GODAVARI SUGAR MILLS LTD. AND ORS.

S. B. KAMBLE AND ORS.

March 7. 1975 [H. R. KHAN.'iA, P. N. B1IAGWAJ'J AND P. K. GOSW,\J\IJ, JJ.]

Mllharashtra Agricultural Land,- (Ceilings aiul Holdi11gs) Act, (27 of 1961) as amrnded by Acts of 1968, 1969 and 19i0-Prbicipa/ Act i11ci11ded in rhe Nin//; .\rhedu/e-Amending Acts if prolected by Art. 31A or 31B.

The l\faharashtra Agricultural Lands (Ceilings on Holdings) Act .1961 t:ame into force on fanuary 26. 1962.

The constitutional validity of ihe At wa.~ challcngcJ in the High Court and 1he High Court held that the provisions of the

At. other than s. 28, were a measure of agrarian reform and were protected by Art. 3 lA of the Con•titution .. St; ction 28, however, was held to be violative of .Art. 14.

In_ 1964, the Constltu.!Ion \17th Amendme'!t) Act wu passed, as a rewlt of which the 1961 Act, mcludmg s. 28. was included in the Ninth Schedule. The 1961 Act was amended by various Maharashtra Acts namely

Ac! .16 of i968, 33 of 1968, 37 of 1969 and 27 of 1970. The cont:.tutional validity of the 1961-At as amended by the vari_o1!S Maharashtra Acts; was again challenged but the High Court upheld the validity of the Act u mnended on the ground that it was protected by Arts. 31A and 31B of the Constitulfon. 0 Dismissing the appeal to this Court,

liELD: Though the various amendments to the Act of 1961 were not protected by Art. 3 IB, they are, however. protected by Art. 3 IA of the Constitution. [898 C-D; 907 A-Bl ·

1 (a) The object of Art. 31B is to give a blanket protection to the Acts and Regulations specified in Ninth Schedule and the provisions of those Acts and Regulations, against any challenge to them on the ground that they are inconistent with, or take away, or abridge, any of the fundamental rights in Part m.

This immunity would be available notwithstanding any judgment, decree Or order

of any court or tribunal to the contrary! [S96 H-897 Bl

(Ii) The specification of an Act or. Regulation in the schedule would not prevent the competent legislature from repealing or amending it.

The inclusion of the Act or Regulation in the Ninth Schedule would protect not only the principal Act or Regulation which is included in the Mnth Schedule but also the amendments whi:h have been made therein till the date of she,/1 inclusio11 even though the constitutional amendment by which it is included in the Ninth Schedule refers only to the Principal Act or Regulation and not to the amendments made till then. [897 C-D]

(c) But the inclusion in the Ninth Schedule would not extend the protection lo any amendmen'.s made in the Act or Regulation after the date of its inclusion in the Ninth Schedule. The inclusion of the A:t or Regulation in the Ninth Schedule is brought about mtly by means of an amendment of the Constitution by the prescribed majority in each house of Parliament under Art. 368. It is for the prescribed majority in each house, to decide whether a particular Act or Regulation should be inserted in the Ninth Schedule. In cate the PTO!ection afforded by the Article is ex'.ended to amendmen11 made In tbe /i;; t or Regulation subsequent tci its incusion in the Shedule., the ~It would be •. f!iat C\'C!l those proviswns would en1oy the protection which were never scrutinised and could • not, in !he very nature of things. have been scrut; inised by the presen'bed majority vested with the power of amending the Constitution. It would be tantamount to giving a power to State Legislatures to amend tlte Constitution in such a way as wolllcjl enlarge the contents of Ninth Schedule. {897 'D-H]

(d) The protection of Art: 31B.cannot also be .invoked .for a new provision inserted by amendmcn.t after mlu~1on of the 'Act m '.h.e Nmth Scedule on !he ground that it is ancillary or mc1dental to tie rrov1S1ons to which protectmn

has already been afforded by such inclmion. Any provision which has the effect of making an inroad into the guarantee of fundamental rights s(10uld be construed very strictly and it would not be permissible to widen the scope of such a provision or to extend the frontiers of the protected zone beyond what is warranted by the language of the provision. The entitlement to protection being confined only to the Acts, Regulations and provisions which are expressly mentioned in that Schedule, it cannot be extended to provisions which were not included therein.

This Jhinciple would hold good irrespective of the fact whether the provision. to which entitlement to protection is sought to be extended, deals with new substantive matters or whether it dals with llllatterR

which are incidental or ancillary to those already protected. [897 H-898 DJ

Sri Ram Ram Narain Mcdhi v. State of Bombay [1959] Supp. 1 S.C.R. 489, Saiian Singh v. State of Raiafthan; (1965] 1 S.C.R. 933; State of Orissa v.

Cha11dra Sekhar Singh Bhoi etc. [1970) I S.C.R. 593 anti State of Maharashtra etc. v. Madhavrao Damodar Pati/chand & Ors., [1968) 3 S.C.R. 712, followed.

(e) The case of Raman/al Guiab Chand Shah v. State of Guja.-at [1969] 1 SCR 42 does not lay down, as had been assumed by the High Court. that if an amending Act does not cover a new field but contains only provisions which arc incidental and anci!Jary to those which are protected by Art. 3 IB, the Amend. ing Act would also get the protection of that Article. [900 C-D] 2 (a) The pr; nciples applicable in order to find out whether an impugned enactment for acquisition of land is protected by Art. 3 IA are :

(i) Acquisition of land by the State should be for the purpose of agrarian D refom1. The scope of a1; rarian reform is wider than that of land reform.

(ii) Acquisition of land by taking it from a senior member of the family and giving it to a junior member is not a measure of agrarian reform.

(iii) Acquisition of land for urban slum clearance or for a housing scheme in the neighbourhood of a big city is not a measure of agrarian reform.

(iv) Acquisition of land by the State without specifying the purpose for which land is to be used is not a measure of agrarian reform. ( v) But scbenie; of rural development envisaging not only equitable distri bution of land b•1t also raising of economic standards and the bettering of rural health and soial conditions in the villages, by making provision tor the assignment of land to a Panchayat for the use of the general community or for hospitals, s1:hools, manure pits, tanning grounds etc. which ensure for the benefit of the rural population, constitu.te a measure of agrarian reform.

(vi) Provision for reservation of land for promotion of agriculture it:ad for the welfare of agricultural population constitutes a measure of agrarian reform.

(vii) If the dominant and general purpose of the scheme is agrarian nform, the scheme may provide for ancillary prov:isions to give full effect to the scheme.

(viii) A provision fixing ceiling area and providing for the disposal ·f the surplus land in accordane with rules to implement a programme of agrarian reform is a measure of agrarian reform. [905 A-OJ

Kavalappara Kottarathl Kochuni & Ors. v. The State of MadrM & A111-. (1960] 3 SCR 887; P. Vajravelu Muda/iar v.

Special Collector [1965) 1 SCR 614; Ranjit Singh & Ors. v. State of Puniab & Ors.

[1965] 1 SCR 82; Ba/madies Plantations Ltd. v. State of Tamil Nadu [1973) 1 SCR 258: Kanan Devan Hills Produce Co. Ltd. v. The State of Krrala & Anr. (1973] 1 SCR 356 and State of Kerala &: Anr. v. Gwalior Rayo11 Silk Mfg. (Wvg.) Co. Ltd. etc.

[1973] 2 OCC 713, and Fida Ali v. Stare of Jammu and Kashmir, [19141 2 SCC 253 referred In.

(b) In !he ]:f!"escnt case a conspectU3 of the different provisions of the '.mpugned Act goes to show that the main purpose of the Act was to prevent concentration of agricultural land in the hands of a few.

Section 3 ol' the impugned Act imposes a ceiling on holding of agricultu.ral land.

S. 4 provides that no person shall hold land in excess of ceiling.

Under s. 14 inquiry is to

GODAVARI SUGAR MILLS v. s. B. KAMBLE (Khanna, J.) 88 7

e made for determining such excess. On completion of inquiry a declaration is made under s. 21 giving particulars of the area which is delimited as surplus land.

Possession of such surplus land is then taken by the Colle; tor on behalf o! the s.tate Government free of all encumbrances.

Section 27 provides for the distnbut10n of surplus land, and s. 28 makes a special provision in respect of lands taken over from industrial undertakings to ensure efficiem cultivation and

ontinued supply of raw-material for those undertakings.

For such a purpose, if the State Government considers it necessary to ma:.ntain the integrity of the land acquired from the industrial undertaking in one or more compact blocks, it might, subject to terms and conditions, grant the land or any pan thereof to a joint farming society or a member thereof consisting, as far as possible of the persons specified in that section. (905 G-906 CJ '

(c) From the preamble to the Amending Act 27 of 1970 and the counter affidavit filed on behalf of the State Government it appears that effo11s to set up a joint farming society as contemplated by s. 28 of the Act did not bear fruit in spi~ of the fact that the tim~ for >etling up of those societies was extended.

The State Government also found that sh@rt extensions of time was hampering the full and efficient use of tre land for agriculture and the Maharashtra State Farming Corporation, which hact been cultivating that land for the interim period, could not undertake any plans or schemes for the improvement of the land because of the short extensions. The State Government, therefore, decided that the cultivation of the land might be continued wi.h the Maharashtra Stat~ Farming Corporation on a permanent basis. In arriving at this decision the State Government was also influenced by the consideration that the implementa-' tion of the joint farming spcieties &:heme would lead to fragmentation of thP. land and hamper its economic development and for implementing this purpose. ". 28-IAA was inserted in the Act anC: the other amendments of the principal Act were made, by Act 27 of 1970. [906 C-F]

(d) It could not be contended that only distribution of acquired land among landless persons dr poor peasants would constitute agrarian reform, and that, when lands of industrial undertakings are not so distributed but had to he cultivated by the State Farming Corporation, the acquisition cannot be considered to be a measure of agrarian reform.

