1. Challenge to the constitutionality of the Gujarat Amendment Act 1982 and Section 69A of the Bombay Land Revenue Code regarding the vesting of mines and minerals in the State. (Para 1 , 2 , 3 , 4 )
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1994 Supreme(SC) 677
Supreme Court Of India
K.RAMASWAMY,N.VENKATACHALA
Jilubhai Nanbhai Khachar - Appellant
Versus
State of Gujarat - Respondent
Civil Appeals Nos. 2211-15 of 1984 and 3013 of 1990
Decided On : 07/20/1994
Advocates Appeared:
Mr. Harish J. Jhaveri, Advocate (in C. A. Nos. 2211, 2213 and 2214 of 1984) and Mr. B. K. Mehta, Sr. Advocate, Mr. Harish J. Jhaveri, Mr. L.U. Shah, Advocates with him (in C. A. Nos. 2212/84 and 3013 / 90) and Mr. A. K. Ganguli, Sr. Advocate, Mr. Pramod B. Agarwala and Mr. Satish Agarwala, Advocates with him (in C. A. No. 2215/84), for Appellants; Mr. D. A. Dave, Mr. Anip Sachthey, Mr. C.B. Singh, Mr. Vivek Sharma and Ms. Meenakshi Arora, Advocates, for Respondents.
Mr. Harish J. Jhaveri, Advocate (in C. A. Nos. 2211, 2213 and 2214 of 1984) and Mr. B. K. Mehta, Sr. Advocate, Mr. Harish J. Jhaveri, Mr. L.U. Shah, Advocates with him (in C. A. Nos. 2212/84 and 3013 / 90) and Mr. A. K. Ganguli, Sr. Advocate, Mr. Pramod B. Agarwala and Mr. Satish Agarwala, Advocates with him (in C. A. No. 2215/84), for Appellants; Mr. D. A. Dave, Mr. Anip Sachthey, Mr. C.B. Singh, Mr. Vivek Sharma and Ms. Meenakshi Arora, Advocates, for Respondents.
Important Points
The Court held that the right to property under Article 300A is a constitutional right, not a basic structure of the Constitution. Acquisition of mines and minerals via eminent domain is valid, and compensation need not be market value provided the principles are relevant and not illusory.
Subject
Constitutional Law - Land Acquisition and Agrarian Reform
Act Referred
BOMBAY LAND REVENUE CODE: S.69
BOMBAY LAND REVENUE CODE AND LAND TENURE ABOLITION LAWS GUJARAT AMENDMENT ACT: S.1, S.2, S.69(a)
CONSTITUTION OF INDIA: Art.300(a), Art.39(c), Art.13(2), Art.31(a), Sch.7, Art.246, List.2 Entry.18
LAND REFORMS ACT: .
BOMBAY LAND REVENUE CODE AND LAND TENURE ABOLITION LAWS GUJARAT AMENDMENT ACT: S.1, S.2, S.69(a)
CONSTITUTION OF INDIA: Art.300(a), Art.39(c), Art.13(2), Art.31(a), Sch.7, Art.246, List.2 Entry.18
LAND REFORMS ACT: .
Headnote
Constitution Amendment Act, 1971 - Article 246(3) - Articles 19(1) (f) and 31- Article 30(1) - Section 69A(4) - Section 11(6) - Sub-section (6) - Articles 14 and 31(2) - Article 39(d) - Article 21 - Article 300A - Article 14 - Article 21 - Section 69A - Sub-section (4) - Section 69A(4) – Agriculturist – Bringing harvest - System in vogue was that lands that were under control of rulers through agriculturists, latter had to bring their produce to a common place khali meaning thereby threshing floor - Ruler or his agent used to take stock of the total produce harvested and set apart towards rulers share according to custom or contract and remainder belongs to agriculturists - In other system land was granted to Girasdars or Barkhalidars, and requirement of bringing harvest by agriculturists to threshing-floor was dispensed with - This anachronistic land tenure system was done away with by progressive different land tenures conferring permanent ryotwari settlements on tiller of soil through Saurashtra Gharkhed Tenancy Settlement, Saurashtra Barkhali Abolition – Held, 21 does not apply to acquisition or deprivation of property giving effect to directive principles are not concerned in these appeals of effect of mining and mineral lease or leases granted by appellants to third parties, since that question was neither canvassed in High court, nor any factual foundation laid before us - Court decline to go into that question - For well over twelve years appellants worked mines etc by obtaining stay of operation of law and had appropriated mines or minerals or quarries from respective lands - Compensation or amount payable of Code may be worked out and costs be set off in working out amount and balance, if any, be recovered from appellants - This exercise should be done within three months from date of receipt of judgment - Working mines etc. should be stopped forthwith by either appellant their lessees, or anybody in feigned camouflaged of coloured shoes - State should take immediate action in this behalf – Appeal Dismissed.
