Appeals Nos 235 and 236 of 1960
Appeals from the judgment and decree dated January 23 1959 of the Assam High Court at Gauhati in Civil Rules Nos 138 and 139 of 1958
N C Chatterjee Amjad Ali and K R Chaudhari for the appellant in C A No 235 of 1960
D N Mukherjee for the appellant In C A No 236 of 1960
section M Lahiri Advocate General Assam and Naunit Lal for the respondents
April 4
The Judgment of the Court was delivered by GAJENDRAGADKAR J
These two appeals arise out of two writ petitions Nos 138 and 139 of 1958 filed respectively by the two appellants Sonapur Tea Co Ltd of 15 D Sambhunath Pandi Street Calcutta 9 and Musst
Mazirunnessa wife of Abdul Gafur of Village Bhoknamari District Kamrup in which they challenged the validity of the Assam Fixation of Ceiling on Land Holdings Act I of 1957 hereafter called the Act
The said writ petitions have been dismissed by the Assam High Court substantially on ground that since the impugned Act falls within the protection of article 31A the challenge made by the two appellants to the several provisions of the Act under articles 14 191f and 312 cannot be entertained Having dismissed the writ petitions principally on this ground the High Court granted certificates to both the appellants to come to this Court in appeal 726 and so it is with the said certificates that the two appeals have been brought to this Court
It is not necessary to set out the material facts leading to the two writ petitions in any detail
It would be enough to say that under section 5 of the impugned Act notices had been served on both the appellants by the respondent Deputy Commissioner and Collector of Kamrup calling upon them to submit a return giving the particulars of all their lands in the prescribed form and stating therein the selection of plot or plots of land not exceeding in the aggregate the limits fixed under section 4 which they desired to retain under the provisions of the Act
The appellants contended before the High Court that the impugned Act under which this notice had been served on them was invalid and ultra vires and so they wanted the notice issued under section 5 to be quashed
That is the only relevant fact which needs to be stated for deciding the present appeals
The Act received the assent of the President on December 7 1956 and was published in the official State Gazette on January 16 1957
Subsequently it was amended by the amending Act XVII of 1957 and assent was obtained to the amendment thus made on November 8 1957
By a notification issued by the State Government on February 71958 the amended Act came into force on February 15 1958
It is relevant to consider briefly the broad features of the Act
It has been passed because the Legislature deemed it necessary to make provision for the imposition of limits on the amount of land that may be held by a person in order to bring about an equitable distribution of land
That being the object of the Act the principal provision of the Act imposes a ceiling on existing holding by s4
The act extends to the seven Districts specified in section 12 and from its operation are excepted the lands specified in cls
a to c of s2
These clauses refer to lands belonging to any religious or charitable institution of a public nature lands held for special cultivation of tea or purposes ancillary thereto and lands exceeding 150 bighas utilised for large scale cultivation of citrus in a compact block by any person before January 1 1955 lands 727 utilised by efficiently managed farms on which heavy investments or permanent structural improvements have been made and whose break up is likely to lead to a fall in production and lands held by a sugar factory or a co operative farming society for cultivation of sugarcane for the purpose of such factory
It would thus be noticed that the measure of agrarian reform introduced by the Act has made exceptions in regard to lands which it thought should be left out of the operation of the Act in the interest of the economy of the State
Section 3 is the definition section
It defines land as meaning land which is or may be utilised for agricultural purposes or purposes subservient thereto and includes the sites of buildings appurtenant to such land
Under section 3g the word landholder  has the meaning assigned to it in the Assam Land and Revenue Regulation 1886 Regulation I of 1886
Landlord  under section 3h is a person immediately under whom a tenant holds but does not include the Government and owner  under section 3i includes proprietor land holder or settlement holder as defined in section 3 of the Assam land and Revenue Regulation I of 1886 but it does not include Government
Section 3o defines tenant  as meaning a person who holds land under another person and is but for a special contract would be liable to pay rent for that land to the other person and includes a person who cultivates the land of another person on condition of delivering a share of the produce
These are the only definitions which are relevant for our purpose
Section 4 which is the key section of the Act prescribes ceiling on existing holding
The limit prescribed is 150 bighas in the aggregate subject to its provisos
Section 5 empowers the appropriate authorities to call for submission of returns by persons holding lands in excess of the ceiling
Section 8 empowers the State Government to acquire such excess lands by publishing in the official gazette a notification to the effect that such lands are required for public purpose and such publication shall be conclusive evidence of the notice of acquisition to the person or persons holding such lands
Acquisition of excess lands prescribed by section 8 is followed by the vesting of the said 728 lands in the State under section 9
On publication of the notification under section 8 all such excess lands shall stand transferred to the State Government from the date of the publication of the said notification free from encumbrances by their original owner or owners