The acquisition of land held by industrial undertakings is not to be taken in isolation but as part of the general scheme and object of the Act that there should be a ceiling on private holdin!li.

S. 28-lAA has to be taken in its context and tiog with the other provision.~ of the Act.

Ordinarily distribution of acquired surplus land of individuals among landless persons and poor peasants is part of the scheme of agrarian reform. The legislature here has made special provision in respect of land held by an industrial undertaking, in order to prevent the fragmentation of a large tra.ct of land and to subserve the purpose of supplying raw-material to the undertaking and provided that it should be cultivated by a State OWJ.led farmmg corporation. Acquisition simpliciter of land by the State to augment its re<; ourceil and without specifying the purpose for which it is to be used after acquisition would not get the protection of An. 3 IA. To decide the question of protection. the general scheme of the statute containing the provision for the acqui, ition, the object of the acquisition, and the reasons which weighed for retaining tho land with the State or its corporation without distributing it among the landlei; s persoEs and poor peasants, must be considered. The. concept of agrarian reform is not static and with the change of times, u.nder the impact of fresh ideas and in the context of fresh situations, the concept of agrarian reform is bound to acquire new dimensions. A measure which has. the effect of improving the rural economy or promoting rural welfare would be a part of agrarian reform.

The fa:t that part of the acquired land would remain vested in the State Government or a State owned farming corporation would not therefore militate against the object of agrarian reform, if the continued vesting of the land in the Gove,.ment or the corporation is a part of the general scheme of agrarian reform and there is no oblique deviation from the avowed purpose, especially when it is in the interest of rural economy that the compact area instead of being fraogmcnted by distribution. be preserved as one compact block cultivated by the State owned farm'..ng corporation. [907 E-908 CJ

Ra11jit Singh v. State of Punjab [1965] 1 S.C.R. 82. followed.

SUPREME ~T llRPORTS. £19751 3 S.C:.ll.

C1v1L APPELLATE JuR1so1cnoN : Civil Appeal No. 1426 of 1974.

From the judgment and order dated the 315/8-4-74 of the Bomb11y High Court in S.C.A. 1271 /tj8.

A. 1 K. Se11 M. C. Bhandare, D. M. Popat, S. I.

Thakore, P H. f'arek and Sunanda Blumdare, for the appellant.

n De, Attorney General of India and M. N. Shroff, for the ents l-4.

I. . Shroff, and J. C. Bhatt, for respondent No. 5.

The Judgment of the Court was delivered by :

KHA NA, J.

The short question which arisl:S in this appeal filed on cert cate by Godavari Sugar Mills Ltd. ad its two. sharehold~ directors against the judgment of the Bombay High Court is the constitutional alidity of Maharashtra Agricultural Lands (Ceiling on H@ldings) Act, 1961 (Maharashtra Act No. 27 of 1961) (hereinafter referred t.o as the principal Act) as amended by Maharashtra Acts Nos. 16 pf 1968, 33 of 1968, 37 of 1969 and 27 of 1970. The High Court ha$ upheld the validity of the Act on te und that it is Jro

ected by article~ 31A and 31B of the Coristitut1on.

The priricipal Ac~ came into force. on January 7:6 1962: ccord ing to its long title, 1t was an act to impose a maximum llnut (or c:eiling) on the holding of agricultural land in the State of Maharashtra; to provide for the acquisition and distribution of land held illl excess of such ceiling; and for matters connected with the purposes aforesaid. Section 3 of the Act deals with ceiling on holding of agricultural land. According to that section, in order to provide for the more equitable dis•ribution of agricultural land amongst the peasantry of the State of Maharashtra (and in particular, to provide that landless persons are given land for personal cultivation), on the commencement of the Act, there shall be imposed to the extent, and in the manner hereinafter provided, a maximuin limit (or ceiling) on the holding of agricultural land throughout the State. Section 4 pr~ vid_es that. no perso~ shall hold land in excess of the ceilinq area, while section 5 specifies as to what area would constitute ceiling area under each class of land in specified local area. Returns have--to be submitted to .the Collector in respect of surplus land under section

12 of the Act. Section 14 gives power to the Collector to hold an enquiry for de•ermining as to what area in resoect of the holdirtJ( of a person should be declared to be in excess of the ceiling area.·· On completion of tlte enquiry if the Collector finds tlie holding of a per-son in excess of thi! ceiling area the Collector shall make a declaration under section 21 of tlie Act about the area, descrin'inn and full particulars of the land wliieh is delimitPd ns_sumlus t:ind. The dechral'ion

~~ ttien notified. under section 2 t (2) in the oinc; al Gaz .. tte. Accnrdme to b-sectton ( 4.) of. •hat section. the Collector. sliall after the pahlieatiOn of the nntt?cation under sub-se<:tion.(2) tl<e in the ore~ cin"bed manner possession of the land which is deliinited as surplus

GODAV, ARJ SUGAR MILLS \', s. B. KAMBLE (Khanna, !.) Is 8 9

land. lt is further provided that the surplus land shall with eff~ from the date on wiuch tne possession thereof is taken a:. aforesai.d be, ( deemed to be acqwred by the State Government for the purp<>ses of' the Act and shall accord:ngly vest free from ail encumbrances in the State Govrnmn l. Section 2 7 makes provis10n for the distribution of the surplus L.inJ. S2ction 28 of tne Act makes provision in respect of land taKen over from inuustnal undertakmg to ensure eflicient cultivation and con•inucd supply of raw material. The sec.ion as it stood before its amendment by Act 33 of 1968 read as under:-

"28. ( 1) Where any land hcid by an industrial undertaking is acquired by, and vests, in the State Government under section 21, such land being land which was being used for the purpose of producing or providing raw mateiiaJ for the manufacture or production of any goods, articles or commodities by the uudertaking, the State Govern'ment' shall t(tkc particular care to ensure that the acquisition of the land does not affect adversely the production and supply of raw i;!aterial from the land to the undertaking.

(2) Notwithstanding anytiting contained in section 27 but subject to any rules made in this behalf for the purpose of so ensuring the continuance of the supply of such raw material to the 1mdertaking, and generally for the full and efficient use of the land for agriculture and its efficient management, the State Govemment-

( a) may, if it is in the opinion of that Government necessary for the purpose aforesaid (such opinion being formed after considering .the: representation '>f persons interested therein) maintain 'he integrity o~ the area so acquired, in one or more compact blocks, and

(b) may, subject to such terms and conditiom (including in particular, conditions which are calculated to ensure the full and continued supply of raw material to the undertaking at a fair price), grant the land or any part thereof to a joint farming society (or a member thereof) consisting as far as possible, of-

(i) persons who had previously leased such land to the 1.mdertaking,

(ii) agricultural labour (if any) employed by the undertaking on such land, ( iii) technical or other staff engaged by the undertaking on such land, or in relation to the production or supply of any raw ma•erial, ' \

(iv) adjoining landholder who arc small holders .. ,

( v) landless pers0ns :

Provided that, the State Government may-

(a) for such period as is necessary for the setting up of joint farming societies as 11foresaid being not more than

three years iii the first instance (extensible to a furter period-not exceeding two years) from the date of taking

posession of the land, direct that the land acqmred, or any part thereof, shall be cultivaed by one or more farms .ruo or managed by the State, or by one or more corporations

(inc; uding a company) owned or controlled by the State :

< b) grant to the land.ord so much of the surplus land leai; ed by him to the under aking, which together wi.h any other land held by him does not exceed the ceiling area (but if the landlord be a public trust and the major portion of the income from the land is being appropriated for purposes of education or medical relief, grant the en'ire land to the public trust) on condition that the landlord, or as the

ce may be, the public trust lease the land to a farm or corporation described in clause (a) aforesaid, and thereafter, in the case of a landlord (not being a public trust) that he becomes a member of the joint farming society, and in the case of a public trust, that it leases the land to a joint farming society.

(3) The State Government may provide that,-

(a) for the breach of any term or condition referred to in clause (b) of sub-section ( 2), or (bl if the landlord to whom the land is granted fails to lease the land to the farm or corporation or to become a member of a joint farming society; ( c) if it c:onsiders after such inquiry as it thinks fit, that the production and supply of raw material to the undertaking is not maintained at the level or in the manner which, with proper and efficient management it ought to be maintained, or ( d) for any other reason it is undesirable in the interest of the full and efficient cultivation of the !and, that tht joint farming socfoty, should continue to cultivate the land, the grant shall, after giving three months' notice or termination thereof and after giving the other party reasonably opportunity of showing cause, be termina'ed, and the land resumed. Thereafter, the State Government may make such other arrangements as it thinks fit for the proper cultivation of the land and main'enance of the production and supoly of raw material to the undertaking. '

At this stage we may advert to the facts giving rise to the present appeal. The appellant company OW!ls two fac'ories for the manufacture f sugar and allie~ P!oducts. The company held large areas ?f land '.n Ahmednagar district for the cultivation of sugarcane for tt.9 factones. On Marcl-i 1, 1963 Special De11uty Collector respondent No .. 2 declared an area of 8468 acres 26t gunthas in village Sakarwad1 held by lhe appellant company to be in excess of the ceiling

GODAVARI SUGAR MILLS v. s. B. KAMBLB (Khanna, I.) 8 9 1

aea. On March 7, 1963 Special Deputy Collector respondent No. 1 passed an order declaring 2677 ares 16. gunthas of appelant-com pany's land situated in Lakshnuwach to be m excess of the ceilmg area.

