K°CTiJUiJ v. Stale of K11ala

Judgment

.-Sections 52 and 64 of the Act which pro vide for payment of Compensation at progressively smaller rates for larger valuations of the interests acquired are not in valid as offending Art. 14 of the Constitution. The provisions in the act making a discrimination in favour of tea, coffee, rubber and cardamom plantalion and also in favour of cashew plan tations cannot be upheld. Sections 3(viii), 57 (1) (d) and 59 (2) are therefore invalid. These are however severable from the other parts of the Act and the whole Act cannot be held to be bad merely because those provisions are bad. Per Ayyangar, ].-Properties held on ryotwari tenures and the interest of the ryot in such lands would not be "esta tes" for the purposes of Art.

31A(2) as it stood even after the Fourth Amendment of the Constitution. Where an existing law in relation to land-tenures in force in an area contains a definition of an 'estates' and that defini .. tion excludes the interest of a ryotwari proprietor, the very words of Art. 3 IA(2) of the Constitution negatived the appli cability of its provisions to that tenure. Ram R4m Narain Medhi, v. Stale of Bombay, [1959] Supp. I S.C.R. 489 and Atma Ram v. State of Punjab, [1959] Supp. 1 S.C.R. 748, referred to. Section 2(39) which by definition excludes pepper and arcca plantations from the category of the pl~ntations named in it which are exempted from the operative provisions of the impugned Act, s. 58 for the determination of the ceiling in respect of different individuals who are brought within the scope of the enactment and ss.

52 and 64 for determining the compensation payable to the several classes of persons whose lands arc acquired under the Act are all violative of the guarantee of equal protection of laws nuder Art. 14 of the Constitution. O:BIGINAL JURISDICTION: Petitions Nos. 114 and 115 of 1961. Petition under Art. 32 of the Constitution of India. for enforcement of Fundamental Rights. 1961 Ka,imhil Kunhil:om .. Y. Stat. of Kna/• W011<hoo J. • 836 SUPREME COURT REPORTS [1962) SUPP. devices has taken away money, which should have gone to land-owners or to those from wh')m excess lands wero being acquired. The attack is based on the facts that in s. 52 of the Act compensation pay· able to a land-owner is reduced aft.er the pur· chase prioe to be paid by the tenant to whom the land is to be a<isigned has been &~ccrtained, and that in s.

64 of the Act the oompemation payable to a pereon from whome cxoosR land is takPn is reduced by cPrtain percentage after the market value of tho land has been determined. It is urged that by these devices the State is acquiring money which should properly have gone to the land-owner to whome compensation is payable under s. 52 and to the person who surrenders excess land to whom compensation is p<i.yable under s. 61. There is no doubt that certain deductions are made from the purchase price payable by the tenant under s. 45 and from th~ market value before componstion is arrived at for payment to the land-owner under s. 52 land under and to the person surrendering excess s. 6!. But if one looks at the purpose and object of the Act it will be clear that the main provisions of the Act are clearly within the legislative com petence of the State lll~islature under item 18 of List II and item 42 of List III.

The scheme of the Aet so far as Chap. JI dealing with extinction of the Is that the State the under ss. 41 and 42 on a day to be notified by \he Government in that behalf. Thereafter, s. 4:l provides that cultivating tenants of the landH which have vested in the ::itate shall have a right to assignment of the right, title and interest so vestrd in the State on payment of a certain price which i11 calculated under s. 45 and is called the purchase price. After the purchase price is determined, the compensation land-owner is provided bys. 52 and thero is reduction in the purchase priee for the purposes of given compen sation. It is howover obvious that the object of Chap. II ia to vest proprietorship in the land in the land-owner's right right vested is concerned land-own<>r's to be paid the to in I 1961 Kari .. hil Kunl,;J;- v.

Stat. of KwoLt w.,,,,... J. (1) S.C.R. SUPREME COURT REPORTS 837

cultivating tenants and for that purpose Chap. II provides for carrying out the object in two stages. In the first stage, the property of the landowner the tenant is is vested in the State. Thereafter given the right to acquire that property from the State. What price the tenant is to pay for j;he land is worked out under s. 45 and what compen sation the State is to pay to the !and-owner is worked out under s. 52, which however reduces the purchase price arrived at under s. 45 for the It is however purpose of giving compensation. clear that tenants are not bound to apply to ac quire the land which they hold as tenants and where they do not do so, s. 44 (3) provides that they be come the tenants of Government and shall be liable to pay to the Government the rent payable in res pect of the land from the date on which the right, title and interest over the land vested in the Govern ment. It cannot therefore be said that the scheme which provides for two stages, namely, first acquisi tion by .Government and secondly assignment to ten ants is a camoflage devised for the purpose of taking away the money which would otherwise have been payable to the land-owner in case the interest of the landowner was directly transferred to the cultivating tenants. It is also clear that there is bound to be a time lag between the acquisition underss. 41 and 42 and the assignment to tenants under s. 43 and the subsequent sections and in the meantime the Govern ment would be the owner of the right11 acquired. Clearly, therefore Chap. II of the Act envisages first the acquirement of the land-owner's interest by the State for which compensation is payable under s. 52. Thereafter the State will assign to such culti-. vs.ting tenants as may apply the rights acquired by the State and there is likely to be an interval be tween the two transactions. Besides some culti vating tenants may not apply at all and that pa.rt of the property will remain with the State Govern In these circumstances it cannot be said ment. that the scheme evoh·ed in Chap. II is a device for . • • 11141 KtJrilfChil E wahjkontat1 •• ill.U of Ktr•liJ W.""lico J. 838 SUPREME COURTLREPORTS [1962) SUPP. taking away :my part of the money to the land owner from the tf'nant to whom his interest may eventually ho assigned. Besides the adequacy of componsat.ion provided under s. 52 for acquisition by the Stato of the intorest of the land-owner cannot be challanged on the ground that the com penHation provided by the law is not adequate : see Art. 31 (2). It is only because the compensa tion prodded under s. 52 is 1L percentage of the purchase price as culculated under s. 45 that it appears as if tho State is taking away a part of the compensation due to the landowner. Section 52 is however only a met hod for determining compenAation and the whole compensation duo to the land-owner is to be foun<l in s. 52 and it cannot therefore be said that any part of the compensa tion is being taken away by the State. Similarly the scheme of Chap. HI which pro vides a ceiling is that any laud in excess of the ceiling shall vest in the Go\·ernment under s. 62. Thereafter thr land so vested in Government can be assigned undrr s. 70 to porsons who do not pos sess any land or possess land less than 5 acres of double crop nilam or its equivalent. It i~ true that Government may assign the lands to those who apply under s. 70 but it is not bound to do so and here again there will be a timP lag between the vesting of the excess land in the Government under s. 62 and its· assignment to those who are eligible under s. 70. The charge that in this Chapter there is a device for taking away the compensation due to the Jami-owner is baaed on the fact that s. 72 the person to whom the land is assigned under s. 70 has to pay 55 per cent. of the market value of the land while the person from whom tht' excPss land is taken is not always paid 55 per cent. of the market value, inasmnch 1\8 the percentage goes down to 25 per cent. of tht> mn.rket value in certain circumstan · ces. But here again the compensation is provided entirely under s. 64 and it is that section which sets out the manner in whioh the compensation is to be I I 1961 Karimbil Kunlrikcm4n v. Stal# of ~ttola Wi111clloo J. 840 SUPREME COURT REPORTS [1962) SUPP. for saying justification challenged in view of Art. 31(2), and there is therefore no that the money due to the landowner or the persr,n from whom the excess land is acquired is being taken away by the State. That argument would only be poSBible if the compensation was the whole amount arrived at under s. 45 or under s. 7:! and frorn that the Government deducted money due to the land· owner. That however is not so and the compensation to which tho landowner or the person from whom the excess land is acquired is to be found only in .ss. 52 and 64 and there is thus no question of taking away any money dne to the landowner. Further, whatever unfairness might appear because of the difference between as. 45 an::! 52 on the one hand and BB. 64 and 72 on the other and the manner in which the compensation is shown as a percentage of the purchase price or the market value is removed by the provision in s. 80 of the Act. That section provides for the constitution of an agriculturist rehabilitation fund in which the surplus, if any, of the purchase price r.ftcr the dis bursement therefrom of the compensation is to he put along with other moneys. This surplus does not to go to the revenues of the State and t.he State cannot be sr.id to have taken away for its own pur pose any part of the compensation. Further s. 80 provides that the fund shall be utilised for render ing help by way of loan, grant or otherwise to persons affected by the Act who are eligible for the same in accordance with the rules framed by the Government. The fund therefore created under s. 80 of the surplus, if any, is to be utilised for rendering help to peraons affected by the Act. That in: our opinion clearly means either the land owners whose rights are affected by Chap. II or the persons from whom exec~& land is taken under Cht.p. III. The surplus money therefore is to be utiliiled for the benefit of the persons affected by the Act as indicated above. This section l\lFo ' .. 