# STATE OF ORISSA v. CHANDRA SEKHAR SINGH BUOi ETC

- **Citation:** [1970] 1 S.C.R. 593
- **Court:** Supreme Court of India
- **Decided:** 1969-07-15
- **Bench:** J.C. Shah, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-orissa-v-chandra-sekhar-singh-buoi-etc-4667
- **Pages:** 8

## Headnote

Constitution of India-Art. 31-A pro••iso 2-'·Law for the time being
in force"-O"iss<1 Land Reforms Act 16 of 1960-Ch. Iv: containing ceiling provisions not brought into force-Chapter IV emended b,v
Act 15
of 1965 and new ceiling provisions substituted fixing compensation not at
market value-Chapter IV of Act 16 of 1960 if "law in force" within
Article 31-A, proviso 2. ·
The Consutution.of India, Art. 31-A, proviso 2, guarantees to a person.
for compulsory acquisition of his Jand, the right to compensation which
1
is not less than the market value when the land is within the ceiling limit
applicable to him under a law for.., the time being in force. Section 1 (3)
of the Orissa Land Reforms Act, 1960~ provided that the Act was to come
into force in whole or i1,1 part on such dates as the Government may from
time to time by notification appoint.
Certain provisions of the Act were
brought into force by n.otifications.
But Chapter IV of the Act dealing
with ceiling of holdings .of land was not brought into force.
The Act Y.'as
amended by Act 13 of 1965. The amending Act deleted Chapter IV and
substituted fresh provisions.
Chapter IV as amended dealt with ceiling
and disposal of excess land and provided fof compensation at :fifteen times
the fair and equitaQle re:nt. In the High Court the respondent land-holders
urged that when Act 16· of 1960 was enacted it became law in force and
the Ct'!iling limit prescriPed thereby became effective even though Chapter
IV was not brought into force by notification under secf1on 1 ( 3) of the
Act that since the Amepding Act 15 of 1965 sought to, r•'5trict the ceiling
limit and to vest the sufplus land in the government there was compulsocy
acquisition of land whiCh: could be valid only if the law provided for payment to the land-holder the market value of that part of the surplus land
which was1 within the c~iling limit under Act 16 of 1960. The Higli Courl
accepted the contention· and struck down Chapter IV of the Act as unconstitutional and invalid. .It was _of the vie·N, relying on this Court's decisior
in Thangal Kunju M1fPaliar's case, that the expression "law in force'
had to be "construed otily in the constitutional sense and not in the sens1
of its actual operativeness." In appeal by the State,
HELD : Allowing the appeal :
I
A law cannot be said to be in force unle~s it is brought into op(;ratio1
by legislative enactment or by the exercise of authority by a
d~legat
empowered lo bring it: into.operation.
The theory of a ~tatute being "i
operation in a constitutional sense" has no validity.
T'he decision of thi
Court in Thangal Kunju Mudaliar lends no support tc the view expresse
by the High Court.
There this Court held that s. I (3) of Travancor
Act 14 of 1124 (fvf.E;) \vas an ''existing la\v" on the date of the merge
of the States of Travancore and Cochin and the power to bring into fore
the provisions of the Travancore Act was exercisable by th..:: successor State
Jt was not held that the other provisions of the Act were in force eve
before an appropriate· notification was issued. [599 B-C: 600 C-DJ
594
SUPREME COURT REPORTS
[ 1970] I S.C.R.
Jn the present case the law relating to rhc ceiling limit, rf::., c:haptcr
IV Clf Act
16 of
1960
was
never operative
by a notification
and
was
repealed
by
Act
15
of
1965.
'fhcrcforc
there
\\·a)
no
ceiling limit applicable to the land holders under any .. l.n~' for the time
being in force" \l:hic:1 atlract~d the application of the SL'cond proviso to
Art. 31-A. [600 E]
Tlrangal Kunju Mudaliar \'. M. Venkite1cliafa111 Potri, [1955] 2 S.C.R.
1196; explained.