Thus a total area of 12146 arres ; guntha was declared to be surplus. Appeals against the aforesaid oroers were filed by the appellant company to the Maharashtra Revenue Tnbunal.. The appellants & ome others also filed petitions challengmg the const1tut10al valld1cy of the principal Act. A Division Bench ot the Bombay High Court as per judgment dated October 25, 1963 delivered in a petition file~ . by another party upheld the constitutional vlidity of all the prov1s1onii of the principal Act, except section 28 which was struck down. lt w~ held that the provisions of the Act other than section 28 were a measure of agr\).rian reform and as such protected by article 31A of the Constitution. Section 28 was held to be violative of article 1 .. of the Constitution.

On June 20, 1964 the Constitution ·(Seventeenth Amendment) Act was passed. As a result of the Seventeenth Amendment of the Constitution the principal Act including section 28 was included in the Niruth Schedule. The petition filed by the appellants challenging the validity of the principal Act was in view of the Seventeenth Amendment dismed by a Division Bench of the Bombay High Court on March 10, 1965. The appellants came up in appeal to this Court against the judgment of the Bombay High Court but that appeal was dismissed by this Court on April 10, 1968. The judgment of this Court is reported in (1968) 3 SCR 712. It may be stated that a stay order was made during the pendency of the appeal filed by the appellants. After the dismissal of the appeal on application filed by the . respondents, the counsel for the appellants gave an undertaking on April 26, 1968 to deliver possession of 10315 acres of land on or before May 2, 1968. Possession of 10315 acres of land in pursuance of the above undertaking was h'lnded over by the aPpCllant company in May 1968. As the joint farming societies referred to in section 28 had not yet been formed, till such formation the said land along with e other land taken over from others in similar circumstances was &:iven for cultivation to the Mahara.htra State Farming Corporation Limited respondent No. 5. The said Corooration was incorporated on March 6, 1963 under the Companies Act and is owned and controUed by the State of Maharashtra respondent No. 3.

On May 17, 1968 amending Act 16 of 1968 was published. A• a result of th~ amending Act section 28-lA was inserted in the principal ct. Th.is .section extended the pl'.dod for the setting up of join! farming soc1ct1c<; contemplated by sction 28 of the nrincivrrl Act by one year. It also empowered the State Government to make a scheme for th<~ initcrim Deriorl. On June 26. J 96g the anpeJ!an's file:] petition under :irtir.le 226 and 227 of the Constitution for r. declaration that the pri nci !)al Act as amended hy Act 16 of 1968 was unconstitutional. !nterim iniu:iction wa<; issu::d restraining the re, oondent• from t3k-

1g any steps under the amcded Act on June 27, 1968. The injuc t10n was thereafter vacated m respect of 10315 acres of land.

The appellants also gave an undertaking that they would not pres> their

8 92 SUPllEME COURT llEPORTS

[1975) 3 S.C.R.

appeals bcfor.: the Tribunal in respect of 10315 acres of land.

Aoordingly, on July 22, 1968 the MaJurashtra Revenue Tribuna1l dismissed the appeals of the appellants in respect of 10317 acres 3'7 gunthas of land. The appeals regarding the rest of the land measurin:g

1829 acres were kept pending in view of the injunction issued by th~ High Court.

On December 28, 1968 amending Act 33 of 1968 was published.

Section 2 of the amending Act added an cxplanaion in section 28 as

uuder:

"Explanatio11.-For the avoidance of dou!>t, it is hereby declared that a producer of raw material (being a person, a joint farming society, or corporation) (including a company) referred to in sub-section (2) shall be liab e to supply raw material to the undertaking concerned only on that undertuling agreeing to accept such supply at the fair price."

The• amending Act also introduced section 28-lB, the material part Of which was as under :

"28-IB. The supply of raw material by any proclucer ·(being a person, a joint farming society or corporation) (including a company) to the undertaking during any season shall be regulated, and the fair prices at which such supply is to be made to the undertaking shall be fixed, in accordance with the provisions of the Third Schedule."

Clause 3 of the Third Schedule provided for the formation ot a com·

mittee for fixation of the fair price.

On July 26, 1969 amending Act 37 of 1969 was published. The: / amending Act made changes in the Third Schedu'e and provided for the setting up of a Board for fixation of the fair price of the raw material supplied to an undertaking under the principal Ac ..

Amending Act 27 of 1970 was published on May J 9, 1970. The long preamble of the Act reads as under :

"Whereas, section 28 of the Maharashtra Agricultural La:n<ls

(Ceiling on Holdings) Act, 1961 inter alia provides that the State Government shall take particular care to enure that the acquisition of land held by :in industrial undertaking (being land 1vhich was being used for the purpose of oroducing or providing raw material for the manufac'ure or production c.f any goods, articles or commoclities by :he undertaking) does not affect adversely the oroduction and su'"lnlV of raw material from rnch land to the U'lde, taking: and that for the puroose of so ensuring the continuance of surmly of such raw material to the undertaking, and gerierally for th~ full and efficient use of the hlniJ for a<rriculture anri its efficient

mana.e; emnt, the Sta•c Government mav maintain the integrity of the area so acquired in one or more compact blocks,

J ) 89.'l GODAVARI SUGAR MILLS I'. s. B. KAMBLE ( 1a11na, '

and may grant the land, or any part throf, to a joint farming society (or a member thereof) cons1stmg of persons referred to in clause (b) of sub-section (2) of that section;

And \.Vhcrcas, that section iuter alia further provide-, that for suh prioJ. as i<> necessary for thl: set :ing up or

joint farming sociclics as provided ill sub-section (2) of that section ( bing not more than five years in the aggregate from th.:. date of taking possession of tht! land), the land acyuircd or ~1ny part thereof should be cutivate:.l by one or more farms run or managed by •he State, or by one or more corporations (in.eluding a company) owned or controlled by the State; c And whereas, the State Government have accordingly

constituted the Maharashtra State Fanning Corporation Limited (a company formed and registered under the provisions of the Companies Act, 1956)t for managing the farms till the setting up of the joint farming societies aforesaid;

And whereas, efforts so far made in the setting up of such societies including the efforts made for the setting up of such societies under the Maharashtra Agricultural Land (Ceiling on Holdings) Setting up of Joint Farming Societies Scheme, 1968, made under section 28-lA of the

said Act have not borne fruit, and the periods for the setting up of such societies are due to expire between the months of May and October 1970;

And whereas, in the light of experience mentioned aforesaid, it is not possible to say that any such joint farming societies can be set up at all;

And whereas, short extensions of time for the setting up I of such joint farming societies is hampering the full and efficient use of the land for agriculture and its efficient management for the reason that the Maharashtra State Farming Corporation is thereby prevented from undertaking any plans or schemes for the improvement of the Land and it is finding it difficult to carry out the objects of clause (b) of sub-

section (2) of section 28~ ·

And whereas, most of the undertakings have also represented to the State Government that cultivation of the land may be continued with the Maharashtra State Farming Corporation on a permanent basis for the reason that implementation of the Joint Farming Societies Scheme aforesaid will lead to fragmentation of land and that since the ceonomic development of land is part of agrarian reform,

the continuation of the management of the lands by the

said Corporation will subserve the purpose of agrarian reform in consonance with the object of the said Act;

And whereas the State Government after carefully considering the question, in particular, in the light of what has been set out hcrinabove, is also of opinion that the cultivation of the land should be con, inued with the Maharashtra State Farming Corporation on a permanent basis;

And whereas, it is necessary to amend the said Act for the purposes aforesaid, and also for certain other purposes hcrcinaf.cr appearing; it is hereby ena:cted in the Twenty-first Year of the Republic of India as follows :-"

Sections 2 and 3 of the amending Act inserted additional words in the long title and preamble of the principal Act so as to include the words :

"also to provide that the lands taken over from undertakings and the integrity of which is maintained in compact blocks for ensuring the full and efficient use of the land for agri~ culture and its efficient management through corporations (including a company) owned or controlled by the State, be granted to such corporations or company;"

Section 4 of the amending Act amended section 21 of the principal Act by providing in a newly inserted susection (5) that where pas-- session of any land delimited as surplus is handed over by the holder in pursuance of an undertaking given by him in any court, and the appeal filed by the holder against the declaration of that land as sur plus has been subsequently withdrawn or dismissed, the land, notwithstanding anything contained in sub-section ( 4), shall with effect from the date on which the possession thereof is taken by the Col lector, be deemed to be duly acquired by the State Government for the purposes of the Act.

Section 7 of the amending Act deleted section 28-1 A of th<: principal Act. Section 28-1 AA was inserted by section 8 of the amending Act, Sub-sections (1) and (2) of section 28-lAA read as under :

"28-lAA. (1) The State Government may, by notification in the Official Gazette, not later than ninety days from the commencement of the Maharastra Agricultural Lands (Ceiling on Holdings) (Amendment) Act, 1970, grant the surplus land taken over from the industrial undertakings and referred to in section 28 and which is being cultivated by one or mere c0nJ0ratk1ns (including a company) owned and contro!lecl by the State to such corporation, or corporations, as the case mav h~. suhiect to uch terms and conditions, including in particular, the condition of maintaining the interritv of the '>'Jrc1us land. in o; ie or more comnact blocks,

and conditions which are calculated to ensure the fu11 and continued suoolv of raw material to the undertakinr at a fair Price.

On the (!TRnt of such surnlus land to one or-more corporations ns aforesaid, the provisions of section 28 so far as they provide for setting up of ioint farming societies shall not apply in relation to such surplus land.

GODAYARI SUGAR MILLS v, s. ll. KAMBLE (Klla1111a, J.) 8 95

(2) The State Government may provide that,-

(a) for the breach of any term or condition referred

to in sub-section (1), or

(b) if it considers after such inquiry as it thinks fit, that the production and supply of raw material to the undertaking is not maintained at the ievel or in the manner which, with proper and efficient manag(!mcnt it ought to be maintained, or

'c) for any other reason it is undesirable in the in-

~· terest of the full and efficient cultivation of the land, that the corporation, (including a company) should continue to cultivate the land, uie grant shall, after giving three months' notice of termination thereof, and after giving the corporation reasonable opportunity of showing cause be terminated, and the land resumed. Thereafter, the State Government may itself take steps by running or managing one or more. farms for the proper cultivation of the land and maintenance of the production and supply of raw material to the undertaking at a fair price.

