Case: Mohd. Shaukat Hussain Khan Vs. State of Andhra Pradesh

2. 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 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 Jurvaguda village. The appellant enjoyed all the rights granted to him under the respective mumtakabs 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 1355F 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 tight of selling Sendhi or tree tax, Haque Malikana and licence fee in respect of which Government was making annual payments till July 19, 1955 when on the abolition of the inams under the Hyderabad Inams Abolition Act 8 of 1955 (hereinafter referred to as the Abolition Act) the inams granted to the appellant became vested in the Government. Thereafter the Government discontinued payment of Baithak of Sendhi shops and tree tax under the wrong impression that Hyderabad Abolition Act prohibited any such payment. On April 20, 1956 the Abolition Act was amended by Act 10 of 1956 whereby the provisions relating to payment of compensation were superseded while those relating to vesting continued in force. The Government therefore issued a circular to the effect that all amounts collected as land revenue from the erstwhile inam lands including the inam lands of the appellant were to be kept in a suspense account. From December 5, 1957 the Sendhi rights in Sardarnagar lands i.a. Haque Malikana, licence fee were recognised, by the Government of Andhra Pradesh in G. O. 2254. It may be mentioned that the provisions of the Act relating to compensation were to come into force on and from a notified date so much so that even after more than three years of the Abolition Act no notification as provided under sub-sec. (3) (b) of Section 1 was published to bring into effect the provisions relating to compensation.

Court's reasoning:
e entire case of the appellant, therefore, rests on two short submissions, namely, (1) that the striking down of Act 9 of 1967 by the High Court of Andhra Pradesh against which there has been no appeal to this Court and the withdrawal of writ petition No. 78 of 1969 filed in this Court would not receive the Abolition Act, and if they are revived, the abkari rights which are not a part of the inam rights are not touched by the provisions of the Act. Alternatively, even if the provisions of the revived Acts deal with such rights, though these rights are separate rights, compensation ought to have been provided for separately and since this has not been done the law is violative of Article 31 (2) of thethe first question Section 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 Samsthan or other competent grantor 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 such in the village records and includes - (1) arasi makhta, arasi agrahar and sari inam; and (ii) lands held as inam by virtue of long possession and entered as inam in the village records. "Inamdar" under Section 2(1) (d) of the Abolition Act means a person holding an inam or a share therein, either for his own benefit or in trust and includes the successor-in-interest of an inamdar etc. Under sub-section (2) of Section 2 words and expressions used in this Act (Abolition Act 8 of 1955) but not defined therein shall have the meaning assigned to them in the Land Revenue Act, 1317, Fasli, the Hyderabad Tenancy and Agricultural Lands Act, 1950, and the Hyderabad Atiyat Enquiries Act, 1952 and the rules thereunder. The provisions whereunder the inam has been abolished in so far as they are relevant in this case, are sub-section (1) of Sections 3 which provides that notwithstanding anything to the contrary contained in any usge, settlement, contract, grant, sanad, order or other instrument, Act, regulation, rules or order having the force of law and notwithstanding any judgment, decree or order of a Civil, Revenue or Atiyat Court, and with effect from the date of vesting, all inams to which this Act is made applicable under sub-section (2) of Section 1 of this Act shall be deemed to have been abolished and shall vest in the State.Section 2 (1-b) of the Andhra Pradesh Land Revenue Act 8 of 1317 fasli defines land as including all kinds of benefits pertaining to land, or things attached to the earth, or permanently fastened to things attached to the earth and also includes shares in, or charges on, the revenue or rent which are or may be levied on villages, or other defined areas.14.A combined reading of the provisions of the Abolition Act with the Andhra Pradesh Land Revenue Act shows that the Legislature had by abolishing inams intended to abolish all rights vested in the inam lands which had been granted to the inamdar.The right to tap or derive benefit from trees standing on the lands is a right appurtenant to the lands because a thing attached to the land is itself a part of the land and is immovable property. Haque Malkana which is the right in trees is therefore a right appurtenant to the land so that when any inam land vests in the Government the right to tap tress standing on the land also vests in the Government. There cannot be any separation of these rights when the tree