1027 1029 to 1032 1034 to 1037 1901 to 1906 and 854 of 1968
Appeals from the judgment and order dated January 30 1967 of the Orissa High Court in OJCs
329 of 1965 etc
C B Agarwala end R N Sachthey for the appellant in all the appeals H R Gokhale Santosh Chatterjee and G section Chatterjee for the respondents in all the appeals
The Judgment of the Court was delivered by Shah J
The State of Orissa has appealed to this Court against the judgment of the State High Court declaring unconstitutional and invalid Chapter IV of the Orissa Land Reforms Amendment Act 15 of 1965
The Orissa Land Reforms Act 16 of 1960 hereinafter called the principal Act received the assent of the President on October 17 1960
By section 13 of the principal Act it was provided that the Act shall come into force in whole or in part on such or date or dates as the Government may from time to time by notification appoint and different dates may be appointed for different provisions of the Act
By a notification issued on September 25 1968 certain provisions of the principal Act other than those contained in Chs
III and IV were brought into force
By a notification dated December 91965 Ch
III sections 24 to 37 dealing with resumption for personal cultivation of any land held by a tenant and related matters was brought into force
But Ch
IV sections 38 to 52 dealing with ceiling of holdings of land and disposal of excess land was not brought into operation
The Legislature of the State of Orissa amended the principal Act by Act 13 of 1965
By Act 13 of 1965 amendments were made in the principal Acts  the expressions ceiling area and privileged raiyat were defined by clauses 5  24 of section 24 and the expression classes of land was defined in section 25 a
The original Chs
III and IV of the principal Act were deleted and were substituted by fresh provisions
Nothing need be said about the amendments made in Ch
III because in these groups of appeals the validity of these provisions is not in issue
It may suffice to say that Ch
III sections 24 to 36 as amended 595 deals with the right of the landlord to resume land for personal cultivation the extent of that right and the proceedings for resumption of land
Chapter IV as amended deals with ceilings and disposal of excess land
By section 37 it is provided  1 No person shall hold after the commencement of this Act lands as landholder or raiyat under personal cultivation in excess of the ceiling area determined in the manner hereinafter provided
By section 3 8 the Government is authorised to grant exemption from the operation of the ceiling in respect of certain classes of land Section 39 deals with the principles for determining the ceiling area
Sections 40 41  42 deaf with the filing of returns in respect of lands in excess of the ceiling area on the date of commencement of the Act and the consequences of failure to submit the return  Section 43 provides for the preparation and publication of draft statements showing ceiling and surplus lands by the Revenue Officer and section 44 provides for the publication of the final statement of ceiling and surplus lands after hearing objections if any received and after making enquiries as the Revenue Officer may deem necessary
Section 45 provides that  With effect from the beginning of the year next following the date of the final statement referred to in sub section 3 of section 44 the interests of the person to whom the surplus lands relate and of all landholders mediately or immediately under whom the surplus lands were being held shall stand extinguished and the said lands shall vest absolutely in the Government free from all encumbrances
Section 46 provides for determination of compensation
Section 47 sets out the principles for determining compensation
It provides that the compensation in respect of the interest of the land holders mediately or immediately under whom the surplus lands are being held as a landholder or raiyat shall be fifteen times the fair and equitable rent
It also provides for payment of in market value of tanks wells and of structures of a permanent nature situate in the land determined on the basis of fair rent in the manner prescribed therein
Sections 48 and 49 deals with the preparation and publication of draft compensation assessment roll and the final compensation assessment roll
By section 51 provision was made for settlement of surplus lands vested in the Government under section 45 with persons as raiyats in the order of priority mentioned therein and section 52 imposes a ceiling on future acquisitions
It is provided thereby 5 96 The foregoing provisions of this Chapter shall A mutatis mutandis apply where lands acquired and held under personal cultivation subsequent to the commencement of this Act by any person through inheritance request gift family settlement purchase lease or otherwise together with the lands in his personalcultivation at the time of such acquisition exceeds his ceiling limit
By the amendment made in the Constitution by the 17th Amendment Act the principal Act is incorporated in the Ninth Schedule to the Constitution with effect from june 20 1964
The Act is therfore not liable to be attacked on the plea that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by Part III Constitution
But the power to repeal or amend the Act incorporated in the Ninth Schedule is not thereby taken away
the enactment of the of the of the competent Legislature to amending Act passed after the Seventeenth Amendment Act 1964 does not therefore qualify for the protection of article 31 B See Ramanlal Gulabchand Shah etc
vs etc
vs State of Gujarat  Ors1 Sri Ram Ram Narain Medhi vs The State of Bombay2 This position is not disputed
Chapter IV in the principal Act by orissa Act 13 of 1965 when brought into force is liable to be challenged the ground that it is inconsistent with or takes away orabridges any of the fundamental rights conferred by Part III of the Constitution It was urged however and that plea has found favour with the High Court that section 47 incorporated by Act 13 of 1965 which provided for compensation not based on the market value of the land but at fifteen times the fair and equitable rent is in consistent with article 3 1 A proviso 2 and is on that account viod