Explanation.-For the avoidance of doubt, it is hereby deciared that a producer of raw material being the corporation (including a company) or the State Government referred to in this section shali be liable o supply raw material to the undertalcing concerned only on that undertaking agreeing to accept such supply at the fair price." It may be mentioned that the principal Act has also been amended by Maharashtra Act 50 of 1973 which was published on December 22,

1973. Petitions challenging the validity of the principal Act as amended by Act 50 of 1973 are stated to be pending in the High Court.

The High Court in the case which is the subject matter of the present appeal allowed amendment of the petition so as to include challenge to the principal Act as amended by Act 27 of 1970. It may also be stated that before the amendment made by Act 27 cf 1970, the principal Act was amended by various amending Acts, besides those to which reference has already been made, but we are not concerned with those other amending ActS.

To complete the narration we may also refer to the Maharastra Agricultural Lands (Ceilings on Holdings) Grant of Surplus Lands Taken Over from Industrial Undertaking Order, 1970 which was issued by the Maharashtra Government on August 13, 1970 in exercise of the powers conferred by section 28-1 AA of the Act.

Clause 2 ( c) of the Order defines "Corporation" to mean the Maharashtra State Farming Corporation Ltd.

Oause 3 of the Order reads as under :

"Grant of lands to Corporation.-Tbe lands specified in column 3 of the schedule hereto (being surplus lands taken ove: from the undertakings referred to in section 28 and specified in c_olumn 2 of that schedule) and which are being culti-

8 9(i

SUPREME COURT REPOR!S !197 51 3 S.C.Fl.

vatcd by the CorpGration are hereby granted to the Corporation on payment of occupancy price and on the terms and conditions specified in this Order."

Clause 4 of the Order specifies the conditions for main! .ining the integrn y llf st:rpluo lanJ, wh.k clause 5 deal<; with conditions so as to en- :; w-e foll and continued supply of raw material to industrial unde11akings.

Claus:: 6 provides for conditions as to termination of grants.

By the judgment under appeal the High Court, as already me11- 1ioncd, has upheld the validity of t11e impugned Act on the ground that it is protected by articles 31 A and 3 lB of the Constitution.

Mr. Sen on behalf of th" appellants has at the outset assailed tfo .. 1 finding of the High Court in so far as it has held the impugned Ac:t to be protected by article 31 B of the Constitution.

 The High Court while affording the protection of article 31B ()f the Cotion to the impugned Act has referred to the fact that tb.e _ _prinefpal Act including section 28 was inserted in the Ninth Schedule to ithe Constitution as item No. 34 by tlte Seventeenth Amendment to the Constitution.

The submission advanced on behalf of the respondents that the amending Acts of 1968 and 1970 were only ancilliary or incidental to section 28 of the principal Act and as sucl~ the amended Act was protected under article 3 lB found favour wici'i

the High Court. The High Court accordingly observed : #

"W c, therefore, hold that section 28-t A, and section 28lAA arc only ancillary or incidental to section 28 of the principal Act and section 21 ( 5) is also ancillary or incidental to section 21 and, therefore, all these three amendments are protected by article 31B of tlte Constitution."

We have given the matter our consideration and are unable to agre;: with the above conclusion of the High Court. Article 31B reads m• und1er:

''3 IB. Without prejudice to the generality of the provi~ sions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the grountl that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any oompetent legislature to repeal or amend it, continue in force." ·

The above article was inserted in the Constitution by the First Amendment. The object of this article is to give a blanket protection to the Acts and Regulatioris specified in tlte Ninth Schedule and the oroviions of those Acts and Regulations against any challenge to tl 0se Acts.

GODA\'.ARI SUGAR MILLS v. s. B. KAMBLE (Khanna,!.) 897'

Regulations or the provisions thereof on the ground that they are inconsistent with or take away or abridge any of the rights conferred by

Part III of the Constitution.

The result is that howsoever violative of the fundamental Jjghts may be the provisions of an Act or Regulation, once the Act or Regulation is specified in the Ninth Schedule it would not be liable to be struck down on that score. This immunity against the above challenge would be available notwithstanding any judgment, decree or order of any court or tribunal to the contrary. The effect of article 3 lB, however, is not to prevent challenge to an enactment on the ground that it is beyond the leg; slative competence of the legislature which enacted it It is also plain from the language of the article that the specification of an Act or Regulation would not prevent the competent legislature to repeal or amend it.

The protection and immunity afforded by article 3 lB is, however, restricted to the provisions of the Act or Regulation as they exist on the date the Act or Regulation is included in the Ninth Schedule.

The inclusion of the Act and Regulation would protect not only the principal Act or Regulation which is included in the Ninth Schedule but also the amendments which have been made therein till the date of its inclusion in the Ninth Schedule, even though the constitutional amendment by which the Act or Regulation is included in the Ninth Schedule refers oialy to the principal Act and Regulation and not to the amendments thereof.

The protection or immunity enjoyed by the Act or Regulation, including the amendments thereof till the date of its inclusion in the Ninth Schedule would not, however, extend to the amendmC:11ts made in the Act or Regulation after the date of its inclusion in the Ninth Schedule.

The reason for that is th>at the inclusion of a Act or Regulation in the Ninth Schedule can be brought about only by means of an amendment of the Constitutid11.

The amendment of the Constitution can be carried out in accordance with article 368 of the Constitution.

Such a power is exercised not by the legislature enacting the impugned law but by the authority which makes the constitutional amendme.1t under article 368, viz.. the prescribed majority in each House of Parliament.

Such a power can be exercised in respect of an existing Act or Regulation of which the provisions can be scrutinized before it is inserted in the. Ninth Schedule. It is for the prescribed majority in each House to decide whether a particutar Act or Regulation should be inserted in the Ninth Schedule, and if so, whether it should be so inserted in its entirety or partly. In case the protection afforded by article 3 lB is extended to amendments made in an Act or Regulation subsequent to its inchision in the Ninth Schedule, the result would be that even those provisions would es.joy the protection which were never scrutinized and could i1ot in the very nature of things have been scrutinized by the prescribed majority vested with the power of amending the Constitution. It would, indeed, be tantamount to giving a power to the State legislature to amend the Constitution in such a way as would enlarge the contents of Ninth Schedule to the Constitution. The protection of article 31B can also not be exten, ded to a new provision inserted as a result of amendment on the grottnd that it is 11-:--564SCl/75

•<racillary or incidental to the provisions to which protection has already been afforded by including them in the Ninth Schedule.

Article 31B carves out a protected zone. It has inserted Ninth Schedule in the

Constitution and gives immunity to the Acts, Regulations and provisions specined in the said schedule from being struk down oa the ground of infringement of fundamental rights even though they are violative of such rights.

Article 3 lB thus excludes the operation of fundamental rights in matters dealt with by those Acts, Regula1 ions and provisions. Any provision which has the effect of making an inroad. into the guarantee of fundamental rights in the. very nature of things shqµlcj be construed very strictly, and it would not, in our opinion, be permissible to widen the scope of such a provision or to extend the frontiers of the protected zone beymd what is warranted by the language of the provision.

No Act, Regulation or provision would enjoy immunity and protection of article 3 lB unless it is expressly made a part of the Ninth Schedule.

The entitlement to protection being confined only to the Acts, Regulations and provisicMs mentioned in the Ninth Schedule, it cannot be extended to provisions which were not included in that schedule.

This principle would hold good irrespective of the fact whether the provision to which entitlement to protectiCJla is sought to be extended deals with new substantive matters or. D whether it deals with matters which are incidental or ancillmy to those already protected.

We are fortified in the above conclusion by th, c previous decisions of this Court.

In the case of Sri Ram Ram Narain Medhi v. State of Bombay(!) the Constitution Bench of this Court dealt with the question as to whether an amcndme'at made by an Act of 1956 would be

protected by article 3 lB if the 1948 Act in which that amcndme1.1t was made had been induded in the Ninth Schedule to the Constitutioa.

The question was answered in the negative. Bhagwati, J. speaking for the Court observed :

"The impugned Act which was passed by the State Legislature in 1956 was a further measure of agrari'an reform carrying forward the intentio 1as which had their roots in the 1948 Act, Having regard to the' comparison of the varicms . provisions of 1948 Act and the impugned Act referred to above it could be legitimately urged th•at if the cognate provisions of the .1948 Act were immune from attack in regard to their constitutionality, on a parity of reasoning similar pro\'.isioqs contai 1ned in the impugned Act, though they made further strides in the achievement of the objective of . a socialistic pattern of society would be simiJoarly saved. . That position, however, could not obtain because whatever amendments wen; made by the impugned Act in the 1948 Act were future laws within. the meaning of Art. 13 (2) of the Constitution and required to be tested on the self-same touchstO'ae.

They would not be in terms saved by Art. 3 lB and. would have to be scrutinized on their own merits before the courts came to the conclusion that they were enacted within the

(I) [1959] Supp. I S.C.R. 489.

GODA V, ARI SUGAR MILLS v. s. B. KAMB LE (Khanna, J.) 8 9 9

Cl1astitutional limitations.

The very terms of Art.

3 JB envisaged that any competent legislature w, ould have the power to repeal or amend the Acts and the Regulations specified in the 9th Schedule thereof and if •any such amendment was ever made the vires of that would have to be tested." To the same effect is the decision of this Court in the case of Saijan Singh v. State of Rajasthan (1). Gajendragadkar CJ. speaking for the majority observed :

"There is one more point to which we would like to refer.

Jn the case of Sankari Prasad(2) this Court has observed th•at the questioa whether the latter part of Art. 3 lB is too widely expressed, was not argued before it, and so, it did not express any opinion upon it.