is still part of the land. There can be no doubt that no publication of the notification under sub-section (1) of Section 3 of the Abolition Act all inams were abolished and vested in the State. The inams which were so abolished and vested in the State include in it all rights, title and interest in the inams by virtue of Clause (b) of sub-section (2) of Section 3 of the Abolition Act. Such rights as are intended to be 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 tress. This conclusion of ours is supported by the definition land in Section 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 or benefits accruing from the land or things attached to the land and will also include shares in the charges on the revenue or rent.We have noticed already that the inam granted to the appellant under the Muntakhab is with "all sources of income" i.e. Ba-Hama-Abwab which rights are not granted independently of the Maktha or inam land but are granted as part of the inam land so that when inam land vests, the rights which the inamdar had in the land including Hama Abwab i.e. Abkari rights also vest in the State. On this conclusion it is clear the the Abkari rights being part of the inam and having vested in the State, the compensation that is payable under Section 12 of the Abolition Act is inclusive of the Abkari rights. As the abolition of inams is a legislation intended to give effect to agrarian reforms by making the land available to persons who have no lands, compensation provided for under S. 12 cannot be challenged. The scheme of compensation under the Abolition Act is that four and a half times the family holding is to be retained by the inamdar and in respect of the rest of it a patta is given to the tenants which even with respect to them, along with any lands they own and cultivate personally, be equal to four and a half times the family holding. If after providing for these two items there remains any balance left the Government is required to pay compensation whether to the inamdar or to the tenants who have excess of land in theirthese submissions, as has been noticed already, were rejected by both the Courts. It may however be mentioned that when the appeal against the judgment of the High Court of Andhra Pradesh was pending in this Court, the Andhra Pradesh Legislature passed the Andhra Pradesh (Telangana Area) Abolition of Inams Act 9 of 1967 repealing the earlier Abolition Act 8 of 1955 as amended by Act 10 of 1956 and vesting all the inams in the Government from July 20, 1955. A writ petition (W. P. No. 78 of 1969) was filed in this Court challenging the validity of Act 9 of 1967. During the pendency of these proceedings in this Court, several writ petitions were also filed in the High Court of Andhra Pradesh challenging the validity of Act 9 of 1967. That Court by its judgment dated March 31, 1970 held all the provisions of Act 9 of 1967 to be invalid and accordingly struck down the entire Act. The state however did not appeal against the said judgment. It may also be mentioned that the State of Andhra Pradesh published a notification on October 20, 1973 under Section 1(3)(b) of the Abolition Act by which all the provisions of that Act and in particular the sections relating to compensation, namely, Sections 12, 13, 14 and 16 were enforced from November 1, 1973. It is stated before us that in view of this position, the appellant withdrew his writ petition No. 78 of 1969 which was dismissed as infructuous so that the present appeal is the only one that has now to bethe first contention it may be observed that this Court in B. Shankara Rao Badami v. State of Mysore, (1969) 3 SCR 1   = (AIR 1969 SC 453  ) pointed out that where the petitioners villages were vested in the State of Mysore under section 1(4) of the Mysore under Section 1(4) ofthe Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954, and it was contended that the compensation provided by the Mysore Act was not the market value of the property at the time of acquisition there was a violation of Article 31 (2) and secondly the Mysore Act was beyond the legislative competence of the Mysore Legislature under Entry 36 of List II and Entry 42 of List III to the Seventh Schedule as the Entries stood before the Seventh Amendment of the Constitution, because (i) the existence of public purpose and the obligation to pay compensation are necessary concomitants of compulsory acquisition of property, and so, the term acquisition must be construed as importing by necessary implication the two conditions of public purpose and payment of adequate compensation, and (ii) the words subject to the provisions of Entry 42, List III in Entry 36 of List II reinforce the argument that a law with respect to acquisition of property made under Entry 36 should be exercised subject to therestriction as to public purpose and payment of compensation both of which are referred to in Entry 42, List III, it was held by this Court that the legislation was undertaken as part of agrarian reform which the Mysore State Legislature proposed to bring about in the State. Therefore, the impugned