1961 Karim11il Kunkikoman v. State of i·tralo Waneho1 J. (1) S.C.R. SUPREME COURT REPORTS 8•1 provides that the Government will frame rules with respect to the persons affected and their eligibility for help the fund. Our attention in this connection has been drawn to f he eligibility rules framed under this section for the administration of the fund, and in particular to r. 161 which provides for eligibility for grants and loan. That rule in our opinion goes beyon9 the scope of s. 80 in so far as it provides for making of grants or loans to persons not affected by the Act. We may in this connection refer to r. 161 (a)(i) and (ii) and r. 161 (bl (i) and (ii) which are so framed as to take within their scope even per sons not affected by the Act., though r. 16l(a)(iii) and r. 16l(b)(iii) are with respect to persons who may be affected by the Act. Rule 16l(a)(i) and (ii) and r. l6l(b)(i) and (ii) in so far as they take in persons not affected by the Act are uUra vires of the provisions of s. 80 and must be struck down on that ground and may have to be replaced by more suitable rules. But the rules which have been actually framed will not affect the provisions of s. 80 which clearly show that the ·fund is for the benefit of those who are affected by the Act, namely, those who are affected by Chapters II and III of the Act, i.e., those landowners whose rights have been acquired under ss. 41 and 42 and those persons from whom excess land is taken away under s. 62. Section 80 thus clearly shows that any surplus that may arise is not tflken away by the State for its own revenue purposes but is meant to be used for the benefit of those affected by the Act and therefore even the a.pparent result of the difference between ss. 45 and 52 and ss. 64 and 72- is taken away by the constitution of the fund under s. 80, and it cannot be said at all under the circumstances that any device has been employed in the Act to take away the moneys of the land owners or the persona from whom excess land is taken away for the purpose of adding to the reve nue of the State. We are therefore of opinion that 1961 liarimhil Kunhikomon •• Stall of K'11fJ/& Wa11<hoo J. (I) S.C.R. FIUPREME COURT REPORTS 843 It will be seen therefore that so far as the meaning of the word " estate " is concerned, there was no change in sub-cl.(a)and the only change was with respect to the inclusive part of the definition of the word "estate". The word " estate has !I.II along been defined to have the same meaning in re lation to any local area as that expression or its local equivalent has in the existing law relilting to land tenures in force in that area. It is also remark able that the word " intermeiliary" does not occur in sub-cl. (a) thouirh it occurs in sub-cl. (h). The definition in sub-cl. (a) is self-contained and there is no scope for importing any idea of inter mediary in the definition from s11b-cl. (b ). The reason why the words "other intermediary " are used in sub-cl. (b) which defines rights in relation is that that sub-clause mentions a to an estate, intermediaries as such, like sub-pro number of prietors, under-proprietors, tenure-holders b11t does not give a complete enumeration of all inter mediaries that may be existing in estates all over India and therefore uses the words "other inter mediary " to bring in all kinds of intermediaries existing in an estate. As an example we may piention that formerly in Uttar Pradesh there were fixed rate tenants in the permanently settled dis tricts who were also intermediaries and it iB such persons or their likes who were brought in within the sweep of the definition of rights ill' relation to an estate by the use of the wo1ds "other interm& diary". Therefore, when the words "raiyat, under raiyat" were added in sub-cl. (b) in 1955, it WSB further enumeration within a class already there; further as held in The State of Bihar v. Rameshwar their inclusion in the Prafap Narain Singh ( 1 ), circumstances and in the particular setting showed that the words " or other intermediary" did not necessarily qualify or colour the meaning to be attached to these new tenures. The meaning of the word "estate" has however to be found in (1) AJ.R. 1961 S.C. 1si~. 1961 A'o•i,,,hil A"imhsko11UJJt •• -'"'"of Ktrol• w .. ,,.,. J, 844 SUPREME COURT REPORTS (l!l62] SUPP. sub-cl. (a) and it is the words used in that sub-clause only which will determine its meaning irrespective of whether any intermediary exiRted in an estate or not. Tho meaning of the word " estate " in eu b-cl. (al is the same as it might be in the existing law relating to land-tenure in force in a particular area. Where therefore there is an existing law in a particular area in which the word "estate" as such is defined the word would have that ml'an ing for that area and there is no necessity then for looking for its local equivalent. But if in exist ing law of a particu Jar area the word " estate " as such is not defined, but there is a definition of some othor term which in that aroa. is the local equivalent of the word " estate " then the wor<l the meaning assigned " estate " wo uld have to that term in tho existing law in that area. In order, howrvcr, that one may he ablo to say that~ a particular term in an existing law in a particular area is a local equivalent of tho word " estate " used in sub-cl. (a) it is necessary to have some basic idea of the meaning of the word " estate " for that purpose. 'lhat basic idea seems to be that the person holding tho estate should be the proprietor of the eoil and should be in direct relationship with the State paying land-revenue to it, when it is not remitted in whole or in part. If a tenn therefore is defined in any existing law in a local area which corresponds to this basic idea of an estate that term would be a local equivalent of the word " estate " in that area. It is unnecessary to pursue the matter further because this aspect of the case has also been considered in Writ Petition No. 105 of 1961. It may be added that !IS the definition of the word "estate" came into the Constitution from January 26, 1950, and is based on existing law we have to Jor,~ into law existing on Ja.naary 26, 1950, for the parpose of finding out the meaning of the word "estate" in Art. 31A. 1961 Korimbtl Kunhiknman v. Stab of Ktrala Wa11ch110 J. (1) S.C.R. SUPREME COURT REPORTS 845 Let us therefore look at state of the law as it was in the State of Madras on January 26, 1950, for the area from which these petitions come was then in the district of South Canara, which was th~n a part of the Province of .Madras, which became the State of M1dras on January 26, 1950. The usual feature of land-tenure fa Madras was the ryotwari form but in some districts, a l:indlord class had grown up both in the northern and southern parts of the Presidency of Madras as it wa~ before the Constitution. The permanent settlement was introduced in a part of the Madras Presidency in 1802. There were also various tenures arising out of revenue free grants all ovc1· the Province (see Chap. IV, Vol. IH of land Systems of British India by Baden Powell) and sometimes iu some districts both kinds of tenures, namely, landlord tenures and the ryotwari tenurp,s were prevalent. There were various Acts in force in the Presidency of Madras with respect, to landlord tenures while tenures were governed by the Standing Orders of the Board of Itevenue. the Madras legislature passed the Madras Estates Land Act, No. I of 1908, which was later amended from time to time. It contains a definition of the word "estate" as such ins. 3(2) and when the Constitu tion came into force the relevant part of the defini tion was as followe :- Eventually, in 1908, ryotwari "Est.ates' means : - (a) any permanently settled estate or temporarily settled zamindari; (b) any portion of such permanently settled estate or temporarily settled zamin dari which is separately in the office of the Collector; registered (c) any unsettled palaiyam or jagir; (d) any inam village of which the grant bes'been'made, confirmed or recognised by the .!Britiah Government, ·notwithstanding'"that 1961 .Karim6Jl K~nA&komon '· )tat. of Kno/o w..,1 .. 