This question has, however, been argued before us, and so, we would like to make it clear that the effect of the last clause in Art. 3 lB is to leave it open to the respective legislatures to repeal or amend the Acts which have been included in the Ninth Schedule.

In other words, the fact that the said Acts have been i1.1cluded in the Ninth Schedule with a view to make them valid, docs not mean that the legislatures in question which passed the said Acts have lost their competence to repeal them or to amend them. That is one consequence of the said provision. The other inevitable consequence of the said provision is that if a legislature amends any of the provisions contained iJ1 any of the said Acts, the amended provision would not receive the protection of Art. 31 B •and its validity may be liable to be examined on the merits."

In the case of Raman/al Guiab Chand Shah etc. v. State of Gujarat & Ors( 3 ) .. Hidayatullah CJ. also dealt with a similar question and observed:

"The first question to consider is the vires of the addition to s.65 by the Amending Act, which addition has been F shown i'.1 the section quoted already.

This matter has to be considered with reference to Arts. 31-A and 31-B read with the Ninth Schedule.

The protection is claimed on the basis of these two articles by the State. Article 31-B no doubt gives protection to all statutes listed in Schedule IX of the Constitution and this Act is so listed. But it was listed before the amendment of s.65 and that amendment came G to be said to have been considered when the Amendment of the Constitution was made.

That Amendment if accepted as unassailable will have the indirect effect of amending the original Schedule IX by iacluding something in it which was not there before.

This is undoubtedly beyond the competence of any state Legislature. The argume'.1t of the learned Attorney General that the general schemes of the.

H Pre•amble and the provisions of s.44 made applicable by

(l) [1965]1 s.c .R.. 933.

(2) [1952] S.C.R. 89.

(3) [1969] S.C. R. 42.

s.65 (2) both of which have the protection of Art:.31-B must A give protection is fallacious.

Even if the preamble and s.44 could be read (and we do not decide that they can !:le so read) to give validity it is clear that the preamble talke4 only of landholders a~1d the addition of the words to s.65 i~ intended to apply to principle to non-landholders. Similarly fhe provi· sions of s.44 under the unamended Act, could not \Jave been B made applicable to such non-landholders.

The amendment of s.65 was really carrying the Act into new field~ i!Jld not being considered as an amendment of the Constitutton, how can it claim the protection given to the unamend d Act ?

Therefore Art. 31-B and the Ninth Schedule cannot e called t.1 aid." l

The concluding part of the above passage did not lay d9wn, as Heems C to have been assumed by the High Court, that if an amen<\ling Act does not cover a new field but contains provisions which are ihcidental and ancillary, to those which are protected by article 3 lB, te a1,11ending Act would also get the protectid.1 of article 31B.

This Court in the concluding part merely repelled the contention which had been advanced by the Attorney General. The principle which should guide the courts in such cases was, however, laid down in the earlier part D of the passage wherein this Court repelled the argument that the amending Act was unassailable because of the original Act havrag been included in the Ninth Schedule.

It may be stated that Shah J. was also a party to the above decision. In the subsequent case of State of Orissa v. Chandra Sekhar Singh Bhoi etc.,(I) Shah J. relied upon the above decision and observed E as under:

"By the amendments made in the Cdnstitution by the 17th Amendment Act the principal Act is incorporated in the Ninth Schedule to the Constitution with effect from June

20, 1964. The Act is therefore not liable to be attacked on the plea that it is inconsistent with or takes away or abridges any F of the fu111.damental rights conferred by Part III of the Constitution. But the power of the competent Legislature to repeal or amend the Act incorporated in the Ninth Schedule is not thereby taken away. The amending Act passed after the enactment: of the CO'nstitution (Seventeenth Amendment) Act, 1964 does not therefore qll'alify for the protection of Art. 31-B.

See Ramanlal Gulabchand Shah etc. v. State of G Gujarat &: Ors. and Sri Ram Ram Narain Medhi v. State of Bombay (supra).

This position is not disputed."

In the case of State of Maharashtra etc. v. Madhavrao D'.lmodar Patilchand & Ors. etc.(2 ) which wris decided between these very parties, a seven-Judge Bench of this Court repelled the contention that article 31JB does not protect amendi'ag Act 13 of 1962 because H in the Ninth Schedule to the Constitution only the Maharashtra State

(I) [1970J I S.C.R. S93.

GODA VARI SUGAR MILLS v. s. B. KAMBLE (Khanna, J.) 90 l

Agricultural Lands (Ceiling on Holdings) Act, 1961 had been included and not the amending Act of 1962.

Sikri J. (as he then was) speaki'11gJ for the Court observed :

"But then there are many other Acts which had been amended before they were inserted in the Ninth Schedule, B and we can. hardly imagine that Parliament intended 011ly to protect the Acts afi originally passed and not the amendments made up to the date of their incorporation into the Ninth Schedule.

The reason for this express insertion of certai'a amending Acts seems to be that some States, out of abundant caution, recommended that their amending Acts c

be specifically inserted in the Ninth Schedule."

It was further observed :

"Accordingly we must overrule the first submission made by the learned counsel for the appellant and hold that Art. 3 lB protects the impugned Act including the arne'.1dments made in it upto the date of its incorporation into the Nirith Schedule."

The next question which arises for consideration is whether the impugned provisions are protected by article 31A of the Constitution.

According to Mr. Sen, the effect of the aforesaid provisims is to acquire land held by the appellants and as the acquisition is not for the purpose of agrarian reform, the provisions do not enjoy the protection of article 3 lA. As against that, the learned Attorney General on beh•alf of the responde1ats has contended that the impugned provisions constitute a measure of agrarian reform and as such are protected by article 31 A. ·

It is now well-established that before the protection of article 3 lA can be afforded to the acquisition of any fand by the State, the acquisition should be for the . purpose of agrariar, reform. As observed bv Subba Rao J. (as he then was) speaking for the majority in the case of Kava/appara Kottarathil Kochuni & Ors. v. The State of Madras & Anr.(l) the object of inserting article 31A in the Constitution and of subsequently amending it was to facilitate agrarian reforms. It was held in that case that an enactment which sought to regulate the rights of sthanees and the ju,1ior members of a tarwad by depriving the sthanee of its properties, and vesting them in the tarwad under the Madras Marumakkathayam (Removal of Doubts) Act, 1955 was not a measure of agrarian reform

In P. Vajrave./u Mudaliar v. Spec/a/ Dei, vuty Collector (2) Subba Rao J. speaking for the Court while reiterating that the object of article 31A was to enable the State to implement pressimg agrarian reforms held that the purpose of slum clearance for which the land was sought to be acquired under the La>1d Acquisition (Madras Amendment) Act, 1961 could not be related to agrarian reform. It is significant

(1) [1960] 3 S. C.R. 887.

(2) [1965) I S. C.R. 614.

that this Court in that case dealt with the acquisition of land for development of the area as "neighbourhood" in the city of Madras for housi'.1g schemes.

In the case of Ranjit Singh & Ors. v. State of Punjab & Ors.(!) this Court dealt with, the validity of the East Punjab Holdings (Consolidatim and Prevention of Fragmentation) Act, the Punjab Gram Panchayat Act and the Punjab Village Common Lands (Regulatio11) Act and the proceedings take11 under these enactments, as a result of which proprietor's interest was acquired by the State without compensation.

It was held that the impugned provisions as also the provisions of the Punjab Security of Land Tei, mres Act were all a part of a general Scheme of agrarian reform nnd the modifications of rights envisaged by them had the protection of Art. 31 (A). Hidayatullah, J. (as he then was) spr.aking for the Court observed :

"The scheme of rural development today envisages not only equitable distribution of land .so that there is no undue imbalance in society resulting in a landless class on the one hand and a concentration of land in the hands of a: few on the other, but envisages also the raising of economic standards and bettering rural health and social conditiom.

Provisions for the assignment of la•ads to village Panchayat for the use of the general community, or for hospitals, schools, manure pits, tanning grounds .etc. enure for the benefit of rural population must be considered to be a)a essential part of the redistribution of holdings and open lands to which no , objection is apparently taken.

If agrarian reforms are to succeed, mere distribution of land to the landless is not enough.

There must be a proper plannitag of rural economy and conditions and a body like the village Panchayat is best designed to promote rural welfare than individual owners of small portions of lands."

In the case of Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadue) it was held while dealing with the provisions of Uudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act that the object and general scheme of the Act was to abolish intermediaries between the state and the cultivator and to help the acutal cultivator by giving him the status of direct relationship between himself and the state.

The Act, as such, in its broad outlt.iles was held to be a measure of agrarian reform and protected by article 31A. The acquisition of forests in Janmam estates was held to be not in furtherance of the objective of agrarian reform and consequently not protected by article 31 A.

This Court in that context observed :

"In the absence of a•,1ything in the Act to show the purpose for which the forests are to be used by the Government, it cannot be said that the acquisition of the forests in Janmam land would be for a purpose related to agrarian reform. The mere fact that the ownership of forests would stand transferred to the State would not show that the object of the

(I) [1965] l S.C.R. 82.

(2) [1973] 1 S. C.R. 258.

GODAVARI SUGAR MILLS v. s. B. KAMBLE (Khanna, J.) ' 90 3

transfer is to br~.1g about agrar:•an reform, Augmenting the resources of the State by itself and in the absence of anything more regarding the purposPof utilisation of those resources, cannot be held to be a measure of agrarian reform.

There is no material on the record to indicate that the transfer of forests from the Janmi to the Govemment is linked in any way with a scheme of agrarian reform or betterment of village economy."

In the case of Kanan Devan Hills Produce Co. Ltd. v. The State of Kera/a & A nr. (1) this Court dealt with the provisions of Kannan Devan Hills (Resumption of Lands) Act.

