MOHD. SHAUKAT HUSSAIN KHAN v. STATE OF ANDHRA PRADESH

31A of the Constitution as the abolition of Abkari rights is not in fur- therance of agrarian reforms. Alternatively, it was contended upon a proper construction of the provisions of Act 8 of 1955, Abkari rights of the appellant were not affected inasmuch as by the definition of the term 'Inam' what was vested was the rights arising from the land and not the rights which are acquired and granted debars of any rights in land . land or in B. Shankara Rao Badani & Ors. the Abolition Act 8 of 1955 is not in A few of the contentions which are not res integra may be disposed of. For instance, the contention that Act 8 of 1955 and Act 10 of 1956, even if they are revived, are constitutionally invalid as they have been enacted by a Legislature not competent to enact the same, and secondly furtherance of agrarian reforms. On the first contention it may be observed that this v. State of Mysore & Court Anr.(I) pointed out that where the petitioner's village w~rc vested in the State of Mysore under s.1 ( 4) of the Mysore (Personal and Miscel laneous) lnams Abolition Act, 1954, and it was contended that the compensation provided by the Mysore Act was not the market v•a\ue of the property ai: the time of acquisition there was a violation of Art. 3 l (2) and secondly the Mysore Act was beyond legislative compe!ence of the Mysore Legislature under Entry 36 of List II and' Entry 42 of List ][[ to the Seventh Schedule as the Entrirs stood be fore the Seventh Amendment of the Constitution, because (i) existence of public purpose and the obligation to pay compensation arc neces:__•1ry concon1itants 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 ade quate compensation, and (ii) the words 'subject to the provisions of Entry 42, Lis~ Ill' 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 no the twofold restriction as to public pur pose 'lnd payment of compensation both of which are referred to in It was held by this Court that the legislation was Entry 42, List III. undertaken as a part of agrarian reform which the Mysore State Legis iature proposed to bring about in the State. Therefore, the impugned Mysore Act was a law providing for the acquisition by the Sl'ate of any estate or of any rights therein or for the cxtinguishment or modification of such rights as contemplated by Art. 31A and hence, the impugned Act was protected from attack in any Court on the ground that it contra vened Art. 31(2). S·econdly, it was also held that the entries in the Lists of the Seventh Schedule were designed to define and delimit the· and State respective meas of legislative competence of the Union Legislature and the principle of the maximum expressum facit cassare tacitum makes it inappropriate to treat the obligation to pay compen sation as implicit in Entry 33 of List I or Entry 36 of List II wheri it is separately and expressly provided for in Art.31 (2). Thirdly, the words 'subject to tho provisions of Entry 4 2 List III' mean no more lllan tt.oat any law made under Entry 36 by a State Legislature can be displaced or overridden by the Union Legislature making a law - - - - - - - - (!) (1969] 3 S.C'.R. 1. . 434 SUPREME COURT REPORTS [1975] 1 s.c.R . 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, thei.r absence in Entry 33 of List I leads to the unreasonable inference that Parliament can make Jaw 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 Jaw, belonging both to Parliament and Stat0 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 Art. 31 (2). But as legisla- tion falling within Art. 31A cannot be called in ruestion i 11 '.1 court for non-compliance with those provisions in Art. 31 (2) such legisla tion cannot k struck down as unconstitutional and void. Jn view of this decision, the question of lack of legislative competence was not pressed. A B c The entire case of the appellant, therefore, rests on two short sub missions, namely, ( !) that the striking down of Act 9 of 1967 by the High Court of Andhra Pradesh against which there bas been no appeal to this Court and the withdrawal of writ petition No. 78 of 1969 filed in this Court would not revive the Abolition Act, and if the1v are revived, the abkari rights which are not a part of the inam rights, they are not touched by the provisions of the Act. Alternatively, even D 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 Art 31 (2) of the Constitution. On the main question whether the 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 had already vested in the Government on July 20, 1955, there was no need abolish inams which already stood abolished long before the date when the impugned Act, namely, Act 9 of 1967, was enacted. The right to patta h'.wing been acquired, the only purpose behind the im pugned Act 9 of 1967 was to deprive the inamdars of their compen- sation, and to deny the payment of compensation to tQe inamdars and others who were entitled to the same under the repealed Act. After stating thus, the Division Bench further observed: "The result of the above said analysis is that on 1hc 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 con cerned had already been done under the, Act repealed. Tf 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 subs- tance is really not agrarian reform but to destroy the rights of the inamdars and others who were assured compensoation ·under the repealed Act Thus the Act although pretends 1o enact a law relating to agrarian reform in spirit and in E F G H • s. H. KHAN v. A. P. STATE (Jaganmohan Reddy,!.) 