1. - 846 SUPREME COURT REPOR'r8 (1962] SUPP. subsequent to the grant, the village has been partitioned among th• grantees or tho succes sors-in-title of the grantee or grantees." This Act applied to the entire Presidency of Madras except the Presidency town of Madras, the district of Malabar and the portion of the Nilgiri district known as South East Wynaad. It thus applied to the district of South Canara from where these petitions come. So far therefore as the District or South Canara was concerned, there was an existing law which defined the word "estate" for that local area. Shortly before the Constitution eamo into force the Madras legislature had paSBed the Madras Estates (Abolitio!l and Conversion into Ryotwari) Act No. XXVI of 1948. That Act provided for the abolition of estates subject to certain restrictions with which we arc not concern ed. It also provided for repeal of the Madras Permanent Settlement Regulation, 1802, and the Estates Land Act of l!l08 to the extent and from the date on which notifications were made under s. 3 of that Act. There was thus no repeal of Act I of 1908 by the Act of 1948, and it is not in dispute that Act No. l of 1908 was in force on January 26, 1950, in large pints of the Province of Madras including South Canara, and is still in force in auch parts of it as have not been notified under s. 3 of the Act of 1948. Therefore, we reaoh the position that when Art. 31 became applicable from January 26, 1950, Act No. 1 of 1908 was still in force in large parts of the Madras State and it contained ii definition of the word "estate" as suoh. Further, Act I of 1908 was clearly a law of land-tenures as a brief review of its provisions will ehow. Section 6 of the Act conferred ocou-. panoy rights on tenants of certain lands in "estates" as defined in the Act of 1908. Chapter II dealt with the general rights of landlords and tenants. Chapter III dealt with provisions relating to rate of rent payable by tenants and provided for enhancement, reduction. commutation, alteration 11111 Karimhil Kunhikoman •• SM, of Korala Wanchoo J. - (l) S.C.R. SUPREME COURT REPORTS 847 and remission of rent. Chapter IV dealt with pattas and muchilikas. Chapter V provided for payment of rent and for realisation of arrears of rent. Chapter VI provided the procedure for recovery of rent. Other Chapters dealt with other matters including Chap. X which dealt with relin quishment and ejectment. It is clear therefore that the Act of 1908 was a law relating to land tenures. Therefore, we reach the posit.ion that in a law relating to land-tenures which was in force in the State of Madras when the Constitution came into force the word "estate" was specifkally defined. This law was in force in the whole of the State of Madras except some parts and was thus in force in the area from which the present petitions come. This area was then in the south Canara district of the State of Madras. We are therefore of opinion that the word "estate" in the circumstances can only have the meaning given to it in the Act of 1908 as amended up to 1950 in the State of Madras as it was on the date the Constitution came into force. We have already said that the Act of 1908 dealt with landlord tenures of Madras and was an exis ting law relating to land-tenures. The other class of land-tenures consisted of. ryotwari pattadars which were governed by the Board's Standing Orders, there being no Act of the legislature with respect to them. The holders of ryotwari pattas used to hold lands on lease from Government. The basic idea of ryotwari settlement is that every bit or land is assessed to a .certain revenue. and assigned a survey number for a period of years, which is usu ally thirty and each oocupant of such land holds it subject to his paying t.he land-revenue fix·,d on that land. But it is open to the occupant to • •· Hnquish his land or to take new land which has been relin quished by some other occupant or become otherwise ·available on payment of a11sessment, (see Land Systems of British India by Baden-Powell, Vol. III, Chap. IV, s. II, p. 128). Though, theoretically, accor ding to some authorities, the occupant of ryotwari 1961 Ka•imhil Ku1ahi1onw1~ •• 81411 of K~ala Ji' Q'lthH J. 848 SUPREME OOURT REPORTS fl 962] SUPP. land held it under an annual lease (see Maeleanc, Vol. I Revenue Settlement, p. 104). it appears that in fact the Collector had no power to terminate tho tenant's holding for any cause whatever except failure to pay the revenue or tho ryot's own relin· quishmcnt or abandonment. The ryot is generally called a tenant of Government but he id not a tenant, from year to year and cannot ho oust.ad as long ns he p»ys the land-revenue assessed. He has also tho right to sell 01· mortgage or gift the land or lease it and the transferee becomes liable in his place for the revenue. Further, the lessee of a ryotwari pattadar has no rights except those conferred under the lease and is generally a sub-tenant at-will liable to ejectmcnt at the end of each year. In the llfa11U11I of Admini.stmtion, as quoted by Bad!'n Powell, in Vol. III of Land Systems of British India at p. 129, the ryotwari tenure is summarised as that "of a tenant of tho State enjoying a tenant-right which can be inherited, sold, or burdened for debt in precisely the same manner as a proprietary right subject alway~ to payment of the revenue due to the Stat.a''. Though therefore the ryotwari patta dar is virtually like a proprietor and has many ·of the advantages of such a proprietor, he could still relinquish or abandon his land in favour of tho govern ment. ryotwari pattadar was never considered a proprietor of the land under ltis patta, though he had many of the advantages of a proprietor. Considering, however, that the Act of 1908 was in forr,o all over tho State of Madras but did not apply to lands held on ryotwari settlcmt>nt and contained a definition of the word "estate" which was also applicable throughout the State of l\Ia<lras except tho areas indicated above, it is clear that in the existing law relating to land-tenures the wor<l "estate" did not include the lands of ryotwari pat! adars, however valuable might be their rights in lands as they eventually came to ho recognised. It is because of this position . 1961 . Karimhil !lunhikoman V• Stat1o1Kerala , Wanchoo J. (1) S.C.R. SUPREME COURT REPORTS 849 Turning now to the district of South Canara and the areas from .which the present petitions come it appears that originally the ryotwari settlement was not inforce in this area and two kinds of ten recognised, namely, mulawargdar and ures were Sarlcarigeniivargdar. It is, however, unnecessary to go into the past history of the matter, for it is not in dispute that the ryotwari system was introduced in South Canara district in the early years of this century. The history will be found in the Book "Land Tenures in the Madras Presidency" by S. Sunderaraja Iyengar, II Edn., pp. 45-47, where it is said that "after the introduction of the ryot wari system into South Canara, no distinction now exists between the wargadar, the mulawargadar and kudutaledar and they are all ryotwari pattadars", Therefore, when the Constitution came into force the ryotwari p11ttadars of S'outh Canara were fo. the same position as ryotwari pattadars of the rest of the State of Madras. Further, as the Act of 1908 was in force in South Canara also, though there may not be many estates as defined in that Act in this area it follows that in this area also the word "estate" would have the same meaning as in the Act of 1908 and therefore ryotwari pattadars and their lands would not be covered by the word "estate". Further, there can ·be no question of seeking for a local equivalent so far as this part of the State of Kera.la which has come to it from the former State of Madras is concerned. We are therefore of opinion that lands held by ryotwari pattadars in this part which has come to the State of Kerala by virtue of the States ReorganiSation Act from the State of Madras are not estates within the meaning of Art. 3 lA (2)( a) of the Constitution arid therefore the Act is not protected under Art. 3IA(l) from attack under Arts. 14, 19 and 31 of the Constitution. 1961 .Karimhil .Kunhikoman v. · State of Kerala Wanchoo J. ""~ -~ -·--· 856 SUPREME COURT REPORTS [1962] SUPP. Re. (4) . The next contention on behalf of the petitioners is that the Act m<tkes a discrimination between areca and pepper plantations on the one hand and certain other plantations on the other and should therefore be struck down as violative of Art. 14 of the Constitution. Section 2(39) of the Act defines "plantation" to mean any land used by a person principally for the cultivation of tea, coffee, rubber or cardamom or such other kind of special crops as may be specified by the Government by notification in the gazette. Areca and pepper plantations have however not been included in this definition. It is urged on behalf of the petitioners that in this part of the State there are a large number of areca and pepper plantations which are practically run on the same lines as tea, coffee and rubber plantations and there is no reason why discrimination should be made between areca and pepper plantations on the one hand and tea, coffee and rubber plantations on the other. The discrimination is said to arise from the provisions of s. 3 and s. 57 of the Act. Section 3(viii) which occurs in Chap. II dealing with the acquisition of the interest of landowners by tenants excepts tenancies in respect of plantations exceeding thirty acres in extent from the application of that chapter. The result of this ia that tenants in plantations exceeding thirty acres in extent cannot acquir the interest of the landowners with respect to such plantations and the landowners continue to own such planations as before. Further s. 57 which is in Chap. III provides for exemption of all plantations whatever their extent from the provisions of that Chapter. Thus the ceiling area provided in s. 58 will not apply to plantations which will be left out in calculating the ceiling area for the purpose of s.58. Further, s.59(2) provides that in calculating the ceiling area any cashew estate if it was a cashew estate on April, 11, 1957 and continued as such at the Karimbil Kunhikoman v. State of Kera(a Wanchoo J. • 851 (i) S.C.R. SUPREME COURT REPOR1i'S .. commencement of s. 59 (provided the cashew estate was principally planted with cashewnuts tree and be a contiguous area not below 10 acres) will continue to bff owned or held as before, though ·the ceiling in such cases would be reduced to half of that provided in s.58. These provisions inter alia confer benefits on those who hold plantations as defined in s. 2(39) and also on those who have cashew estates as defined in the Explanation to s. 59(2). The contention on behalf of the petitioners is that there is no the same benefits which have been reason why conferred on plantations as defined in the Act should not be conferred on those who hold areca and pepper plantations, and that there are no intelligible differentia which would justify the State · legislature in treating the pepper and areca planta tea and coffee rubber, tions differently from plantations. Article 14 has been the subject of consideration by this Court on a number of occasions and the principles. which govern its application have been in Shri Ram Krishna Dahnia v. Shri summarised Justice S. R. Tendolkar (1), in these