One of the questions which arose for determinatioa in that case was whether the three .purposes mentioned in section 9 of the Act, namely :

( 1) reservation of lands for promotion of agriculture;

( 2) reservation of land for the welfare of 'agricultural population;

( 3) assignment of remaining lands tu agriculturists and agricultural labourers;

were covered by the expression "agrariaa reform" and as such the aforesaid provision was protected by article 3 lA of the Constitution. Sikri CJ. while holding that the above objects were covered by the expression "agrarian reform" observed :·

"It is urged that the wording of the first two purposes in s.9 is too wide.

But if we look at the definition of ·common purpose,' which was sustained by this Court in Ranjit Singh' s case (supra), it shows that the purposes sustained thereby would come under either the expression 'promotid1Tof agriculture' or 'welfare of agricultural population' in s. 9.

Indeed some wculd fall under both.

For instance, reservation of lands for manure pits, waterworks or wells, village water courses or water channels and grazing grounds would

promote agriculture; schools and playgrounds, dispensaries, public latrines etc. would be for the welfare of agriculturists.

If the State were to use lands for purposes which have no direct connection with the prom9tion of agriculture or welfare of agricultural population the State could be restrained

from using the lands for those purposes.

Any fanciful connection with these purposes would not be e'aough.

It seems to us that if we read these two purposes to mean that these include only 'common purposes,' which were sustained by this Court and purposes similar . thereto it would be difficult to say that they >are not for agrarian reform. In a sense agrarian reform is wider than land reform. It includes besides land reform something more a'ad that some-

(!) [1973] l S.C.R. 356.

thing more is illustrated by the definition of 'common purpose,' which was sustained by this Court in Ranjit Singh's

case." In the case of State of Kera/a & Anr. v. Gwalior Rayon Silk Mfff. (Wvg.) Co. Ltd. etc.( 1) this Court dealt with the provisions of the Kerala Private Forests (Vesting and Assignment) Act, under wbich private forest lands situated i'..1 the former Malabar district stood transforred to the State. The Act was held to be a measure of agrarian reform anµ as such protected by article 31A. Palekar J. speaking for the majority in that case observed :

"The objectives of increasing the agricultural production and the promotion of the welfare of the agricultural population are clearly a predominant element in agrarian reform.

How those objectives are to be implemented are generally stated in se:ctions 10 a',1d 11. All the private forests, after certain reservations, -are to be assigned to agriculturists or agricultural labourers and to the poorer classes of the rural population desiring bona fide to take up agriculture as a means of their livelihood. The reservation in respect of certain portions of the forests is also made in the interest of the agricultural population because the section says that the reservations will be such as may be 1,1ecessary for purposes directed towards the promotion of agriculture or welfare of the agricultural population or for purposes oancillary thereto." Krishna Iyer J. speaking for himself and Bhagwati J. agreed with the conclusions of the majority and observed :

"Once we accept the thesis that development orientation and distributive justice are vart of and inspire activist agrarian reform, its sweep and reach must extend to cover the needs of the village community as well.

What programme of agrarian reform should be initiated to satisfy the requirement of rural uplift in a particular community under the prevailing circumstances is a matter for legislative judgmP, nt." In Kh. Fid61 Ali & Ors. v. State of Jammu and Kashmir(2) this Court held that the provisions of the Jammu and Kashmir Agrarian Reforms Act were protected by article 31A.

One of us (Goswami J.) observed :

"From a review of the foregoi1.1g provisions it is obvious that the Act contains a dear programme of agrarian reforms in taking stock of the land in the State which is not in personal cultivation (section 3) a:ad which though in personal cultivation ii; in excess of the ceiling area (section 4). A ceiling area is fixed for land or orchards or both measuring 12t standard acres.

After the l'and vests i111 the State, in accordance. with the provisions of the Act, a provision is made for dis; posal of the surplus land in accordance with the rules."

(I) [1973] 2 S.C.C. 713.

(2) [1974] 2 s.c.c. 253.

GODAVARI SUGAR MILLS v. s. B. KAMBLE (Khanna, J.) 905

The following principles can be infered fqm the decided cases in order to find whether an impugned enactmenl for acquisition of la1,1d is protected by article 31 A :

(1) Acquisition of fand by the State in order to enjoy the protection of article 3 lA should be for the purpose of agrarian reform.

(2) Acquisition of land by taking it from a senior member of the family and giving it to a junior member is not , a measure of agrarian reform.

(3) Acquisition of land for url:Yan slum clearance or for a housing scheme a the neighbourhood of a big city is not a measure of agrarian reform.

( 4) Acquisition of land by the State withoui specifying the purpose for which land is to be used is not a measure of agraria~1 reform.

(5) Schemes of rural development envisage not only equitable distribution of land , but oalso raising of economic standards and bettering of rural healt}l and social conditions in the viJiages.

Provision for the assignment of land to a Pa.1chayat for the use of the general community ot for hospitals, schools, manure pits, tanning grounds enure for the benefit of the rural, population and as such constitute a measure of agrarian reform.

( 6) Provision for reservation of land for promotid,1 of agriculture and for the welfare of agricultuml population constitutes a measure of agrarian reform. Agrariim reform is wider than land reform. ,

(7) If the dominant and general purpose of the scheme is agrariat,1 reform, the scheme may provide for ancillary provisions to give full effect to the scheme.

( 8) A provision fixing ceiling area and providing for the

disp&al of surplus land in accordance with the rules is a measure of agrarian reform.

Keeping in view the above principles, let us now examine the impugned provisions in the preent case. Sectid,1 3 of the impugned Act imposes ceiling on holding of agricultural loand.

Section 4 provides that no person shall hold land in excess of the ceiling area.

Enquiry is to be made under section. 14 of the Act by the Collector for determining as to what area should be decloared to be in excess, of the ceiling area.

On completion of the enquiry if the Collector finds the 'holdi11g of a person to be in excess of the ceiling area, he makes a declaration under section 21 of the Act giving particulars of the oarea which is delimited as surplus land.

Possession of the surplus loand is then taken by the Collector. From the date of delivery of possession the land vests free from all encumbrances in the State Government.

Section 27 provides for the distribution of surplus land and fixes priorities for the purpose.

Scctiela 28 made a special provsion in respect of lands taken over from industrial U'.1dertakings to ensure efficient cultivation and continued supply of raw material for those undertakings.

For the aforesaid purpose if the State Government considcml it necessary to maintain the i'atcgrity of the land acquired from the industrial undertaking in one or more compact blocks, it might, subject to such terms and conditions, including in particular conditions which were calculated to ensure the full and continued supply of :raw mJkrial to the undertaking at a fair price, grant the land or any part thereof to a joint farming society or member thereof consisting as far as possible of the pe:rsons specified in that section.

Provision was also made in that section for terminafa1g the grant of the land for the reasons mentioned in sub-section ( 3) of that section and for. making such other arrangement as the State Government thought fit for the proper cultivation of the h1',1d and the maintenance, producllion and supply of raw material to the undertaking.

It would appear from the preamble to amending Act 27 of 1970 and the affidavit of Shri I. G. Karandikar, Under Secretary to Government of Maharashtra that efforts to set up joint farming societies contemplated by section 28 of the Act did not bear fruit in spite of the fact that the time for the setting up of those societies was extended. The State Gove1•,1mcnt then found that short extensions of time for the setting up of those societies was hampering the full and efficient use of land for agriculture and the Maharashtra State Farming Corporation which had been cultivating that la1ad for the interim period could not undertake any plans or schemes for the improvement of the land because Qf the short extensions.

The State Gover'.1mero.t, therefore, decided that the cultivation of the land might be continued with the Mah'lrashtra State Farming Corporation on a perma1aent basis. In

arriving at this decision, the State Government was also influenced by the consideration that the implementation of the joint farming soci<:ties scheme would lead to fragmentation of the land and hamper its economic development. This led to the insertion of section 28-lAA in the Act and the other amendments of the principal Act by Act 27 of 1970.

Conspectus of tht different provisim1s of the impugned Act, in our opinion, goes to show that the main purpose of the Act was to prevent concentration of agricultural land in the hands of a few.

A ceiling was consequently imposed regarding the extent of land which might be held by an i1adividual.

Surplus land was distributed in accordance with section 27 of the Act. It C'annot be disputed that the provisions of the impugned Act in so far as the above objects were concerned effectuated the object of agrarian reform.

As regards lands which were held by the industrial undertakings for the purpose of producing and providing raw material f9r the manufacture of goods by those uadertakings, the legii; lature made special provision in order to ensure that the acquisition of the aforesaid land did not affect adversely the production and supply of the raw material to the undertaking.

The object was fun;1er <:' make full and efficient use of the land for agriculture and also if considered necessary to maintain the integrity of the area so acquired in one or more compact blocks.

The kgislature for ti; ii; purpose initially made provision for the grant of the

GODAVARI SUGAR MILLS v, s. B. KAMBLE (Khanna, J.) 907

aforesaid lands to joint farming societies but as the proposal to set up· these societies 'did not bear fruit the legislature made provision that the aforesaid laads be given for cultivation to the State Corporation.

Sectiou 28-JAA, in our opinion, was an integral part of a general schcm.: of Act to bring about agrarian reform and, in our opinion the impugned provisions of the Act, including section 28-lAA, are protected by article 31A of the Constitution. lt has oeen argued by Mr.

Sen thaL distribution of acquired land among landless persons or poor pt:asants is an essential attribute of agrarian reform and that as the lands oftlli.' industrial undertakings are not to be distributed but have to be t:u!Livaki.l by the Farming Corporation owned by the State, the acquisition cannot be considered to be a measure of agrarian reform.

We arc not impressed by this argument.

Acquisition of land held by industrial undertakings is not to be taken in isolation but as a part of the general scheme and object of the Act that there should be a ceiling on private holdings.