## Text

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STATE OF ORISSA
v.
CHANDRA SEKHAR SINGH BUOi ETC.
July 15, 1969
[J.C. SHAH AND C. A. VAIDIALINGAM, JJ.J
Constitution of India-Art. 31-A pro••iso 2-'·Law for the time being
in force"-O"iss<1 Land Reforms Act 16 of 1960-Ch. Iv: containing ceiling provisions not brought into force-Chapter IV emended b,v
Act 15
of 1965 and new ceiling provisions substituted fixing compensation not at
market value-Chapter IV of Act 16 of 1960 if "law in force" within
Article 31-A, proviso 2. ·
The Consutution.of India, Art. 31-A, proviso 2, guarantees to a person.
for compulsory acquisition of his Jand, the right to compensation which
1
is not less than the market value when the land is within the ceiling limit
applicable to him under a law for.., the time being in force. Section 1 (3)
of the Orissa Land Reforms Act, 1960~ provided that the Act was to come
into force in whole or i1,1 part on such dates as the Government may from
time to time by notification appoint.
Certain provisions of the Act were
brought into force by n.otifications.
But Chapter IV of the Act dealing
with ceiling of holdings .of land was not brought into force.
The Act Y.'as
amended by Act 13 of 1965. The amending Act deleted Chapter IV and
substituted fresh provisions.
Chapter IV as amended dealt with ceiling
and disposal of excess land and provided fof compensation at :fifteen times
the fair and equitaQle re:nt. In the High Court the respondent land-holders
urged that when Act 16· of 1960 was enacted it became law in force and
the Ct'!iling limit prescriPed thereby became effective even though Chapter
IV was not brought into force by notification under secf1on 1 ( 3) of the
Act that since the Amepding Act 15 of 1965 sought to, r•'5trict the ceiling
limit and to vest the sufplus land in the government there was compulsocy
acquisition of land whiCh: could be valid only if the law provided for payment to the land-holder the market value of that part of the surplus land
which was1 within the c~iling limit under Act 16 of 1960. The Higli Courl
accepted the contention· and struck down Chapter IV of the Act as unconstitutional and invalid. .It was _of the vie·N, relying on this Court's decisior
in Thangal Kunju M1fPaliar's case, that the expression "law in force'
had to be "construed otily in the constitutional sense and not in the sens1
of its actual operativeness." In appeal by the State,
HELD : Allowing the appeal :
I
A law cannot be said to be in force unle~s it is brought into op(;ratio1
by legislative enactment or by the exercise of authority by a
d~legat
empowered lo bring it: into.operation.
The theory of a ~tatute being "i
operation in a constitutional sense" has no validity.
T'he decision of thi
Court in Thangal Kunju Mudaliar lends no support tc the view expresse
by the High Court.
There this Court held that s. I (3) of Travancor
Act 14 of 1124 (fvf.E;) \vas an ''existing la\v" on the date of the merge
of the States of Travancore and Cochin and the power to bring into fore
the provisions of the Travancore Act was exercisable by th..:: successor State
Jt was not held that the other provisions of the Act were in force eve
before an appropriate· notification was issued. [599 B-C: 600 C-DJ
594
SUPREME COURT REPORTS
[ 1970] I S.C.R.
Jn the present case the law relating to rhc ceiling limit, rf::., c:haptcr
IV Clf Act
16 of
1960
was
never operative
by a notification
and
was
repealed
by
Act
15
of
1965.
'fhcrcforc
there
\\·a)
no
ceiling limit applicable to the land holders under any .. l.n~' for the time
being in force" \l:hic:1 atlract~d the application of the SL'cond proviso to
Art. 31-A. [600 E]
Tlrangal Kunju Mudaliar \'. M. Venkite1cliafa111 Potri, [1955] 2 S.C.R.
1196; explained.
CIVIL APPELLATE JURISDICTION: Civil Appeals No<. 1017,
to 1027, 1029 to 1032, 1034 to 1037, 1901 to 1906 and 854 of
1968.
Appeals from the judgment and order dated January 30, 1967
of the Orissa High Court in O.J.Cs. Nos. 329 of 1965 etc.
C. B. Aganvala a,nd R. N. Sachthey, for the appellant (in a11
the appeals).
II. R. Gokhale, Santosh Chatterjee and G. S. Chatterjee, for
the respondents (in all the appeals).
The iudgment of the Court was delivered by
Shah, J. The State of Orissa has appealed to this Court against
the judgment of the State High Court declaring "unconstitutional
and invalid" Chapter IV of the Orissa Land Reforms (Amendment)
A<;t 15 of 1965.
The Orissa Land Reforms Act 16 of 1960 (hereinafter called
lhe principal Act) received the assent of the President on October
17, 1960.
By s. 1(3) of the principal Act it was provided that
the Act shall come into force in whole or in part, on such or date
or dates as the Government may from time to time by .notification
appoint and different dates may be appointed for different provisions of the Act. By a notification issued on September 25, 1968
certain provisions of the principal Act other than those· contained
in Chs. III and IV were brought into force.
~y a notification
dated December 9, 1965 Ch. III (ss. 24 to 37 dealing with resump-
. tion for personal cultivation of any land held by a tenant and related matte·s) was brought into force.
But Ch. IV (ss. 38 to 52
dealing with cdling of holdings of land and disposal of excess
land) was not brought into operation. The Legislature of the State
ol Orissa amended the principal Act by Act 13 of 1965. By Act
13 of 1965 amendments were made in the principal Acts : the
expressions "ceiling area" and "privileged raiyat" were defined by
clauses ( 5) & 24 of 3. 24 and the expression "classes of land" was
defined ins. 2(5-a). The original Chs. Ill and IV of the principal
Act were deleted and were substituted by fresh provisions. Nothing need be said about the amendments made in Ch. HI because
in these groups of appeals the validity of these provisions is not in