words :- "(a) that a law may be constitutional even though it relates to a -single individual if, on account of some special circumstance~ or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; (b) ( c) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it . to show that there has been a constitutional principles ; that it must be · presumed that the legislature understands and correctly appreciates the need · of its own people that its laws are directed to problem~ transgression of (I) [1959] S.O.R. 279, 297, 852 SUPREME COURT REPORTS [1962] SUPP. 1961 Ka1imbil Kunhikoman V, St ;le of Kerala w~nchoo J. (d) made manifest by experience and that its discriminations are based on adequate grounds; to recognise that the legislature is free degrees of harm and may confine restrictions to those cases where the need is deemed to be the clearest ; ( e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived time of legislation ; and existing at (f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought the notice of the court on which the cla.ssification may reasonably be regarded as based, the presumption of constitutio nality cannot be carried to 1.he extent of always holding that there must be some undisclosed and unknown subjecting certain individuals or corpora hostile or discriminating legislation." reasons The petitioners rely on cl. (f) of this summary and contention is that there is nothing to show either in the Act or even in the affidavit filed un behalf of 1.he State in reply to the petitions or in the circumstan ces brought to the notice of th'l court that the clas in this case which excludes areca and sification pepper plantations and includes tea, coffee and rubber plantations is a. proper classification based on intelligible differeiitia which are related to the obj Jets and purposes of the Act. 1961 Karimbil Kunhikoman v. .State of·Kera/a WanchooJ. ( l) S.C.R. SUPREME COURT REPORTS 853 This brings us to .a consideration of the reasons which may have impelled the legislature to treat plantations as a class differently from other lands. The objective of land reform including the imposition of ceilings on land holdings is to remove all impediments which arise from the agrarian structure inherited from the past in order to incre ase agricultural production, and to create conditions for evolving as speedly as possible an agrarian economy with a high level of efficiency and productivity (see p. 178 of the Second Five Year Plan). It is with this opjee:t in view that ceiling on land.holdings has been imposed in various States. Even so, it is recognised that some exemptions will have to be granted from the ceiling in order that production may not suffer. This . was considered in the Second Five Year Plan at p. 196 and three main factors were taken into account in deciding upon exemptions from the ceiling, namely :·-- (!) integrated nature of operations, especially where industrial and agricultural work are undertaken as a composite enter prise, (2) specialised character of operations, (3) from the aspect of agricultural production the need to ensure that efficiently managed farms which fulfil certain conditions are notbroken up. · Bearing these criteria in mind it was recommended in the Second Five Year Plan (see p. 196) that the following categories of 'farms may be 1>xempted from the operation of ceiling namely : "(l) tea, coffee and rubbei: plantation; (2) orchards where constitute reasonably compact areas ; 1961 Karimbil Kunhikoman v. State oj Kera/a Waachoo J. 854 SUPREME COURT REPORTS [1962] SUPP. (3) specialised farms engaged in cattle breeding, dairying, wool raising etc ; (4) sugarcane factories; and farms operated by sugar refers thereof (5) efficiently managed farms which consist of compact blocks, on which heavy investment or permanent structural improve ments have been made and whose break-up is likely to lead to a fall in production." The same view has been reiterated in Chap. XIV of the Third Five Year Plan dealing with Land Reform and ceiling on agricultural holdings and para 28 the grounds of exemption envisaged by the Second Five Year Plan. rt:is obvious therefore that when the State legis lature in this case exempted tea, coffee, rubber and cardamom plantations from the ceiling under Chap. III and treated plantations of over 30 acres as a special case for the purpose of Chap. II, it must have had the principles enunciated above in mind to differentiate them from ordinary cultivation of other crops. If that bo so, the question immediately arises whether there is any reason for treating areca and pepper plantations differently. If there is none and ,areca and pepper plantations stand so far as these conditions are concerned on the same footing as tea, coffee and rubber plantations there will clearly be a discrimination against them by the provisions of the Act referred to above. Turning now to pepper plantations, first, we may refer to the information contained in Farm Bulletin No. 55 relating to pepper cultivation in India issued by the Farm Inform<ition Unit, Direc torate of Extension, Ministry of Food and Agricul ture, New Delhi in September 1959. It appears from this bulletin that Kerala is the most important pepper producing State in India, where pepper is cultivated on an organised :plantation scale ovllr 1961 Karimhil Kunhikoman v. S fate of Kera/a Wanchoo J. (1) S.C.R. SUPREME COURT REPORTS 855 fairly extensive areas. There are three ·distinct regions of the pepper growing belt, namely, ( 1) The Travancore and Cochin region. (2) The Malabar and South Canara region, and (3) the Coorg and North Canara region. Though pepper is essentially a homestead garden crop, growers were· encouraged to grow it on plantation scale since 1928 when the price of pepper rose to about Rs. 700/- per candy. Since then there has been a further rise in the price of pepper with the result that new homestead gar dens and plant11tions have sprung up and pepper cultivation has extended a good deal. During the last fifty years, pepper which was largely a house hold garden crop has emerged as a plantation crop and fairly large sized plantations of pepper exist in the submontane eastern parts of North Malabar and the Hosdrng taluk of South Canara, (the area from which these petitions come). In Hosdrug taluk in particular pepper is grown mostly on large scale plantations and it is here that the finest and the best organised pepper plantations in India exist. Some of the largest plantations among them have an area of a 100 to 150 acres. Pepper vines com mence yielding usually from the third year, the yield increasing gradually until the vines come to full bearing in about ten years. The economic life of a vine varies from place to place. From the tenth to the 25th year, the vines are in full bearing, and the yield begins to decline after the 30th year. The initial outlay on pepper plantations is heavy and the pepper crop requires continuous attention and care. The total area under pepper is over 2 lakhs acres out of which about 20,000 acres are under pure pepper plantations. The initial expenditure on laying out a pepper plantation can be recovered only after several years and the best organised and most extensive pepper plantations of India are in the Hosdrug taluk, South Canara (from where thes(;l petitions coxpe) iwid North M1J>l1J>bar, 1961 Karimbil Kunhikoman v. State of Kerala Jfanchoo J. 856 SUPREME COURT REPORTS [1962) SUPP. This information taken from ]'arm Bulletin 55 shows that in the last fifty years pepper in India has reached the plantation stage and in particular in Hosdrug taluk from where these petitions come there are the best organized and most extensive pepper plantations in India. The initial cost of laying out a pepper plantation is heavy and the pepper vines yield nothing for three years and full production comes only in the tenth year. There· fore, where pepper is cultivated as a plantation crop on a large scale the cost is heavy and may be com parable to the outlay on large scale tea, coffee and rubber plantations. It is in these circumstances that we have to consider whether there has been discrimination against pepper plantations when they have not been included in the definition of plantation under s. 2( 39) of the Act. Turning to arecanut, reference may be made to Farm Bulletin No. 14 issued by the same autho rity. The major arecanut growing belt in India is again the same regions, i.e., South Canara, Malabar, Coorg and Travancore-Cochin along with parts of Mysore, Bengal and Assam. Arecanut is also grown on plantation scale. Since the crop begins to bear fruit after about eight years, large sums have to be expended up to the bearing stage without any income till then. The estimated life of an arecanut garden is about 50 to 60 years, though some of the palms in the garden will be dying occasionally or becoming uneconomic and it will be necessary to replace them. For this reason underplanting is taken up periodically. It appears further from the Procee dings of the Ninth Annual General Special and Twelfth Ordinary Meetings of the Indian Central Arecanut Committee held on January 23, 1958, that the ques tion whether arecanut gardens should be put under ceiling or not and whether there would be hampering of production which would be against national inte rest if a ceiling were imposed on such gardens had been referred to a Sub-committee for consideration. 