While surplus lands of individuals are to be distributed, the legislature has made special provision in respect of land hdd by an industrial undertakings w:hich had been cultivated for supplying raw material to the industrial undertaking. lt has been provided in the case: of such land that it should be cultivated by the Farming Corporation in an efficient manner so that the supply of raw material to the industrial undertaking might not be affected.

It is, no doubt, trne that distribu tion of acquired land among landless persons and -poor peasants in a vast majority of cases is a part of the scheme of agrarian reform; the fact that in the t:ase of some huge tract of land whic.lh is used for a particular purpose the statute in order to prevent its fragmentation and to subservc that purpose provides that it should be cultivated by a Statt~- 0wned forming corporation would not justify the inference that the statutory requirement in this respect is not a part of a J;,; enernl scheme of agrarian reform. Section 28-lAA does not operate in a vacuum.

The section has to be taken in its context and setti'ng with the other provisions of the Act. If the provisions of the Act seek to remove economic imbalance by taking the surplus lands of holders in excess of a ceil-· ing and if the provisions of the Act farther contemplate that most of the lands after acquisition be distributed to poor peasants and landless persons, the fact that a few blocks of land because of their size and past use for cultivation of raw mate:ial for industrial undertakings are required under the provisions of the Act to be not fragmented, which would inevitably be the result if t'iey were to be distributed like other lands acquired under the Act, but to be retained as compact blocks for being cultivated by the farming corporation so that the industrial undertakings are not starved of the raw material, the last mentioned provision cannot be detached from the rest of the Act and struck down as being not a measure of agrarian reform.

It is no doubt true that acquisition simpliciter of the land by the State to augment its resources and without

pccifying the purpose for which it is to be used after acquisition would not get the protection of article 3 lA. To decide the question of pro-- tection Wfo must look at the general scheme of the statute containing pruvision for the acquisition, the object of the acquisition and the reasons which weigh for retaining the land with the State or its corporation and not distributing it among the landless persons and the poor peasants.

The concpt of agrarian reform, it needs to be emphasised. is not static and cannot a !ways be put in a straitjacket. With the change of times.

under the impact of fresh ideas and in the context of fresh situations, the A concept of agrarian reform is bound to acquire new dimensions.

A rneasu!:e which has the effect of improving the rural economy or promoting rural welfare would be a part of agrarian reform.

Although in most of the cases, as already mentioned, the agrarian reform would require distribution of surplus land among the poor peasants and landless persons living in the villages, situations might well arise where it would be

in the interest of rural economy that any compact area of land inst, ad B 11f being fragmented by distribution should be preserved as one compact block and be cultivated by a State-owned farming corporation.

The fact that part of the acquired land would remain vested in the S1:ate Government or State-owt,1ed farming corporation would not militate against the object of agrarian reform if the continued vesting of the land in t.he Government or the CorPQration is a part of •a general scheme of agrarian reform and there is no oblique deviatid,1 from the avowed pur- C pose. In the case of Ranjit Singh v. State of Punjab (supra), part of the acquired land was to vest in the State Government for schools, playf, rounds, dispensaries, hospitals, waterworks, tubewells and as the above vesting was a part of a general scheme of rural welfare, the statute :providing for that vesting was upheld and afforded the protection of article

31 A.

Ancillary provisions to give full effect to a scheme of agrarian reform, it may be stressed, would also have the protection of article 3 lA.

We may note that argument has also been advanced by the learned Atllirncy General regarding the locus standi of the appellants to file the petition giving rise to the present appea!.. It_ is urged tht the appellants have no locus standi to file the petition m respect of land measuring 10315 acres as unconditional possession thereof was delivered in M'ay l Yb8.

Jn the alternative, it is sumitted that clause (5) of sec- E tion 21 of the impugned Act which was 1_nroduced by amen?mg Act 27 of 1970 is severable from the other prov1s1ons of the amendmg Act and is in any case constitutionally valid.

As land measuring 10315 ac!es in accordance with the above clause had already vested betore the filmg of the petition in the State Government, the appellants had . no. locus standi to file petition in respect of that ra of land. It 1s H? _our opinion, not necessary to cxpres an opm10~ on the aboye submissions F of the Attorney General in view of our finding _tha~ the impugned provisions are protected by article 31 A of the Const1tut1on.

The appeal consequently fails and is dismissed. In the circ:umstances of the case, we make ao order as to costs.

V.P.S.

Appeal dismissed.

GODAVARI SUGAR MILLS LTD. AND ORS

S. B. KAMBLE AND ORS

March 7. 1975

Art. 31A

s. 28

Art. 3

Art. 14

s. 28

Ninth Schedule

Act was amended by various Maharashtra Act

Arts. 31A and 31B

Act was amended by various Maharashtra Act

Act was amended by various Maharashtra Act

Art. 3

Art. 3

Art. 31B

Ninth Schedule

Ninth Schedule

Ninth Schedule

Ninth Schedule

Ninth Schedule

Ninth Schedule

Parliament

Art. 368

Ninth Schedule

Ninth Schedule

(1965] 1 S.C.R. 933

[1968) 3 S.C.R. 712

[1969] 1 SCR 42

Art. 3

Art. 3

(1960] 3 SCR 887

[1965) 1 SCR 614

[1965] 1 SCR 82

[1973) 1 SCR 258

(1973] 1 SCR 356

Section 3

S. 4

s. 14

s. 21

Section 27

s. 28

From the preamble to the Amending Act

s. 28

Maharashtra State Farming Corporation

Maharashtra Stat~ Farming Corporation

S. 28

[1965] 1 S.C.R. 82

K. Se11 M. C. Bhandare

D. M. Popat

S. I.

Thakore

P H. f'arek

Sunanda Blumdare

n De

M. N. Shroff

I. . Shroff

J. C. Bhatt

Shroff, and J. C. Bhatt, for respondent No.

KHA NA

Godavari Sugar Mills Ltd.

Bombay High Court

January 7:6 1962

Maharashtra

Section 3

Section 4

section 5

section

12

Section 14

section 21

section 2

Section 2

section 21

section 27

Ahmednagar

March 7, 1963

Lakshnuwach

Maharashtra Revenue Tnbunal

October 25, 1963

section 28

section 28

article 31A

Section 28

article 1

June 20, 1964

section 28

March 10, 1965

April 10, 1968

(1968) 3 SCR 712

April 26, 1968

May 2, 1968

section 28

March 6, 1963

Companies Act

State of Maharashtra

May 17, 1968

section 28

June 26. J 96

MaJurashtra Revenue Tribuna1l

Section 2

section 28

section 28

Third Schedule

Clause 3

Third Schedule

July 26, 1969

May J 9, 1970

section 28

Companies Act, 1956

section 28

section 28

Sections 2 and 3

Section 4

section 21

Section 7

section 28

Section 28

section 8

section 28

section 28

section 28

December 22,

1973

August 13, 1970

section 28

Clause 2

Maharashtra State Farming Corporation Ltd.

section 28

Clause 4

clause 5

articles 31

Sen

article 31

article 31B

section 28

Ninth Schedule

section 28

article 3

section 28

section 28

section 28

section 21

section 21

article 31B

Article 31B

article 31A

Ninth Schedule

Ninth Schedule

Ninth Schedule

article 3

article 3

Ninth Schedule

Ninth Schedule

Ninth Schedule

Ninth Schedule

Ninth Schedule

Ninth Schedule

Ninth Schedule

article 368

article 368

Ninth Schedule

Ninth Schedule

article 3

Ninth Schedule

Ninth Schedule

article 31B

Ninth Schedule

Article 31B

Ninth Schedule

Article 3

article 3

Ninth Schedule

Ninth Schedule

article 3

Ninth Schedule

Bhagwati

Art. 13

Art. 3

Art.

3

Gajendragadkar

Sankari Prasad(2

Art. 3

Art. 3

Ninth Schedule

Ninth Schedule

Art. 31

Hidayatullah

Arts. 31

Ninth Schedule

Article 31

Schedule IX

Art. 31

Ninth Schedule

article 3

article 31B

Ninth Schedule

Shah

Amendment Act the principal Act

Ninth Schedule

June

20, 1964

Ninth Schedule

Art. 31

article 31J

Ninth Schedule

Sikri

Ninth Schedule

Ninth Schedule

Ninth Schedule

Art. 3

article 31A

article 3

article 31

article 3

Subba Rao

article 31A

article 31A

[1960] 3 S. C.R. 887

Madras

Art. 31

article 31A

article 31

[1973] 1 S. C.R. 258

section 9

article 3

Ranjit Singh

s. 9

article 31A

Palekar

Krishna Iyer

article 31A

Goswami

section 3

section 4

article 31

article 3

Section 4

section 21

Section 27

I. G. Karandikar

section 28

Mah'lrashtra State Farming Corporation

section 28

section 27

section 28

article 31A

Section 28

article 3

article

31

article 3

article 31


SURYA KANT ROY

IMAMUL HA.I KHAN March 12, 1975

[A. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.]

Represellat!on of the People Act, 1951-Ho/ding an office of profit-Tests. f<Yr determrnallon-Chainnan of a statutory body-Whether an office of profit 1111der Government ..

A /legations of corrupt practice should be proved beyond reasonable doubt.

Under the Bihar and Orissa Mining Settlement Act, 1920 a Board called the Mines Board of Health may be established to provide for the control and sanitation of any area. The Board consists of members who are elected by mine owners, non-officials selected by the State Government and persons nominated by Government. The Chairman of the Board is appointed by the State Government from among the members of the Board.

The Boaird is a body corporate.

A fund called "The Mining Settlement Fund" is created consisting of sums charged by the Board under the Act from land-owners as also sums allotted from the State revenues as well as sums borrowed by the Board under the Local Authorities Loans Act, grants received from local Authorities, associa. tiom and private persons. The respondent was appointed by the Government as Chairman of the Jharia Mines Board of Health. The .respondent was elected as a member of the State Assembly in the general elections. The election petition of the appellant (the unsuoessful candidate)° against the respondent was dismissed by the High Court.

