Sri Navaneethaswaraswami Devasthanam vs The State of Madras by the Secretary to Government, Revenue Department

K. Veeraswami, J.—This petition for certiorari turns on the scope of the Second proviso to Article 31-A(1) of the Constitution of India.

This was one of petitions in the batch disposed of by Subbachariar v. State of Madras (1967) 1 M.L.J. 206. But, because the scope of that

proviso did not arise in the rest of the petitions, we have considered this petition separately.

Sellur village of Ekabhogam Mirasu was notified and taken over under the provisions of Madras Act XXVI of 1963. As a result of prolonged

litigation, the result of which is to be found in Navanithaswarswami Devasthanam v. Ganapathi (1955) 2 M.L.J. 112, Navanithaswaraswami

Devasthanam v. Saminatha Pillai ILR (1958) Mad. 921 : (1958) 2 M.L.J, and A.S. No. 157 of 1957, the Devasthanam took possession of the

entirety of the lands comprised in the village. The State Government, in exercise of its powers u/s 52 of the Madras Public Trusts Act, 1961,

exempted the entire extent from the operation of the Act by two orders dated 21st December, 1963 and 29th June, 1965. This petition was filed

on 22nd September, 1965 to quash the notification u/s 1 (4) which was in September, 1965, of Madras Act XXVI of 1963 on the ground that it

did not provide for payment of market value as compensation for acquisition of the Inam village, but only provided for allowances of Tasdik u/s

32.

The argument for the petitioner is that the Second proviso to Article 31-A (1) applied to the entire extent comprised in the Inam village taken

over. It is said that though, by reason of the exemption granted by the Government u/s 52 of the Madras Public Trusts Act, the provisions of the

Act had no operation in respect thereto, nevertheless, in a sense, they should be regarded as lands within the ceiling. Alternatively, the submission

for the petitioner is that, in any case, the Second proviso to Article 31-A (1) is applicable to all lands in a village taken over which are under

personal cultivation.

So far as the point that the lands are within the ceiling limit under the Madras Public Trusts Act is concerned, we may at once say that it is

impossible to accept it. The effect of applying Section 52 is that the lands exempted will be free from the opinion of the provisions of the Act. It

clearly follows, therefore, that once that happens, the lands, to which the Act becomes inapplicable, because of the exemption, are entirely outside

the scope of any ceiling. In fact, no question of ceiling at all will arise in respect of such lands, for, ceiling arises because of and under the provisions

of the Act.

On the other question too, on the scope of the Second proviso to Article 31 -A (1), we are not impressed that it has any application to the lands

in Sellur village. The proviso is as follows ::

Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is

held by a person under his personal cultivation it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit

applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law

relating to acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market

value thereof.

In our view, having regard not merely to the language employed by the proviso but also the context in which the proviso was inserted by the

Seventeenth Amendment, it is, clear that it applies only to small holdings within the ceiling limit which is under a person''s personal cultivation.

Article 31-A itself is an exception to the general principles embodied in Article 31. The Second proviso figures as an exception to the exception.

That is to say, though market value is not the criterion for purposes of assessment of compensation for estates taken over under the enactments,

which have been included in the Ninth Schedule by the Seventeenth Amendment in the case of land within the ceiling limit applicable to a person

under any law for the time being in force it can only be acquired on payment of compensation at a rate which shall not be less than the market

value. The purpose is obviously to protect small ryots or quondam landholders in possession of limited extents of lands within the ceiling under the

law prevailing in the particular area which is under his direct cultivation. It also seems to us, in the context of the Seventeenth Amendment, which

put in the Second proviso and also a number of enactments in the Ninth Schedule, that for the application of the Second proviso, among other

things, two things are essential; (1) acquisition within the meaning of Article 31 and (2) of lands within the ceiling limit. The ceiling limit has not been

prescribed by Act XXVI of 1963. That has been done only by the Madras Public Trusts Act. But, as we said by reason of the exemption granted

by the Government the Act is inapplicable to the land. Further the Madras Public Trusts Act itself is not one which provides for acquisition of lands

as such. We are of the view, there fore, that the petitioner is not, on that ground too, entitled to invoke the benefit of the Second proviso to Article

31-A (1) of the Constitution.

The view that we have expressed as to the scope and applicability of the said proviso seems to receive support also from the observations of

the Supreme Court in I.C. Golak Nath and Others Vs. State of Punjab and Another, . Referring to the scope of the proviso, Hidayatullah, J. as he

then was observed:

The sum total of this amendment (the Seventeenth Amendment) is that except for land within the ceiling, all other land can be acquired or lights

therein extinguished or modified without compensation and no challenge to the law can be made under Article 14, 19 or 31 of the

Constitution....There is no kind of agricultural estate or land which cannot be acquired by the State, even though it pays an illusory compensation.

The only exception is a Second proviso added to Article 31-A (1) by which lands within the ceiling limit applicable for the time being to a person

personally cultivating his land may be acquired only on paying compensation at a rate which shall not be less than the market value. This may prove

to be an illusory protection. The ceiling may be lowered by litigation....My brother Shelat and I described the device as a fraud upon this proviso,

but it is obvious that a law lowering the ceiling to almost nothing cannot be declared a fraud on the Constitution. In other words, the agricultural

landholders hold land as tenants-at-will. To achieve this a large number of Acts of the State Legislature have been added to the Ninth Schedule to

bring them under the umbrella of Article 31-B.

Though these observations were made in a different context, they were concerned with the scope and effect of the Second proviso. If the

proper construction of the proviso is as suggested for the petitioner, the proviso should have been entirely differently worded, and further, it would

have defeated, to a large extent, the purpose of Article 31-A. The construction sought to be placed on the proviso entirely ignores the words ::

any portion of such lands as is within the ceiling limit applicable to him under any law for the time being in force.

We consider, therefore, that the notifications of the Inam village cannot be quashed.

The petition is dismissed with costs. Counsel fee Rs. 100.