To appreciate the contention the constitutional provisions relating to protection guaranteed by the Constitution against compulsory acquisition of property may be noticed
By Ar
312 as amended by the Constitution Fourth Amendment Act 1955 insofar as it is material it is provided  No property shall be compulsory acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which and the manner in which the compen 11969 1 SCR 42
21959 Supp
1 SCR 489 597 sation is to be determined and given Clause 2A of article 31 which in substance defines the expression law providing for compulsory acquisition enacts that Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State it shall not be deemed to provide for the compulsory acquisition or requisitioning of property notwithstanding that it deprives any person of his property By article 312 read with article 312A property may be compul sorily acquired only for a public purpose and by authority of a law which provides for compensation for the property so acquired and either fixes the amount of the compensation or specifies the principles on which and the manner in which the compensation is to be determined and given
In order that property may be validly acquired compulsorily the law must provide for the transfer of ownership or right to possession of any property to the State or to a corporation owned or controlled by the State
By virtue of section 45 of the principal Act the interests of person to whom the surplus lands relate and of all land holders mediately or immediately under whom the surplus lands were being held  stand extinguished and the lands
 vest absolutey in the Government free from all encumbrances
 This is clearly compulsory acquisition of land within the meaning of article 312 of the Constitution and the compensation determined merely at fifteen times the fair and equitable rent may not prima facie be regarded as determination of compensation according to the principles specified by the Act
But article 31A which applies to the statute in question provides by the first clause Notwithstanding anything contained in Article 13 no law providing for athe acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights or b c d e shall be deemed to be void on the ground that it is tent with or takes away or abridges any of the ferred by article 14 article 19 or article 31 598 The principal Act 16 of 1960 and the amending Act 13 of 1965 were both Acts enacted for ensuring agrarian reform and the lands held by the petitioners were estates within the meaning of article 31 A
By section 45 the rights of the land holders were sought to be extinguished or modified
But to the operative part of article 31 A by section 2 of the Constitution Seventeenth Amendment Act 1964 the second proviso was added
The second proviso enacts  Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto unless the law relating to the acquisition of such land building or structure provides for payment of compensation at a rate which hall not be less than the market value thereof By the Constitution Seventeenth Amendment Act 1964 it was clearly enacted that under any law which provides for the acquisition of any land in an estate under the personal cultivation of the holder compensation shall not be less than the market value of the land if such land be within the ceiling limit applicable to the holder under any law for the time being in force
Before the High Court it was urged on behalf of the landholders that when the principal Act was enacted it became law in force and the ceiling limit prescribed thereby became effective even though Ch
IV was not extended by a notification under section 13 of the Act and since the subsequent legislation seeks to restrict the ceiling limit and to vest the surplus land in the Government under section 45 as amended there is compulsory acquisition of land which may be laid only if the law provides for payment to the landholder for extinction of his interest the market value of that part of the surplus land which is within the ceiling limit under the principal Act
This argument found favour with the High Court
In their view the expression law in force must be construed only in the constitutional sense and not in the sense of its actual operativeness and on that account it must be held that there was a ceiling limit already provided by the principal Act as it was law in force  within the meaning of that expression as used in the second proviso to article 31 A
They proceeded then to hold that section 47 of the Act as amended provided for payment of compensation at a rate which is less than the market value of the land falling within the ceiling limit as originally fixed under of 1960 and the guarantee of the second proviso to article 31 A of the Constitution is on that account infringed
We are unable to accept this process of reasoning
The right to compensation which is not less than the market value under any law providing for the acquisition by the State of any land in an estate in the personal cultivation of a person is guaranteed by the second Proviso only where the land is within the ceiling limit applicable to him under any law for the time being in force
A law cannot be said to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by a delegate empowered to bring it into operation
The theory of a statue being in operation in a constitutional sense though it is not in fact in operation has in our judgment no validity
Again Ch
IV of the principal Act was repealed by the Amending Act 15 of 1965
Article 31 A proviso 2 guarantees to a person for compulsory acquisition of his land the right to comPensation which is not less than the market value when the land is within the ceiling limit applicable to him under a law for the time being in force
On the plain words of the proviso the law prescribing the ceiling limit must be in force at the date of acquisition
In the present case the law relating to the ceiling limit viz
IV of the principal Act was never made operative by a notification and was repealed by Act 15 of 1965
The ceiling limit under section 47 of the principal Act was on that account inapplicable to the landholders who challenged the validity of section 45 of the amending Act