1961 Karimbil Kunhikoman v, State oj ·K~ra!a Wartchoo J. (1) S.C.R. SUPREME COURT REPORTS 857 The Sub.committee reported that if areca gardens were brought under the ceiling it ·would )lamper production which would be against the- national interest and recommended to the Planning Commis sion, the Central Government and the State Govern ments that, as proposed by the Planning Commis sion in respect of tea, coffee and rubber plantations, orchards, specialised farms and efficiently managed farms, arecanut gardens be also similarly exempted from ceiling. The Sub-committee also noticed that. arecanut cultivation involved heavy capital outlay in establishing, maintaining and protecting the are canut trees. This recommendation of the Sub-com mittee came up for consideration before the Indian Central Arecanut Committee on January 23, 1958, and was accepted. Thus these proceedings show that fixation of ceiling on arecanut gardens would hamper production which would be detrim~ntal to national economy. It is in this background there fore that we have to consider whether the non-inclu sion of areca and pepper plantations in. the defini tion in s. 2( 39) with the result that areca and pepper plantations do not enjoy similar benefits as others, is discriminatory. - From what we have said above it has not been shown that there is any appreciable difference between the economics of tea, coffee and rubber plantations and areca and pepper plantations. It, is true that plantations in· are ca and pepper are not so widespread as tea, coffee and rubber plantations but it is equally true that in this particular area from which these petitions come areca and pepper plantations are very common. The fact however that areca and pepper plantations are very common only in this area of the State of Kerala is no reason for treating them differently from tea, coffee and rubber plantations which are apparently more. evenly distributed throughout the State. If the criteria evolved by the Planning Commission, as already indicated, apply to tea, coffee ·and rubber 1961 Karimhil Kunhikoman .. State of Kerala Wmwhoo J. 858 SUPREME COURT REPORTS (1962] SUPP. plantations in our opinion they equally apply to areca and pepper plantations and there is no reason for differentiating between these two sets of plan tationA. So far a;; areca is concerned we have the recommendation of the Sub-committee, mentioned above, endorsed by the Indian Central Arecanut Committee, that it would be detrimental to national economy not to extend the benefit of exemption from ceiling to arecanut plantations in the same way as is done in the case of tea, coffee and rubber plantations. As for pepper we have it from Farm Bulletin No. 55 that the best organised and most extensive pepper plantations of India are in Hos drug Taluk of South Canara and that some of them are even as large as 100 to 150 acres each. The result of the application of the ceiling and other provisions of the Act would mean the break-up of these plantations and may result in fall in produ ction. It is to avoid the break-up of tea, coffee and rubber plantations and the consequent fall in pro duction that ceiling has not been imposed on these plantations. The same reasons in our opinion lead to the conclusion that pepper plantations should also be treated similarly. In this connection refe rence may be made to the opinion expressed in Farm Bulletin No. 55 where the author has said that it is impossible to keep a large plantation of pepper in good tip-top condition, without incurring heavy expenditure and without great efforts and has added that in the existing conditions no one planter should have more than 10 acres of pepper plantation. This would seem to suggest that 10 acres is the economic optimum limit for pepper plantations. It is not clear however on what basis this recommendation is based, for undoubtedly the bulletin shows that there are plantations of much larger extent in this area and the plantations here are the best organised and the most extensive through out the whole of India. The only reason which seems to have beep. given in support of the opinion that 1961 Karimbil Kunhikoman Y. Stale of Kerala Wonclio!1 'j (1) S.C.R. SUPREME COURT REPORTS 859 . 10 ·acres is the optimum area for a pepper planta tion is that one planter in that region was of the view that unless the price of one candy of pepper remained at a high level of anything between Rs. 1,500/- and Rs. 2,000/- it will be impracticable and unprofitable to maintain large scale plantations of pepper in these ·regions, and if p~ices go down for below this level, large scale pepper plantations may have even to be abandoned. This does not afford a sufficient basis for holding thett 10 acres is the optimum holding for a pepp0r plantation. In the first place, it is mentioned at p. 8 of the bulletin that pepper began to be grown on plaintation scale when the price rose to about Rs. 700/- per candy in falls below 1928. Therefore even if the price -Rs. l,t>OO/- to Rs. 2,000/- per candy there is no reason why pepper cultivation on a plantation scale should become impracticable, particularly as it is unlikely that the cost of only pepper will fall and not all other commodities. At p. 72 the bulletin · mentions that the cost of cultivation· of pepper can be brought down only if the general price level is there fa no brought down substantially. Now reason to suppose that there would be a catastrophic fall in the price level of pepper only which would make all pepper plantations above 10 acres uneco· nomic and unprofitable. In any 'case thi.F is not the reason urged on behalf of the State in support of · not including pepper pl:i.ntations in the definition In this connection we ought to add of plantation. that the counter :i.ffidavit filed by the respondent is very unsatisfactory ; no serious attempt ·has been made at all to justify the exclusion_ of pepper and areCtLnut' from the exemption granted to tea, coffee, rubber and cardamom ; no facts :i.re stated and no data supplied in reply to the detailed alle gations made in the petitions challenging . validity of the classification in question. · The only reason given by the State in the counter affidavit is that a plantation crop is ~enerally underi,1tood 1961 Karimbil KunhJko1nan v. Stat1 rif Kera/a Wanckoo J. 860 SUPREME COURT REl'ORTS [1962] SUPP. to refer only to tea, coffee and rPbber and car damom. It is not quite clear what exaytly is meant bv this one sentence in the counter affidavit in support of the definition. If a plantation crop is generally understood to refer to only tea, coffee, rubber aud cardamom, it is not understood why the definition provides for extending the word "plantation to other crops by notificatiou. The very fact that power has been reserved for extending the definition by notification to other crops shows that other crops can also be grown on plantat.ion scale. In view therefore of what we have said above with respect to the economics of areca and pepper cultiva tion, it is obvious that no sufficient reason has been shown for differentiating areca and pepper planta tions in this area from tea, coffee and rubber plantations in the State. Making all the presump tions in favour of the classification made under . s.2(39) it is clear that there is nothing on the face of the law or the surrounding circumstances which has been brought to our notice in this case on which the classification contained in s .. 2(39) can be said to be reasonably based. Considering the object and purpose of the Act and the basis on which ex emption has been granted under Chapters II and III to plantations as defined in the Act, there appears to be no reason for making any distinction between tea, coffee and rubber on the one hand and areca and pepper on the other in this particular case. It is not as if tea, coffee and rubber are grown only on a large scale while areca and pepper are mostly grown on a small scale. We find from the report of the Plantation Inquiry Commission, 1956, that small holdings exist in tea, coffee and rubber plan tations also and are in fact the majority of such plantations. For example, in the report of the Plantation Inquiry Commission relating to coffee at pp. 9 and 14 we find that out of the total num ber of registered estates more than 4,500 are bet ween 5 acres and 25 acres while only about 2,200 1961 Karimbil Kunhik1Jman v. State of Keralo Wanchoo J. (l) S.C.R. SUPREME COUR'F REPOltTS 861 estates are above 25 acres. Further ,there are more than 24-,000 estates below 5 acres. , Similarly at p. 97, Chap. XI, Part III of the Report dealing with rubber, out of the total of over 26, 70'1 rubber estates, 23,300 are up to 5 acres, 1,900 up to 10 acres and only about 1,500 above 10 acres. So it ·appears that the large majority of plantations whe ther they be of coffee or rubber are below 10 acres and that is also the case with areca and pepper plantations. Thus there is no reason for giviug preference to plantations of tea, coffee and rubber over plantations of areca and pepper for the con ditions in the two sets of plantations whether for the purpose of ceiling under Chap. III or for the purpose of acquisition of landowners' rights under Chap. II are the same. The reasons therefore which call for exemption of tea, coffee and rubber plantations equally apply to areca and pepper plan tations and there is no intelligible differentia related · to the object and purpose of the Act which would justify any distinction tea, coffee and rubber plantations as against areca and pepper plantations. We are therefore of opinion that the provisions relating to plantations are viola tive of Art. 14 of the Constitution. in · the case of The next que~tion is whether these provisions are severable, that is to say, whether the Kerala legislature would have passed the Act witho.ut these provisions. That depends upon the intention of the legislature and as far as we can judge that intention from the provisions of the Act, it seems clear to us that the legislature did not intend that the provisions relating to acquisition by tenants · should apply to plantations · as and ceilings dafined in the Act, so that they may have to be broken-up with consequent loss of production and" detriment to national economy.. It seems that· the· legislature could not have intended in order to . carry out the purpose of the legislation to do. so even after breaking-up all the plantations which 1961 Karimbil Kunhiloman v. tale of Kerala JVanchoo"'J. - - -~' ·- 8tl2 SUPREME COURT BlfFOB'.IS [l!l62] SUPP. existed in the State. It follows therefore that the legislature would not have passed the rest of the Act