Mysore Act was a law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of such rights as contemplated by Article 31A and hence, the 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 designated to define and delimit the respective areas of legislative competence of the Union and State Legislatures and the principle of the maxim expressum facit cessere tacitum makes it inappropriate to treat the obligation to pay compensation as implict in Entry 33 of List I or Entry 36 of List II when it is separately and expressly provided for in Article 31(2). Thirdly, the words subject to the provisions of Entry 42 of List III mean no more than that any law made under Entry 36 by a State Legislature can be displaced or overriden, by the Union Legislature making a law under Entry 42 of List III. If the restrictive condition as to public purpose and payment of compensation are to be derived from those words, their absence in Entry 33 of List I leads to the unreasonable inference that Parliament can make law authorising acquisition of property without a public purpose and without a provision for compensation. The true inference is that the power to make a law, belonging both to Parliament and State Legislatures, can be exercised subject to the two restrictions not by reason of anything contained in the legislative entries but by reason of the positive provisions in Article 31(2). But as legislation falling within Article 31A cannot be called in question in a court forwith those provisions in Article 31(2) such legislation cannot be struck down as unconstitutional and void. In view of this decision, the question of lack of legislative competence was not pressed.On the main question whetherthe impugned Acts were revived by reason of the High Court of Andhra Pradesh striking down Act 9 of 1967, a perusal of that judgment would show that the Division Bench considered the question and held that as the inam lands had already vested in the Government on July 20, 1955, there was no need to abolish inams which already stood abolished long before the date when the impugned Act, namely, Act 9 of 1967, wasenacted. The right to patta having been acquired, the only purpose behind the impugned Act 9 of 1967 was to deprive the inamdars of their compensation, and to deny the payment of compensation to the inamders and others who were entitled to the same under the repealed Act. After stating thus, the Division Bench further observedresult of the above said analysis is that on the date when the impugned Act was made, there was neither any estate which could be abolished nor there was any necessity to effect any agrarian reform in so far as inams were concerned had already been done under the Act repealed (sic). If the Government did not choose to implement the Act for nine months and then preferred to postpone the payment 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 repealedstriking 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 beby 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 latter Act 9 of 1967 is void it could not have intended to say that even the Acts now impugned before us did not revive. What the Court implied by declaring Act 9 of 1967 void is that it as non est and that no such law could be passed in respect of a subject matter which has already vested in the Government; see Deep Chand v. State of Uttar Pradesh 1959 Supp (2) SCC 8 = (AIR 1959 SC 648  ). If so Act 8 of 1955 as amended by Act 10 of 1956 have been held to be in force and that compensation was to be paid in accordancethat case the Ministry of Home Affairs by a resolution in 1950 had declared reservation in favour of scheduled castes and tribes and had made a rule in 1952 for carry forward, whereby the unfilled reserved vacancies of a particular year would be carried forward for one year only. In 1955 the above rule was substituted by another rule providing that the unfilled reserved vacancies of a particular year would be carried forward for two years. The Court held that when the 1952 carry forward rule was substituted by another rule in 1955, the former rule ceased to exist when 1955 rule was declared unconstitutional in T. Devadasan v. Union of India, AIR 1964 SC 179   as such there was no carry forward rule in existence in 1960. In these circumstances the question that was considered was whether the carry forward rule of 1952 could still be said to exist. This court took the view that the carry forward rule of 1952 having been substituted by the carry forward rule of 1955, the former rule clearly ceased to exist because its place was taken by the carry forward rule of 1955. Thus by promulgating the new carry forward rule of 1955, the Government of India itself cancelled the carry forward rule of 1952. Therefore, when this Court struck down the carry forward rule as modified in 1955 that did not mean that the carry forward rule of 1952 which had already ceased to exist, because the Government of India cancelled it and had substituted a modified rule in 1955 in its place, could revive.In the case before us it has attempted to do something which the Legislature could