Under section 11 the Collector is authorised to take possession of the said lands
Section 12 prescribes the principles of compensation
and provides the manner in which the said compensation should be apportioned between the owner and the tenant and s13 provides for the manner of payment of such compensation
Under section 14 ad interim payment of compensation can be made as specified
These are the relevant provisions in Chapter 11 which deals with ceiling on existing holding and acquisition of excess land
Chapter III deals with the disposal of excess land
Under section 16l if there is any cultivating tenant in occupation of the land acquired from an owner then he shall have the option of taking settlement of such land within a prescribed period on the following conditions namely a that the area of land so settled together with any other lands held by him or any member of his family either as tenant or as owner shall not exceed in the aggregate the limit fixed under section 4 and b that he shall pay to the State Government in one or more equal annual installments not exceeding five an amount fixed by it but not exceeding the compensation payable by the State Government for acquisition thereof provided that he shall have the right to adjust any amount which he is entitled to receive as compensation under the provisions of the Act against an equal amount which he is liable to pay under el
Section 162 provides that on payment of full amount under sub section 1 above the land shall be settled with a tenant with the status of a landholder
Under section 18 it is provided that if a tenant in occupation of any land acquired under section 8 does not take settlement of such land he shall acquire no right title and interest in the land and shall be liable to be ejected
Chapter IV deals with excess land under annual lease and provides for its taking over
Chapter V puts a ceiling on future 729 acquisition and chapter VI provides for ceiling for resumption of land from tenants for personal cultivation by the landlord
Chapter VII provides for the establishment of a Land Reform Board and lays down its functionswhile chapter VII contains miscellaneous provisions
That briefly is the scheme of the Act
The question which arises for our decision is whether this Act is protected under article 31A of the Constitution
This Article has been construed by this Court on several occasions in dealing with legislative measures of agrarian reforms
The object of such reforms generally is to abolish the intermediaries between the State and the cultivator and to help the actual cultivator by giving him the status of direct relationship between himself and the State
Article 31Ala provides that notwithstanding anything contained in article 13 no law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by article 14 article 19 or article 31 provided that where such law is a law made by the Legislature of a State the provisions of this Article shall not apply thereto unless such law having been reserved for the consideration of the President has received his assent
We have already seen that the assent of the President has been obtained both for the Act as it was originally passed and for the amending Act which subsequently modified some of the provisions of the original Act and so the requirement prescribed by the proviso to article 31Ala is satisfied
That raises the question as to whether the rights of the appellants which are undoubtedly taken away or abridged constitute rights in relation to an estate as defined by article 31A2b
We have already seen the definitions of land landholder landlord and tenant prescribed by section 3fgh and o
It is common ground that the lands sought to be acquired fall within an estate as defined by article 31 A2
Do the rights vesting in the appellants amount 92 730 to rights in relation to an estate For deciding this question it would be necessary to consider the provisions of the existing law relating to tenure in force in Assam at the relevant time
The existing law relating to land tenure is to be found in the provisions of the a Assam Land and Revenue Regulation 1886 Regulation I of 1886
Section 3g of the said Regulation provides that a landholder  means any person deemed to have acquired the status of a landholder under section 8
No hen we turn to section 8 we find that it provides the manner in which the status of a landholder can be acquired and section 9 provides for the rights of such landholders
Under section 9 a landholder shall have a permanent heritable and transferable right of use and occupancy in is land subject to the payment of revenue taxes cesses and rates from time to time legally assessed or imposed in respect of the land
The remaining two clauses of this section need not be considered
It would be noticed that the expression rights in relation to an estate is of a very wide amplitude and as such the context requires that it must receive a very liberal interpretation
Thus considered there can be no doubt that the rights of the appellants which have been extinguished undoubtedly constitute rights in relation to an estate as defined by article 31A 2 b
Indeed this position is not seriously disputed by Mr Chatterjee who fairly conceded that having regard to the decisions of this Court in Thakur Raghubir Singh vs The State of Ajmer Now Rajasthan 1 Sri Ram Ram Narain Medhi vs The State of Bombay  and Atma Ram vs The State of Punjab 3  he would not be able to contend that the view taken by the High Court is erroneous
Faced with this difficulty Mr Chatterjee attempted to argue that the Act is a colorable piece of legislation and should be struck down as such
His argument is that though ostensibly it purports to be a measure of agrarian reform its principal object and indeed its pith and substance is to acquire the property covered by its provisions and make profit by disposing of the 1 1959 Supp 1 SCR 478