without the provisions relating to plantations. As these provisions affect the entire working out of Chapters II and III of the Act which are the main provisions thereof, it follows that these provisions relating to plantations cannot be severed from the Act and struck down only by themselves. Therefore, the whole Act must be struck down as violative of Art. 14 of the Constitution so far as it applies to ryotwari lands in those areas of the State which were transferred to it from the State of Madras, and we order accordingly. Re. (5). Then we come to the attack that the Act is violative of Art. 14 on account of the manner in which ceiling has been fixed under s. 58 thereof. Section 2( 12) defines a "family" as meaning husband, wife and their unmarried minor children or such of them as exist. There are three kinds of families existing in this State namely, the joint Hindu family, and Aliyasanthana Marumakhathayam family family, the latter two being matriarchal. In the matriarchal family the husband and wife are n'ot members of the same family but belong to di:ffier ent families. The joint Hindu family does not mere ly consist of the husband, wife and unmarried minor children ; it consists at least of the husband wife and all the children whether married or un married and whether minor or adult. The defini tion of "family" therefore in the ·Act is an artificial one which does not conform to any of the three kinds of famlies prevalent in the State. Turning now to a. 58, the ceiling has been fixed in two ways. The first is by reference to a family as defined in the Act of not more than five members which is allowed 15 acreR of double crop nilam or its equivalent with an addition of one acre of double crop niJP -:;1 or its equivalent for each 1961 Karimbil Kunhikoman v. Slate of K<ralu WanclwoJ. (1) s.c.:R. SUPREME COURT REPORTS s6a member in excess of five, so however that the total extent of the land shall not exceed 25 acres of dou hie crop nilam or its equivalent. The second is by reference to an adult, unmarried person who is allowed 7! acres of double crop nilam or its equi valent. It has been urged on behalf of the State that the provisions as they stand do not make any discrimination whatsoever for there is the same provision for all adult unmarried persons ·and the same for all families as defined in the Act. This in our opinion is an over-simplification of the provi- . sion relating to ceiling under s. 58. On an argument of this kind no provision would ever be discrimi natory for it is unlikely that a provision would: on the face of it make a discrimination. The discrimi· natory nature of the provision has to be judged from the results that follow from it and we have no doubt that the results which follow from lthis double provision as to ceiling are bound to be dis criminatory. If the ceiling had been fixed with respect to one standard whether it be of an indivi dual person or of a natural family by which we recognised in personal law, the mean a family results may not have been discriminatory. But where the ceiling is fixed as in the present~ case. by a double standard and over and above that the family has been given an artificial definition which does not correspond with a natural family as known to personal law, there is bound to be discrimination resulting from such a provision. A simple illustra tion will explain how the results of the manner in which the ceiling has been fixed by s. 58 will lead to clear discrimination between person and person. Take the case of an adult unmarried person and a minor who is an orphan with no father, mother brother or sister. Assume further that each o.wns under · personal cultivation. The former who is an adult unniarried person will retain 7! acres and will have to surren der 17! acres as· excess land. The latter will be an artificial .family under the definition of that word 25 . . Karimbit li. Unhilcoman v. Si1Jte of Kert1la Waricho~ J, 864 SUPREME COURT REPORTS [1962] SUPP. reference ins. 2(12). This follows from the fact that a family consists of husband, wife ancl. their unmarried minor children or such of them as exist. This is also made clear bys. 61(2) which shows that even a minor who has no parents, and no brothers or sisters will constitute a family under s. 2(12). This minor there fore as constituting a family will be entitled to 15 acres of law! and will have to surrender only 10 acres as excess land. No justification has been shown to us on behalf of the State for this discrimi natory treatment of two individual persons; nor are we able to underntand why such discrimination which clearly resu Its from the application of the provisions of s. 58(1) is not violative of Art; 14 of the Constitution. Examples can be multiplied families also, to joint Hindu show that in many cases discri which would mination will result on the application of these provisions to joint Hindu families. Similar would in our opinion be the case with J\farumakhathayam and Aliyasanthana families where as we have already pointed out the husband and wife do not belong to the same family as known to personal law. Dis crimination therefore is writ large on the consegne nces that follow from the provisions of s. 58( 1 ). We are therefore of opinion thats. 58(1) is violative of the fundamental right enshrined in Art. 14; as that section is the basis of entire Chap.III the whole Chapter must fall with it. This would be an additional reason why Chap. III should be struck down as violative of Art. 14 in its application to ryotwari lands which have come to the State of Kerala from the State of Madras. Re. (6). It is contended that the manner in which the compensation is cut down progressively in ss. 52 and 64 of the Act is violative of Art. 14. The Com- pensation payable under s. 52 is determined in this manner. First the purchase price is arrived at under s. 45. Thereafter s. 52(2)(b) provides that the landowner or the intermediary, except in the , ·Karimhil Kunhikoman 1161 .. :state of Keral11 Wanch11 J, (1) S.C.R. SUPREME COURT REPORTS 865 case of religious, charitable and educational institu tion of a public nature, would be entitled to com pensation, The compensation would consist of (1) the value of structures, wells and. embankments of a permanent nature situated in the land and belong ing to the landowner or the intermediary, as the case maybe, and (2) the percentage of the value of interest of the landowner or the intermediary in respect of the land and the j~provements other than those falling under sub-cl. (i) according to the scales specified in Sch. II. Schedule II then provides that the first Rs: 15,000/-. of the compensation will be paid in full. Thereafter there will be a reduction of 5 {>er cent. in each slab of Rs. 10,000/- till we reach compensation above Rs. 1,45,000/- Thereaf ter the compensation arrived at under s. 52 read with s. 45 is reduced by 70 per cent so that the landowner or the intermediary gets only 30 per cent of what has been arrived at under s. 52 (2) (bl read with s. 45. Similarly in s. 64 the compensation payable for excess land surrendJJred is (i) the full value of any structures, wells and embankments of a perma nent nature situate in the land and belonging to the person who surrenders such land, and (ii) the per centage of the market value of the land.and improve ments other than those specified above. Here again on the first Rs. 15,000/- compensation at 60 per cent is to be paid. Thereafter the compensation is reduced by 5 per cent for each slab\)'[ Rs. 15,000/- till, we reach over Rs. 1,75,000/- when the compensation is .reduced by 75 per cent. The contention on behalf of the petioners is that there is no intelligible differentia on whioh the purchase price determined under s. 45 or the market value ~s to be reduced by different percentages dependmg on interest ~o be acquired. The reply on behalf of the State IS that there is really no discrimination inasmuch total market value purchase price 1961 Karimbil Kunhikoman v. Stale of Kerala Wanchoo J. 866 SUPREME COURT REPORTS [1962] SUPP. the same percentage is reduced where the compenAation payable to different persons is the same. That is undoubtedly so. But that alone is not in our opinion the end of the matter. The question which is posed for our consideration is why a person in whose case the purcha~o price or the market value Rs. 15,000/- should get the full pur chase price or suffer a reduction in themarket value at a certain rate while another person in whose case compensation is more than Rs. 15,000/- should suffer reductions at a different rate which reductions be come progressively higher as the purchase price or the market value increases. We could understand once the purchase price or the market value bad been determined a uniform cut therefrom for all persons entitled to compensation. That would then raise the question of adequacy of compensation and unless the cut was so large as to make the compen sation illusory the cut may be protected by Art.31(2). But in the persent case there is not a uniform cut on the purchase price or the market value for all persons, the cut is higher as the purchase price or the market value gets bigger and bigger after the first slab of Rs. 15,000J-. This difference in cut is being justified on behalf of the State on the same principle on which (for example) the slab system exists for purposes of income-tax. We are however of opininon that there is no comparison between the slab system of income-tax rates and the present cuts. Taxation is a cumpu, liory levy from each individual for the purpose of the maintenance of the State. We may therefore reasonably expect that a ri<>h man may be required to make a contribution which may be higher than what may be proportionately due from his income for that purpose as compared to a poor man. This principle cannot be applied in a case where a person is deprived of his property under the power of eminent domain for which he is entitled to compensation. There is no reason why when two persons are deprived of their property one richer than the other, they should be paid at 1161 Karimbil Kunhikoman v. State of Kera/a Wanchoo J, I) S.C.R. SUPREME COURT REPORTS 867 different rates when the property of which they are deprived is of the s:1me kind and differs only in extent. No such principle can be applied in case where compensation is heing granted to a person for deprivation of his property. Where one person owns property valued at Rs. 15,000/- while another owns property valued at Rs. 30,000/-, both are equally deprived of the property. When therefore it comes to a question of payment of compensation we can see no reason why a person whose compensation amounts to Rs. 15,000/- should get the whole of it or a large part of it while another person whose compensation amounts to (say) Rs. 30,000/- should get something less than the first person. It is not as if there is some difference in the nature of the property which might justify different payments of compensation. What the Act provides is to work out the purchase price or the market value first for the purpose of determining compensation and then make different cuts from the purchase price or the market value according to whether in one case the purchase price or the market value is Rs. l 5 000/- and in another case it is more Rs'. 