On appeal to this Court it was argued that the respondent was disqualified from standing for the election as he held an office of profit under the StatC' Government.

Dismissing the appeal,

HELD : ( I) The mere fact that the respondent was appointed as Chairman of the Board by the GovP.rnment would not make him a person holding ain office under the State Government. The fact that the Government and other local authorities might make grants to the Board did not mean that all the funds of the B_oard were Government funds or Government property. The provisions of the Act are enough to establish that the Board is a 'local authority' within the meaning of that expression as defined in cl. (31) of s. 3 of the General Clauses Act, 1897. (911 C; BJ

(2) In determining whether a person is holding an office of profit under the Government the tests laid down by this Court were ( 1) Whether the Government makes the appointment; (2) Whether the Government has the right to remove or dismiss the holder; (3) Whether the Government pays the

remuneration; ( 4) What are the functions of the holder? Does be perform them tor the Government, and (5) Does the Government exercise control over the performance of those functions ? [911 G]

In the instant case the Government did not pay remuneration to the respondent nor did he perform his functions for the Government. The office held by him was held under a local authority. The holding of an office of profit in it did not bring about a disqualification, even i~ the local authority be under the control of the Government. The control exercised by the Government did not make the Board an organ of the Government nor did it make the respondent a person holding an office under the Government. [912 £..Fl

Maulana Abd11/ Shakur v. Riklzabclumd & Anr. [1958] S.C.R. 387 at 394 and Slifram11rtliy Swami v. Agadi Sanganna Andanappa [1971]

3 S.C.C. 870, followed.

Gumilw11111ppa v. Abdul Khaddus A.l.R. 1969 S.C. 744-[1969] 3 S.C.R. 425, referred to.

(3) An allegation of corrupt practice being a serious on~, kacling not merely to the consequence of the election of the successful. candidate bc1g set aside, but also of his being disqualified to sta, nd for election for a certan period, should be proved beyond reasonable drubt. Such p.rool is lacking 111

this case. [913 CJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1116 cf 1973.

Prom the judgment and order dated the 22nd January, 1973 of th~ Patna High Court in Election Petition No. 21 of 1972.

J. P. Goyal and V. C. Parashar, for the appellant.

D. Goburdhan, for the respondent.

The Judgment of the Court was rielivercd by .

ALAGIRISWAMI, J.-This appeal by one of the unsu~..:c>sful 1:andi .. dates in the election held to the Legislative Assembly of Bihar State .from the Baghmara constituency is against the dismissal of his electio•,11

petition questioning the rc:spoi1dcnt's election by the High Court at Patna.

Only two questions were argued before us (l) that the respondent was disqualified for standing for the elecfo:m as he held an office of profit under the Government of Bihar, and (2) that he obtained the services of •a Sub-Inspector .of Police for the furtherance of the prospects of his election.

The facts relating to the first question are these : Under the Bihar .and Orissa Mining Settlement Act, 1920 a Board called the Mines B'Jard of Health may be established to provide for the control and sanitation of any area within which persons employed in a mine reside and for the prevention therein of the out break and spread of epidemic diseases. Before the area is declared to be a mining settlement for the purposes of the Act certain prescribed formalities

like receiving objections etc. have to be observed.

The Board is a body corporate having prepetual succession and a common seal with power to hold and acquire property. It consists of not less than seven -and not more than eleven members of whom not less than two and not more than four are elected by owners of mines within the mining settlement, three non-officials selected by the State Government and tW"<) or mdre members but not exceeding four nominated by the State Government. The Chairman of the Board is to be appointed by the State Government from among the members of the Board.

A fund called "The Mining SettleU?ent Fund" is formed for every mining settlement and the fund vests m the Board.

The fund consists of sums •charged by the Board under the Act from land owners etc. as also sums allotted to the Board from the State revenues; sums borrowed by the Board under the Local Authorities Loans Act !!rants received from I:ocal. Authorities, associations and private prsons etc.

The Board appomts Health Officers as well as Sanitary Inspectors.

The Board can impose taxes like latrine tax and also make yearly assessment.

There are certain powers conferred on the State Government

H -

s. K. ROY v. I. H. KHAN ( A/agiriswami, I.) 9 11

under the Act but they are no more than powers conferred on State Governments in respect of various local bodies. The respondent was appointed by the Government as the Chairman of the Jharia Mines Board of Health.

We argee with the learned Judge of the High Court that it is difficult to accept the argument that the Board is wholly under the control of the State Government in all its functions. The Board levies taxes and -other assessments and ha& got its own funds.

The fact that the Government and other local authorities might make graats to the Board does not mean that all the funds of the Board are Government

fund~ or Government property. The provisions we have set out above are enough to establish that the Board is a 'local •authority' within the meaning of that expression as defined in clause (31) of section 3 of the ·

General Clauses Act, 1897. Indeed this position does not seem to have been disputed by the petitioner before the High Court in the course of his argument. We do not, therefore, think that the mere fact that the respondent was appointed as Chairma'.1 of the Board by the Government would make him a person holding •an office under the State Government.

We may in this connection refer to certain decisions of this Court.

In Maulana Abdul Shakur v. Rikhabchand & Anr.( 1) this Court held :

"The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discertion and payment from out of Government revenues are important factors in determin- ing whether that person is holding oan office of profit under the Government." We have alre'idy pointed out that in this case the payments to the respondent are not from out of the Government revenues. ·

In Shivamurthy Swami v. Agadi Sanganna Andanappa( 2) .this Court pointed out : · · ·

" ..... the office in question must have been held under a Government and to that some pay, salary, emoluments or allowance is attached . . . This Court in several decisions had laid down the tests tor finaing out whether an office in question is an office under a Government and whether it is an office

of profit. Those tests are : ( 1) Whether the Government makes the appointment; (2) Whether the Government has right to remove or dismiss the holder; (3) Whether the Government pays the remuneration; ( 4) What are the f u11ctiv1;1 of the holder? Does he perform them for the Government, and (5) Does the Government exercise anrcontrol over the performance of those fuctions ?"

Here again it is to be pointed out that the Government does not pay the remuneration nor does the holder perform his functions for the Government.

To hold otherwise would be to hold that local

(1) [1958] S.C.R. 387 at 394.

bodies like Municipal Councils perform their functh:ms for the Gov.ernt\ ment though in one sense the functions they perform are governmental functions.

The decision of this Court in Gurushantappa v. Abdul Khaddus( 1), which was also relied upon by the High Court, may be usefully referred to. It was there observed:

"Thus, in the case of election as President -.:ir Vice-President, the disqualification arises even if the candidate is holding an office of profit under local or any other authority under the C'Ontrol of the Central Government or the State Govenment, whereas, in the case of a candidate for election as a Member of any of the Legislatures, no such disqualification is laid down by the Constitution if the office of profit is held under a local or any other authority under the c0ntrol of the Government and not directly unde! any of the Governments. This clearly indicates that in the case of eligibility for election as a member of a Legislature, the holding of an office of profit under a corporate body like a local authority does not bring about disqualification even if that local authority be under the control of the Government.

The mere control of the Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature in the manner in which such disqualification co; nes into existence for being elected as the President or the Vice-President."

The office held by the respondent is held under a local authority.

The holding of an office of profit in it does not bring about a disqualification even if that local authority be under the control of the Government.

The mere control of Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualifiy that officer from being a candidate for election as a member of the Legislature.

Therefore, the control exercised by the Government over the Board in this case does not make the Board an organ of the Government nor does it mah the respondent a person holding an office under the Government.

It is, therefore, unnecessary to go into the question whether the office held by the respondent was an office of profit, though we may indicate that on the evidence available in this case we have come to the conclusion that it is not an office ofl profit. We are not setting out the evidence at length only because it is unnecessary for the purpose of this case.

As regards the 2nd question the allegation of the appellant was that the respondent taking advantage of his position as a former Cabinet Minister of the State of Bihar bad procured the services of the •officerin-charge of C'has police station in arranging and holding his election meeting on 20th February, 1972 within the premises of the Chas police station and this was a corrupt practice within the meaning of sub-s. (7) ----

s. K. ROY v, I. H. KHAN (Alagiriswami, J.) 913

of s. 123 of the Representati'on of the People Act.

According to the re6pondent fae election meeting was held in the vacartt space on the southern side of the compound wall of the police station. The evidence relied upon by the appellant for providing his charge WCi'C his own and that of two of his co-villagers.

The appellant t.Vas not an eye witness of this meeting and his evidence was pure hearsay.

The person who is said to have informed him was not examined.

The evidence of P. \\'s. 1 and 2 was not accepted by the High Court.

The police officer concerned, who was examined as R.W. 8, as well as the respondent (R.\V. 10) have denied the allegation.

After a careful examinafron on all the evidence the High Court held this charge not proved. We have gone through the evidence and see no reason to differ from the High Court on this point. '

An allegation of corupt practice being a serious one leading not merely to the consequence of the election of the successful candidate being set aside but also of his being disqualified to stand for election for a certain period should be proved beyond reasonable doubt and we fine! such proof lacking in this case.

The appeal is dismissed with costs.

P.B.R.

Appeal dismil\>cd.

12-514SC!/75

ROY

IMAMUL HA.I KHAN

March 12, 1975

A. ALAGIRISWAMI

N. L. UNTWALIA, JJ.

People Act, 1951

Jharia Mines Board of Health

s. 3

General Clauses Act, 1897

[1969] 3 S.C.R. 425

CIVIL APPELLATE JURISDICTION

J. P. Goyal

V. C. Parashar

D. Goburdhan

ALAGIRISWAMI

Government of Bihar

Orissa Mining Settlement Act, 1920

section 3

General Clauses Act, 1897

Bihar

20th February, 1972

s. 123

s. 1 and 2