Legal Category Hierarchy
- constitutional law
- administrative law
- resource regulation
Table of Contents
2. Constitutionality of Section 69A — conflict with Central legislation — primacy of special laws — illegality of retrospective operation — inadequacy of compensation — violation of Articles 14, 21, and 300A. (Para 6 , 15 , 18 , 19 )
3. The Act is predominantly for land right extinguishment — falls within State legislative competence — retrospective effect from State formation is valid — right to property is not a basic structure. (Para 7 , 8 , 9 , 10 , 13 , 14 , 17 , 18 , 20 , 26 , 30 , 48 , 52 , 54 )
4. Legislative power to acquire property for public purpose under Article 300A does not mandate market-value compensation, provided the principles for determining the amount are relevant and not illusory. (Para 52 , 54 , 55 )
5. Appeals dismissed with costs — mining operations ordered to stop immediately — compensation to be worked out as per Section 69A(4) of the Code. (Para 57 )
6. Does the State have the power to enact laws vesting mines and minerals in the State despite the existence of a Central Act?
Yes. The State Legislature derives power from Entry 18 (Land) and Entry 23 (Mines and Mineral Development) of List II and Entry 42 of List III. The Amendment Act, in pith and substance, is for the abolition and extinguishment of rights in land, falling within these fields. (Para 6 , 7 , 9 , 13 , 14 )
7. Is the retrospective application of a law vesting property in the State from the date of the State's formation constitutionally valid?
Yes. The power to make laws prospectively includes the power to make them retrospectively unless expressly prohibited. Retrospective operation from the date of the State's formation (May 1, 1960) is valid to align the law with the State's existence. (Para 18 )
8. Is the right to property under Article 300A a part of the basic structure of the Constitution?
No. The right to property is a constitutional right, not a fundamental right, and is not a basic feature or structure of the Constitution. It is subordinate to the common good and the goals of agrarian reform. (Para 22 , 30 , 41 )
9. Does Article 300A require the State to pay market-value compensation when depriving a person of property for a public purpose?
No. While deprivation must be by authority of law, the obligation to pay market-value compensation is not an inherent requirement of Article 300A. The amount fixed must not be illusory, and the principles for its determination must be relevant. (Para 52 , 54 , 55 )
Judgement
K. RAMASWAMY, J. :- These five appeals raise four-pronged attack on the constitutionality of the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Act 8 of 1982 (for short "the Amendment Act"). Though unsuccessful in the High Court of Gujarat in Special Applications Nos. 1118 of 1982 and batch by judgment of the Division Bench dated 7/8 September, 1983 (reported in AIR 1984 Guj 157) and followed in Special Civil Application No. 763/82 dated September 16, 1988 the appellants had leave of this Court. A short shift of the antecedent history of land tenures in Saurashtra region of the State of Gujarat is necessary to focus the focal points posed for decision, by common judgment. The appellants are successors of Barkhalidars and Girasdars. The erstwhile Saurashtra State consisted of 220 princely States ruled by Sovereign Rulers in their own rights. The lands in these appeals form present parts of Surendra Nagar and Bhavnagar districts. In the State of Saurashtra, the Rulers entered into agreements with Taluqadars and estate holders and also created a class of interested people known as "Barkhalidars or Girasdars." Various parcels of lands together with all rights in or interest over those lands were granted for cultivation on payment of revenue etc. with a right of succession in favour of their cadets or relations or favourites known as "Girasdars" or "Barkhalidars". "Gharkhed", known in South India estate tenures as "Homefarm lands", means land reserved by land holder for personal cultivation. "Bid Land" means such lands as has been used by the land holders for grazing his cattle or for cutting grass for the cattle. "Land holder" means Zamindar, Jagirdar, Girasdar, Taluqdar etc. or any person who is a holder of land or who is interested in land and whom the Government has declared, on account of the extent and value of the land or his interests therein, to be a landholder.
2. The system in vogue was that the lands that were under control of the rulers through the agriculturists, the latter had to bring their produce to a common place "khali" meaning thereby threshing floor. The ruler or his agent used to take stock of the total produce harvested and set apart towards the rulers share according to the custom or the contract and the remainder belongs to the agriculturists. In the other system the land was granted to the "Girasdars" or "Barkhalidars", and the requirement of bringing the harvest by the agriculturists to the threshing-floor was dispensed with. This anachronistic land tenure system was done away with by progressive different land tenures conferring permanent ryotwari settlements on the tiller of the soil through "The Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance, 1949 which later became the Act, the Saurashtra Land Reforms Act, 1951; the Saurashtra Barkhali Abolition Act, 1951 and the Saurashtra Estates Acquisition Act, 1952 (for short "the Act"). Under the respective statutes the rights and liabilities of Girasdars or Barkhalidars have been determined. The details whereof are not relevant for the purpose of these appeals. Suffice it to state that S. 2(c) of the Act defines "estate" to mean all land of whatever description or an undivided share thereof held by a Girasdar and includes uncultivable waste land etc. S. 2(a) defines land as "land of any description whatever and includes benefits whatsoever arise out of the land and things attached to the earth or permanently anything attached to the earth. These definitions are of wide amplitude to include mines and mineral wealth beneth surface land of whatever description. S.3(1) abolishes Girasdari or Barkhalidari tenures by a notification published by the Government in the official gazette, from time to time declaring with effect from a specified date that all rights, title and interest of the Girasdars or Barkhalidars shall, in respect of any estate or part of an estate comprised in the notification, ceased and