15,000/-. No justification, is pointed out for this discrimination except the principle on which the slab system for the purpose of income-tax is justi fied. That principle as we have just pointed out does not apply to a case of compensation. Nor are we able to see any rational classifica tion which would justify different cuts based simply on the amount of compensation worked out on the basis of purchase price or market value. The only thing we can see is that because a person is possibly richer he must be paid less for the same type ofland while a person who is poorer must be paid more. This kind of discrimination in the payment of com pensation cannot in our opinion be possibly justified on the objects and 1mrposes of the Act. The object and purpose of the Act, as we have already said, is to grant rights to cultivating tenants so that they may Karimbil Eunhikoman •• Stile ef lfoala W1mlhooJ. 868 SUPREME COURT REPORTS [1962] SUPP. improve their lands resulting in larger production to the benefit of the national economy. Secondly, the object of the Act is to provide land for the landless and to t.hose who may have little land by taking excess land from those who have large tracts of lands so that peasant proprietorship may increase with consequent increase in pro< 1uction due to greater interest of the cultivator in the soil. But these objects have no rational relation which would justify the making of different cuts from the purchase price or the market value for the purpose of giving compensation to those whose interests are being ·we can therefore see no acquired under the Act. givinir different compensation justification based on different cuts from the purchase price or the market value as provided in ss. 52 and 64 of the Act. landowner having the Bihar Land We may in this connection refer to Kameshwar Singh v. The State of Bihar (1 ), in which similar question with respect to compensation provided Reforms Act, 1950, for consideration. There the Act came up provided compensation at different rates depend ing upon the net income. The landowner having the smallest net income below Rs. 500/- was to get twenty times the net income as compensation largest net income, i.e., above 1,00,000/- was to get only three times of the net income. Intermediate slabs provided different multiples for different amounts of net income. That provision was struck down by the Special Bench of the Patna High Court as violative of Art. 14. It may he montiontd that that decision was given btforn the Constitution (First Amendment) Act adding Art. 31A and the Ninth Schedule to the Constitution was passed. Three learned Judges composing the Special Bench who heard that case were unanimously of (l) A.LR. 1951Pat.91, - (1) S.C.R. SUPREME COURT REPORTS 869 ) ). opinion that such difference in payment was viola tive of Art. 14 and the principle of progressive taxation did not apply to compensation for land acquired. We are of opinion that the view taken in that case is correct and the same applies to the present case. We may point out that that case came in appeal to this Court (see, The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh (1 The appeal however was heard after Art. 31A and the Ninth Schedule had been introduced in the Constitution and therefore this Court had no occa sion to consider whether such difference in pay ment of compensation would be violative of .Art. 14. We are therefore clearly of opinion that the manner in which progressive cuts have been im posed on the purchase price under s. 52 a11d the market value under s. 64 in order to determine the compensation payable to land owners or inter mediaries in one case and to persons from whom excess land is taken in another results in discrimi nation and cannot be justified on any intelligible differentia which has any relation to the objects and purposes of the Act. As the provision as to is all pervasives, the entire Act compensation must be struck down as violative of Art. 14 in its application to ryotwari lands which have come to the State of Kerala from the State of Madras. In view of what we have said above on the main points urged in the petitions, it is unnecessary to consider other subsidiary points attacking parti cular sections of the Act on the ground that they were unreasonable restrictions on the right to acquire, hold and dispose of property under .Art. 19( l)(f). We therefore allow the petitions and strike down the Act in relation to its application to ryotwari lands which have come to the State of Kerala from the State of Madras. The petitioners will get their costs from the State of Kera.la, one set of hearing costs. [ 1)(1952] S. C, R. 889. Karimbil Eunhikuman Y, Stat1 of Eual• Sarkar J, ' 1961 Karimbil Kunhikoman •• State of Kerala Sarkar J. 870 SUPREME COURT REPORTS [1962] SUPP. SARKAR, J.-I wi~h to say a few words on two of the questions that arise in these cases. The Act, the validity of which is challenged, provides for acquisition of lands for equitable distribution among the people who require it for cultivation by themselves. It provides for pay ment of compensation to those whose interests are acquired. It also provides for a mode of valuation of these interests. Then it provides b>- ss.52 and 64 for payment of compensation at a progressively smaller rate for larger valuations. For the higher slabs in the valuation made as provided by the Act, less and less is paid by way of compensation. It is said that these provisions for progressively diminishing compensation are discriminatory and unconstitutional. This is the first point with which I propose to deal. The question is whether the payment of com pensation at a progressively smaller· rate as the valuation is higher offend5 Art. 14 of tho Constitu tion. Now it is not disputed that progressively higher rate of taxation by an Act taxing income I think such taxation is is not unconstitutional. too well recognised now to be challenged. If that is so--and that was the basis on which arguments proceeded in this case-I am unable to see that a statute providing for acquisition of property and for payment of compensation at a progressively lower rate for the higher slabs of valuation can be unconstitutional. "The reason for progressive taxation in the case of inheritance taxes and income taxes is the receiving or giving to pay" : ability of those Willis's Constitutional Law (1936 ed.) p. 597. The cases in America that I have looked up also put the matter on the same basis. The classification by progressively higher in a taxing statute is therefore good if based on the tax payers' ability to pay. taxation It is however said that what applies in the case of a taxing statute cannot apply to a statute Karimbil Kunhikoman v. State of Kerala !Sarkar J. (1) S,C.R. SUPREME COURT REPORTS 871 permitting acquisition of property on payment of compensation. I do not see why ? I am not aware that the test for determining whether there has been unequal treatment is different with different varieties of statutes, that the test for a taxing statute is not the same as that. for a statute providing for acquisition on payment of compensa tion. I think the test is the same for all statutes, and it is that there must be an intelligible differ entia having a rational relation to the object of the Act. Now the object of a taxing statute is to collect revenue for the governance of the country. Ability to pay is a9knowledged to be an intelligible <liffer entia having a relation io such an object. The object of the statute with which we are <Joncerned is to acquire land on payment of compensation so that the land may be equitably distributed among the people. If under a statute whose object is to collect revenue more can be legitimately de manded from a person having more, it seems to me that under a statute whose object is to acquire land by paying compensation less can equally legitimately be paid to a person who has more. Ability to pay, or which is the same thing as ability to bear the loss arising from smaller payment received, would in either case be an intelligible differentia having a rational relation to the object of the Act. In one case it serves the object by collecting more revenue for adding to the resources for governing the country and in the other case it serves the object by making it possible for the State by payment of less money out of its resources to acquire lands for better distribution. In both cases the State resources are benefited, in one by augmentation and in the other by prevention of larger depletion. Therefore, I would accept the learned Attorney-General's argument that ss.52 and 64 of the Act cannot be held to be discrimi natory and void for the same reason on which IHI .Kari»iiil