not do namely to abolish inams which did not exist and which had already vested in the Government and which the Legislature 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 stillborn, 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 Act 8 of 1955 as amended by Act 10 of 1956 could not be held to have been repealed at all, and therefore they are ine first question Section 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 Samsthan or other competent grantor 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 such in the village records and includes(1) arasi makhta, arasi agrahar and sari inam; and (ii) lands held as inam by virtue of long possession and entered as inam in the village records. "Inamdar" under Section 2(1) (d) of the Abolition Act means a person holding an inam or a share therein, either for his own benefit or in trust and includes theof an inamdar etc. Under(2) of Section 2 words and expressions used in this Act (Abolition Act 8 of 1955) but not defined therein shall have the meaning assigned to them in the Land Revenue Act, 1317, Fasli, the Hyderabad Tenancy and Agricultural Lands Act, 1950, and the Hyderabad Atiyat Enquiries Act, 1952 and the rules thereunder. The provisions whereunder the inam has been abolished in so far as they are relevant in this case, are(1) of Sections 3 which provides that notwithstanding anything to the contrary contained in any usge, settlement, contract, grant, sanad, order or other instrument, Act, regulation, rules or order having the force of law and notwithstanding any judgment, decree or order of a Civil, Revenue or Atiyat Court, and with effect from the date of vesting, all inams to which this Act is made applicable under(2) of Section 1 of this Act shall be deemed to have been abolished and shall vest in thecombined reading of the provisions of the Abolition Act with the Andhra Pradesh Land Revenue Act shows that the Legislature had by abolishing inams intended to abolish all rights vested in the inam lands which had been granted to the inamdar.The right to tap or derive benefit from trees standing on the lands is a right appurtenant to the lands because a thing attached to the land is itself a part of the land and is immovable property. Haque Malkana which is the right in trees is therefore a right appurtenant to the land so that when any inam land vests in the Government the right to tap tress standing on the land also vests in the Government. There cannot be any separation of these rights when the tree is still part of the land. There can be no doubt that no publication of the notification under(1) of Section 3 of the Abolition Act all inams were abolished and vested in the State. The inams which were so abolished and vested in the State include in it all rights, title and interest in the inams by virtue of Clause (b) of(2) of Section 3 of the Abolition Act. Such rights as are intended to be 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 tress. This conclusion of ours is supported by the definition land in Section 2of 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 or 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 SCR 382   = (AIR 1961 SC 1649  ) while dealing with the validity of the Bihar Land Reforms 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 proprietor of an estate to hold a Mela on his own land is right in the "estate being appurtenant to his ownership of the land." Under(1) of Section 3 of the Abolition Act vesting of the inams is notwithstanding any judgment, decree or order of a Civil, Revenue or Atiyat Court. In other words, notwithstanding anything in the Muntakhab all the inams to which the Abolition Act is made applicable shall be deemed to have been abolished and shall vest in the State with effect from the date of vesting.16.We have noticed already that the inam granted to the appellant under the Muntakhab is with "all sources of income" i.e.which rights are not granted independently of the Maktha or inam land but are granted as part of the inam land so that when inam land vests, the rights which the inamdar had in the land including Hama Abwab i.e. Abkari rights also vest in the State. On this conclusion it is clear the the Abkari rights being part of the inam and having vested in the State, the compensation that is payable under Section 12 of the Abolition Act is inclusive of the Abkari rights. As the abolition of inams is a legislation intended to give effect to agrarian reforms by making the land available to persons who have no lands, compensation provided for under S. 12 cannot be challenged. The scheme of compensation under the Abolition Act is that four and a half times the family holding is to be retained by the inamdar and in respect of the rest of it a patta is given to the tenants which even with respect to them, along with any lands they own and cultivate personally, be equal to four and a half times the family holding. If after providing for these two items there remains any balance left the Government is required to pay compensation whether to the inamdar or to the tenants who have excess of land in their