2 1959 Supp 1 SCR 489
3 1959 Supp 1 SCR 748 731 same in the manner provided by Chapter III
Mr Chatterjee seemed to suggest that the Legislature should not have made it necessary for the tenants to exercise an option for taking settlement under section 16 because the exercise of the said option involves the liability to pay the prescribed amount though in five installments and that according to Mr Chatterjee indicates that the State wanted to make profit out of the bargain
Mr Chatterjee s grievance is against the provisions of section 18 also under which a tenant who does not opt for settlement is liable to be evicted
We are not impressed by this argument
The doctrine of colorable legislation really postulates that legislation attempts to do indirectly what it cannot do directly
In other words though the letter of the law is within the limits of the powers of the Legislature in substance the law has transgressed those powers and by doing so it has taken the precaution of concealing its real purpose under the cover of apparently legitimate and reasonable provisions Vide K G Gajapati Narayan Deo vs The State of Orissa This position is not and can not be disputed
Is Mr Chatterjee however right when he contends that the pith and substance of the Act and indeed its main object is to acquire property and dispose of it at a profit That is the question which calls for our decision
In our opinion the answer to this question must obviously be against the appellants
The whole object of the Act which is writ large in all its provisions is to abolish the intermediaries and leave the lands either with the tiller or the cultivator
With that object ceiling has been prescribed by section 4 provisions have been made for the acquisition of excess
lands and disposal of excess lands in favour of the tenants have been provided for
It is significant that in settling the lands upon the tenants it is expressly provided that the payment which the tenant may have to make and that too in one or more easy installments not exceeding five will never exceed the compensation payable by the State Government for acquisition 1  732 thereof
This provision clearly negatives the assumption made by Mr Chatterjee that any profit is intended to be made in the matter of disposal of excess lands
The State is paying compensation to the persons dispossessed under the principles prescribed by section 12 amongst the persons entitled to such compensation tenants are included and when the State proceeds to settle lands on tenants it expects them to pay a fair amount of price for the land and puts a ceiling on this price that it shall never exceed the amount of compensation payable in respect of the Paid land
In our opinion this provision is very fair and reasonable and it would be idle to attack it as a piece of colorable legislation
We have already seen that the settlement of land on the tenants would make them landholders and that is the basic idea of the Act
If a tenant does not agree to take settlement it cannot be helped and so the land would then have to be taken from him and given over to somebody else who would be prepared to take settlement
It is thus clear that the object of putting ceiling on existing holding is to take over excess lands and settle them on actual cultivators Or tenants and that is the essential feature of agrarian reform undertaken by several States in the country
The Act conforms to the pattern usually followed in that behalf and the attack against its validity on the around that it is a colorable piece of legislation must therefore fail
In the result we hold that there is no substance in the two appeals
They are accordingly dismissed with costs one set of hearing
Appeals dismissed


Summary:
The Essential Supplies Temporary Powers Act 1946 a temporary Act which was being extended from time to time after the date of its first expiry for a year at a time was extended up to the 31st March 1951 from the 31st March 1950 by a resolution passed by the Constituent Assembly Legislative at a meeting held on the 20th December 1949
The appellant who was convicted for an offence committed under the Act on the 24th October 1950 contended that the Constituent Assembly had no power to extend the Act in view of the provisions of article 379 1 of the Constitution and that at any rate it had no power to extend the duration of the Act beyond the 26th January 1950 645 Held that even assuming that under article 379 1 the Provi sional Parliament was intended to function from the 26th November 1949 and not from the 26th
January 1950 as the Constituent Assembly was to continue in existence till the 26th January 1950 the power conferred on it as a designated body by the India Central Government and Legislature Act 1946 of the British Parliament as adapted by the India Provisional Constitution Order 1947 could be validly exercised on the 20th December 1949 and was so exercised when it passed the resolution on that date
The Provisional Parliament was not a body authorised to exercise the special power of approving the extension of the period mentioned in section 4 of the India Act of 1946 as that was not one of the powers conferred by the Constitution on the Provisional Parliament nor can bringing the Provisional Parliament into existence on the 26th November 1949 assuming that to be the case be regarded as  other provision  made by the Constituent Assembly within the meaning of section 4 of the India Act of 1946
Held further that the resolution extending the life of the Act beyond the 26th of January 1950 was not invalid as it came into immediate effect and not on the 1st of April 1950 when the previous extension expired
Accordingly the Act with its duration extended by virtue of the resolution was an Act immediately in force before the commencement of the Constitution anti so was saved by article 372 1 and Explanation III