Kuriillom•• •• -- ~tat• of X1r•I• 872 SUPREME COURT REPORTS ll962] SUPP. progressive rates of taxation are held not to be so in ~he case of an Income-tax Act . the cultivation of tea, The next question on which I wish to say a few words concerns those provisions of the Act which exempt plantations of tea, coffee, rubber or cardamom or such other kinds of special crops as the Government may specify, from certain pro visions of the Act. Plantations have been defined in s. 2(39) of the Act as land used by a person principally for coffee, rubber or cardamom or other notified crops. No other crop appears to have been notified yet. Section 58 of the Act provides the ceiling area of land which may be held by any individual pro prietor. Land above the ceiling has to be surrend ered to the Government. Section 57 of the Act provides that this provision would not apply to plantations as defined in s. 2(39). Again, Ch. 2 of the Act which gives the tenants the right to purchase land from the landlords and vests in the Government the lands of the landlords not them selves cultivating them above the ceiling fixed, is by s. 3 (viii) not made applicable to plantations exceeding thirty acres in extent. The question iB whether the benefit so given to the plantations the Act is discriminatory. The as defined petitioners own large scale cultivation of areca legitimate and pepper. They contend differentiation is possible between lands on which areca and pepper are grown and lands on which tea, coffee, rubber and cardamom are grown. that no No doubt the presumption is that a statute is constitutional but such presumption is not con clusive. It is also true tha.t a court is entitled to assume the existence of all rational basis on which the cla.ssification made by an Act may be justified. Even so, it seems to me, that the present classi fication is, on the materials now before us not justified. It may be that plantations of tea, coffee 1961 Karimhil Kunhikoman v. State o j Kera SarktJr J, (1) S.C.R. SUPREME COURT REPORTS 873 to a rubber and cardamom, especially the first three, are usually large in size and require big invest ment;;. It may be that they are carried on as industries which give employment labour force. These characteristics may however only justify the putting of large plantations of these crops in a class. The Act however exempts all lands ·on which tea, coffee, rubber or car damom is grown irrespective of the size of the business carried on or of labour employed on them, as a class. Materials have been placed before us to show that there are a very large number of smaller plantations growing tea, coffee and rubber. There are also many areca, and pepper plan tations exceeding thirty acres in area. There is no reason to put tea, coffee, rubber and cardamom plan· tations in a class as distinguished from similar sizes of plantations of areca and pepper. None at least has been shown by the State of Kerala to exist. The only ground shown in the affidavit of the State ofKerala seeking to justify the classification of tea, coffee, rub ber and cardamom plantations in one class is that "plantation crop is generally understood to refer only to tea, coffee, rubber and cardamom" and that "areca and pepper are not generally grown on a plantation scale". I am unable to think that thiese afford sufficient justification for making a discrmination in favour of tea, coffee, rubber and cardamom plantations. It would appear from the Planning Commission's Report that other kinds of crops might profitably be grown as plantation crops. In any case, a general understanding even if there was one, is not sufficient basis for discrimination. With regard to the other statements of the State, it is enough to say that the Aot does not make a discrimination because of the size of the plantations. Therefore, there is no point in saying that areoa. and pepper are not grown on a plantation scale. For these reasons I think the p~ovisions in the Act making a discrimination in fav our of tea, 1961 Karimbil KunhiAoman v. State of Kera/a Sarkar J. Ayyangar J, 874 SUPREME COURT REPORTS [1962] SUPP .. coffee, rubber and cardamom plantations cannot be upheld. For the same reason, I think the discrimi natory treatment made in favour of cashew plant. ation also cannot be sustained. Sections 3 (viiiL 57(l)(d) and 59(2) of the Act are therefore, in my I think however that these opininion, invalid. provisions are severable from other parts of the I think it cannot be 1 t·asonably said that the Act. legislature would not put the Act into operation if these provisions are taken out of it. The deletion of the provisions does not further make it impossi I am, there ble for the rest of the Act to operate. fore, unable, to hold that because the sections mentioned above are bad, the whole Act should be declared to be bad. That is all I wish to say in this judgment. With regard to the other matters arising in this case, I agree with the judgment delivered by Wanchoo J. AYYANGAR, J.-I entirely agree with the order that the petitions should be allowed and the impu gned Act struck down in relation to its application to ryotwari lands which came into the State of Kerala from the State of Madras-this being the only relief which the petitioners seek from this Court. My only reason for thiH separate judgment is because I do not agree with that portion of the reasoning in the judgment just now pronounced in these petitions where it deals with the interpretation of Art. 31A(2). In my judgment in the companion case-Writ Petition No. 105 of 1961-I have endea voured to point out what according to me is the proper construction of this Article and I adhere to that view. I consider that on Art. 3 IA( 2) as it stands even after the fourth Amendment, properties held on ryotwari tenures and the interest of the royt in such lands would not be "estates" for the purposes of that rticleA. No doubt, as pointed out by me in the 1961 Karimhil Kunhikoman v. State of Kerala Ayyangar J. (1) S.C.R.. SUPREME COURT REPORTS 875 other judgment, if there was a law existing on the date of the Constitution in relation to land-tenures under which "estates" were defined as including not merely lands held by intermediaries and of others holding under favourable tenurers, but also of ryot wari proprietors having direct relationship with the Government and paying full assessment, such latter category of interests might also be comprehended within the term· "estate" by reason of the words "oove the same meaning as that expression ...... has in the existing /,aw re/,ating to land tenures inf orce in that area" in Art.31A(2)(a). That is the real basis and the ratio underlying the decisions of this Court in Ram Ram Narain Medhi v. State of Bombay('), and Atma Ram v. State of PunJab( 2 In all other cases (apart from the two categories specially added by the Fourth Amendment) no lands other than those held by intermediaries or held on a favourable tenure would fall within the definition of"an estate" this be ing according to me the central concept or the thread which runs through the entire definition. ). The choice between the diffierent interpreta tions of the Article does not however present itself for the disposal of this petition which has to be ans· wered in favo11r of the petitioner even on the view of the scope of Art. 31A which has commended itself to my colleagues. Where an "existing law. in relation to land-tenures in force in an area" contains a definition of an "est'l.te" and that defi nition excludes the interest of a roytwari proprietor, the very words of Art.31A(2)(a) which I have extr acted earlier would negative the applicability of its provisions to that tenure. Art. 31A being out of the way I agree that the provision in ( l) s. 2 ( 39) of the Act which by definition excludes pepper and areca plantations from the category of the plantations which are named in it which are exempted from the operative provisions of the impugned Act, (2)s. 58 for the (1) [1959] Supp. IS. C. R, 489. (2) [1959] Supp. 1 S. C.R. 748. 1961 Karirnbil a n v. State of Kerafa Ayyan:ar J. 876 SUPREME COURT REPORTS [1962) SUPP. determination of the ceiling in respect of different individuals who are brought within the scope of the enactment, and (3) ss. 52 and 64for determining the compensation payable to the several classes of persons whose lands are acquired under Act, all these are violative the guarantee of the equal protection of laws under Art. 14 of thr C,,nstitution. I therefore agree in tho order proposed that the petitions be allowed, and with costs. Petitions allowed. 1961 December 5. STATE OF WEST BENGAL v. M/S. B. K. MONDAL AND SONS (P. B. GAJENDRAGADKAR, A. K. SARKAR, K. N. WANCHOo, K. C. DAs GUPTA and N. RAJAGOPALA .AYYANGAR, JJ.) State Government-Enjoying beiufit of non-gratuitous work Ij bound to pay compen•ation-Absence of valid contract, if exo nerate• !iability-lndia'lt Oo'lttract Act, 1872 (9 of 1872)-•.70 Government of India Act, 1935 (25 & 26 Geo.5. Oh.42), •.175(3). By s. 70 of the Contract Act, "where a per•on lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously; and such other person the benefit thereof, the latter is bound to make enjoys compensation to the former in respect of, or to restore, ~he thing so done or delivered". Under s.175(3) of the Govern ment of India Act all contracts made in the exercise of the executive authority of a province shall be expre8'ed to be made by the Governor of the province and shall be executed on behalf of the Governor by mch persons and in such manner as he may director authorise. The respondent, a firm of building contractors doing cons truction works for the Provincial Government did certain additional construction on the reque1t of its officers. Its bills for these latter works were not paid and it sued the Govern ment basing its claim on contract and in the alternative on s. 70 of the Contract Act. The defence of the Provincial Government, inter alia, was that there was no valid and bind ing contract and s. 70 had no application. The trial Judge