4 3:;; A B c ,D E F G H effect it is a device to deprive the inamdars and other per sons of their acquired rights under the reprnled 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 Andbra 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 Govermnent, compensation had to be paid in accordance with the terms of those laws and cannot again be re opened 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 latter Act <; 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 was 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. The State of Uttur Pradesh and Others(!). If so Act 8 of 1955 as amended by Act 10 of 1956 have be1~n held to be in force and that compensation was to be paid in accordance therewith. The decision cited by the learned Advocate for the appellant in B. N. Tiwari v. Union of India & Others(')-is inapplicablc. In that case the Ministry of Home Affairs by a resolution in 1950 hud. dec lared reservation in favour of scheduled castes and tribes and had n:Juc a rule in 1952 tor carry forward, whereby the unfilled reserved vacancies of a particular year would be carried forward for one year In 1955 the above rule was substituted by another rule provid only. ing 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, former rnle ceased to exist when 1955 rule was declared unconstitn tional in T. Devadasan v. Union of India( 3 ), as such there was no In these circumstances the carry forward rule in existence in 1960. qnesiion 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 for ward rule of 1955, the former rule clearly c~ascd to exist because its place was taken by the carry forward rnle of 1955. Thus by pro mulgating the new carry forward rule of 1955, the Government of India itself cancelled the carry forward rnle of 1952. Therefore when this Court struck down the carry forward rnle as modified i~ 1955 that did not mean that the carry forward rul.e of 1952 which had already ceased to exis.t, because the Government of India itself can celled it and had snbstituted a modified rule in 1955 in its place !n the case before us it had attempted to do something co~ld revive. wluch the Legislature could not do namely to abolish inams which did not exist and which had already vested in the Government and (I) [1959] Supp, (2) S.C.R. 8. (2) [1965] 2 S.C.R. 421. (3) A.l.R, [1964] S.C. 179. . (36 SUPREME COURT REPORTS [1975] 1 s.c.R . In these circumstan which the Legislature could not abolish again. .ces, the repeal of an enactment, which had already been given effect was a device for depriving the inamdars whose rights had bee11 abo lished, 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 W of 1956 could not be held to have been repealed at all, . and therefore they are in existence. The question that now remains is whether Act 8 of 1955 as amended by Act I 0 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 questions. 2(1) (c) of the Aboliti.on 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 com petent granter and continued or confirmed by virtue of a muntakhab er 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 village records and includes-(i) arcsi makhta, arazi agrahar and seri inam: and (ii) lands held as inam by virtue of long pc1>session and entered as inam in the village records. "lnamdar" under s. 2(1 )(d) of the Abolitictn 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-s. (2) of s. 2 words and express; ons used in this Act (Abolition Act 8 of 1955) but not defined therein shall have the meaning assigned to them Land Revenue Act. 1317. Fasli. the Hyderabad Tenancy and Agricul tural Lands Act, l 950, and the Hyderabad Atiyat Enquiries Act, 1952 and the rules thereunder. The provisic11s whereunder the inam has been abolished. in so far as they are relevant in this case, are sub·s . • ( 1) of s. 3 which provides that notwithstanding anything to the con . trary contained in any usage, settlement, contract, grant, sanad, order or other instrument, Act, regulation, rules or order having the fc[ce 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. Clauses (a), (b), (cl and (2) of s. 3 of the Abolition Act which are also material are as follows : "S. 3(2) Save as expressly provided by or under the pro visions of this Act and with effect from the date of vesting. the following consequences shall ensure, namely : (d) of sub-s. (a) the provisions of Land Revenue Act, Fasli relating to inams, and the provisions of the Hyderabad Atiyat En quiries Act, 1952. and other enactments, rules, regulations and circulars in force in respect of Atiyat grants shall, to the extent, they are repugnant, tci the provisions of this Act, not apply and the provisions of the Land Revenue Act, 1317 Fasli, relating to unalienated lands for purposes of land reve· :nue, shall apply to the said inams; A B c D E F G H ' s. H. KHA1' v. A. P. STATE (Jaganmohan Reddy, J.) 437 (b) all rights, title and interest vesting in the inamdar, kab1z·e-kadim, permanent tenant protected tenant and non protected tenant in respect of the inam land, other than the interests expressly saved by