The decision of this Court A Thangal Kunju Mudaliar vs M Venkatachalam Potti and Anr
1 on which the High Court relied lends no support to the views expressed by them
In that case the Travancore State Legislature enacted Act 14 of 1124 ME to provide for investigating cases of evasion of tax
The Act was to come into force by section 13 on the date appointed by the State Government by notification
The States of Travancore and Cochin merged on July 1 1949 and formed the United State of Travancore and Cochin
By Ordinance I of 1124 ME all existing laws of the Travancore State were to continue in force in the United State
By a notification the Government of the United State brought the Travancore Act 14 of 1124 ME into force and referred cases of certain tax payers for investigation to the Commission appointed in that behalf
The tax payers challenged the authority of the Commission to investigate the cases
They contended that the Travancore Act 14 of 1124 ME not being a law in force when the United State was formed the notification bringing the Act into force was ineffective
The Court rejected that plea
Section 13 of Travancore Act 14 of 1123 ME was 1  L14 Sup
CI69 9 600 existing law on July 1 1949 and continued to remain in force by virtue of Ordinance 1 of 1124 ME
The notification issued in exercise of the power under section 13 of the Travancore Act 14 of 1124 ME the reference of the cases of the petitioners the appointment of the authorised officials and the proceedings under the Act could not be questioned because section 13 was existing law on July 1 1949
In A Thangal Kunju Mudaliar case1 the contention that Travancore Act 14 of 1124 ME was not law in force until a notification was issued bringing into operation the provisions of the Act authorising the appointment of a Commission and referring the cases of tax payers to the Commission was rejected
The Court held that section 13 was in operation on July 1 1949 and the power to bring into force the provisions of the Travancore Act was exercisable by the successor State
It was not held that the other provisions of the Act were in force even before an ap propriate notification was issued
In the case in hand section 13 of the principal Act was in force but Ch
IV of the Act was not brought into force
The argument that provisions of the Act which by a notification could have been but were not brought into force must still be deemed to be law in force derives no support from the case relied upon
Section 13 of Act 16 of 1960 is undoubtedly a law in force but until the power is exercised by the State Government to issue an appropriate notification the provisions of Ch
IV could not be deemed to be law in force and since no notification was issued before Ch
IV of the principal Act was repealed there was no ceiling limit applicable to the landholders under any law for the time being in force which attracted the application of the second proviso to article 31 A
The appeals must therefore be allowed and the order pass ed by the High Court declaring Ch
IV of Act 13 of 1965 amending Act 16 of 1960 ultra vires be set aside
The State will get its costs in this Court from the respondents
There will be one hearing fee
There will be no order as to costs in the High Court
RKPS 1  Appeals allowed


Summary:
The Constitution of India article 31 A proviso 2 guarantees to a person for compulsory acquisition of his land the right to compensation which is not less than the market value when the land is within the ceiling limit applicable to him under a law for the time being in force
Section 13 of the Orissa Land Reforms Act 1960 provided that the Act was to come into force in whole or in part on such dates as the Government may from time to time by notification appoint
Certain provisions of the Act were brought into force by notifications
But Chapter IV of the Act dealing with ceiling of holdings of land was not brought into force
The Act was amended by Act 13 of 1965
The amending Act deleted Chapter IV and substituted fresh provisions
Chapter IV as amended dealt with ceiling and disposal of excess land and provided for compensation at fifteen times the fair and equitable rent
In the High Court the respondent land holders urged that when Act 16 of 1960 was enacted it became law in force and the ceiling limit prescribed thereby became effective even though Chapter IV was not brought into force by notification under section 13 of the Act that since the Amending Act 15 of 1965 sought to restrict the ceiling limit and to vest the surplus land in the government there was compulsory acquisition of land which could be valid only if the law provided for payment to the land holder the market value of that part of the surplus land which was within the ceiling limit under Act 16 of 1960
The High Court accepted the contention and struck down Chapter IV of the Act as unconstitutional and invalid
It was of the view relying on this Court s decision in Thangal Kunju Mudaliar s case that the expression law in force  had to be construed only in the constitutional sense and not in the sense of its actual operativeness In appeal by the State HELD  Allowing the appeal  A law cannot be said to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by a delegate empowered to bring it into operation
The theory of a statute being  operation in a constitutional sense has no validity
The decision of this Court in Thangal Kunju Mudaliar ends no support to the view expresse by the High Court
There this Court held that section 13 of Travancor Act 14 of II 24 ME was an existing law on the date of the merge of the States of Travancore and Cochin and the power to bring into fore the provisions of the Travancore Act was exercisable by the successor State It was not held that the other provisions of the Act were in force eve before an appropriate notification was issued
599 B C 600 C D 594 In the present case the law relating to the ceiling limit viz Chapter IV of Act 16 of 1960 was never operative by a notification and was repealed by Act 15 of 1965
Therefore there was no ceiling limit applicable to the land holders under any law for the time being in force which attracted the application of the second proviso to article 3 1 A 600 E Thangal Kunju Mudaliar vs M Venkitachalam Potti   explained