or under provisicJls of this Act lands, cultivated and and including those in all communal lands, uncultivated lands (whether assessed or notl, waste 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 encumberances; ( c) all such inam lands shall be liable to payment of land revenue; revenue ( d) all rents and land including cesses and royalties, accruing in respect of such inam lands, cp or after the date of V<•sting, shall be payable to the State and not to the inamdar, and any payment made in contravention of tl!is clause shall not be valid." Under s. 4 of the Abolition Act every inamdar shall, with efk:t from the date of vesting. be entitled to be registered as an c1:cupant of all inam lands other than those specified in clauses (a), (b) and (c) of that c·ection. Similar!, 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 ctwns and cultivates personally arc equal to four and a half times the 'family holding'. Under sub-s. (2) of s. 4 the kabiz-e-kadim she:!] be entitled to compensation from the Government as provided for under the Abolition Act in respect of Inam lands, in his possession in excess c.f the limit specified in sub-s. (I) whether cultivated or not. Section 12 of the Abolition Act provides for determination of compensation payable to the inamdar and provides thus : "The compensation payable to the inamdar for the inams abei'ished under section 3 shall be the aggregate of the sums specified below : - (il in respect of inam lands registered in the name of the inamdar and kabiz-e-kadim under sections 4 and 5, a sum equal to twentv times the difference between land revenue and judi or quit-rent: (ii) in respect •o'f income accruing to the inamdar from the lands registered in the names of his permanent tenant, protected tenant and non-protected tenant a sum equal to sixty per cent c.f the premium charged as the case may be, under sections 6. 7 and 8." Section 2(1-b) of the Andhra Pradesh Land Revenue Act 8 of 13 I 7 Fasli defines 'land' as including all kinds of benefits pertaining to land, or things attached to the earth, or permanently fastened to A B c D E F G H • .. • ' - - 438 SUPREME COURT REPORTS [1975] l s.c.R. . things attached to the earth and also includes shares in, or charges A the revenue or rent which are or may be levied on villages, or on, other defined areas. A combined reading of the provisions of the Abolition Ac! 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 ri;;ht to B tap or derive' benefit from trees standing on the lands is a right appur tenant to the lands because a thing attached to the land is itself a part of the land and is immovable property. Haque Malakana 1vhich is the right in trees is therefore a right appurtenant to the land so that when any inam land vests in the Govermnent, the right to tap trees standing on the land also vests in the Government. There cannot he any separation of thesr rights when the tree is still part of the C land. There can be no doubt that on publication of the notification under sub-s. ( 1) of s. 3 of the Abolition Act all in ams were abolished and vested in the State. The inams which were so abolished and ves_tcd in the State include in it all rights, title and interests in the inams by virtue of clause (b) of sub-s. (2) of s. 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. therefore, clear that all rights, title and interest vesting in the Iuam- dar 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 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 things a•tached to the land and will also include shares in the chargi!S on the E revenue or rent It is, D land or This Court bad in State of Bihar v. Rameshwar Pratap Narain Singh(!) 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 alorn: with the land or without the land. There can be no doubt therefor';, lhat the right of the proprietor of any estate to hold a 'Mela' on his own land is a right in the "estate being appurtenant to his ownership of the land." Under sub-s. (1) of s. 3 of the Abolition Act vestincr of the inams is notwithstanding any judgment, decree or order of ~ G Civil,_ R~venue or Atiyat Court. In other words, notwithstanding anything m the Muntakbab 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. F We have noticed already that the inam granted to the appellant under the Muntakbab is with "all sources of income" i.e. 'Ba-Hama Abwab' which rights are not· granted independently of the Maktha or H (1) [1962J 2 s.c.R. 382. , --• • s. H. KHAN v. A. P. STATE (Jaganmohan Reddy,].) 43 9 A 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 con clusion it is clear that the Abkari rights being part of the inam and having vested in the State, the compensation that is payable under s. I 2 of the Aholition Act is inclusive of the Abkari right<. As the abolition of inam5 is a legislation intended t<> give effect to agrarian B . 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 and a half 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 aud 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 possession. retained by family holding is to be the Abolition Act is c In any view of the matter we think that the judgment of the High Court of Andhra Pradesh c201not be assailed. We acrnrdingly dismiss the appeal with costs. D S.B.W. Appeal dismissed. JO-l J77SupCt'75