hsue.
It may suffice to say that Ch. III (ss. 24 to 36) as amended
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ORISSA V. CHANDRA SEKHAR (Shah, J.)
595
deals with the right of the landlord to resume land for personal
cultivation, the extent of that right, and the proceedings for resumption of land. Chapter IV as amended deals with ceilings and
disposal of excess land. By s. 37 it is provided:
"(!) No person shall hold after the commencement
of this Act lands as landholder or raiyat under personal
cultivation in excess of the .ceiling area d~termined in the
manner hereinafter provided.
"
By s. 38 the Government is authorised to grant exemption from
the operation of the ceiling in respect of certain classes of land.
Section 39 deals with the principles for determining the ceiling
area.
Sections 40, 41 & 42 deal with the filing of returns in
respect of lands in excess of the ceiling area on the date of commencement of the Act and the consequences of failure to submit
the return.· Section -43 provides for the preparation and publication of draft statements showing ceiling and surplus lands by the
Revenue Officer and s. 44 provides for the publication of the final
statement of ceiling and surplus lands after hearing objections, if
any, received and ,after making enquiries as the Revenue Officer
may deem necessary. Section 45 provides that :
"With effect from the beginning of the year next
,following the date of the final statement referred to in
sub-section (3) of section 44 the interests of the person
to whom the surplus lands relate and of all landholders
mediately or immediately under whom the surplus lands
were being held shall stand extinguished and the said
lands shall vest absolutely in the Government free from
all encumbrances."
Section 46 provides for determination of compensation. Section
47 sets out the principles for determining compensation. It provides that the compensation in respect of the interest of the landholders mediately or immediately under whom the surplus lands
are being held as a landholder or raiyat shall be fifteen times the
fair and equitable rent.
It also provides for payment of market
value of tanks, mells and of structures of a permanent nature
situate in the land, determined on the basis of fair rent in the
manner prescribe~ therein.
Sections 48 and 49 deals with the
preparation and publication of draft compensation assessment roll
and the final compensation assessment roll.
By s. 51 provision
was made for settlement of surplus lands vested in the Government under s. 45 with persons as raiyats in the order of prioritv
. mentioned therein and s. 52 imposes a ceiling on future acquisitions. It is provided thereby :
590
SUPREME COURT REPORTS
(1970] I S.C.R.
"The foregoing provisions of this Chapter shall,
muratis mutant/is, apply where lands acquired and held
under personal cultivation subsequent to the commencement of this Act by any person through inheritance, bequesl. gift, family settlement, purchase, lease or otherwise, together with the lands in his personal cultivation
at the time of such acquisition exceeds his ceiling limit.
"
By the amendments made in the Constitution by the I ?th 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 en the plea that it is inconsistent with or takes away or abridges any of the fundamental
rights conferred by Part III of the Constitution.
But the pcwer
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 Constitution
(Seventeenth Amendment) Act, 1964 does not therefore qualify
for the protection of Art. 31-B. See Raman/a/ Gu!abchand Shah
etc. v. State of Gujarat & Ors.( 1 ) Sri Ra . .'1 Ram Narain Medhi v.
The State of Bombay (').
This position is not disputed.
Chapter IV incorporated in the principal Act by Orissa Act
13 of 1965 when brought into force is liable to be challenged on
the ground that it is inconsistent with or takes away or abridges
any of the fundamental rights conferred by Part Ill of the Constitution. It wa~ urged however, and that plea has found favour
with the High Court, that s. 4 7 incorporated by Act 13 of 1965
which provided for compensation not based on the market value
of the land but at fifteen times the fair and equitable rent is incor.sistent with Art. 31-A, proviso 2, and is on that account void.
To appreciate the contention the constitutional provisions relating
to protection guaranteed by the Constitution against compulsory
a~quisition of property may be noticed.
By Art. 31 (2) as amended by the Constitution (Fourth Amendment) Act, 1955, insofar
as it is material, it !s provided :
"No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for
the property so acquired or requisitioned and eith"; foes
the amount of the compensation or specifie> the principles on which, and the manner in which. the compen-
(1) [1969/ IS.C.R. 42.
12) [1959! Supp. I S.C.P. ·1~?
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ORISSA V. CHANDRA SEKHAR (Shah, J.)
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Clause (2A) of Art. 31 which in substance defines the expression
"law" providing for compulsory acquisition enacts that :
"Where a law does not provide for the transfer of
the ownership or right to possession of any property to
the State or to a corporation owned or controlled by the
State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property."
By Art. 3 I (2) read with Art. 3 I (2A) property may be compulsorily acquired only for a public purpose and by authority of a
law which provides for compensation for the property so acquired
and either fixes the amount of the compensation or specifies the
principles on which, ar,d the manner in which, the compensation
is to be determined and given. In order that property may be
validly acquired compulsorily the law must provide for the transfer
of ownership or right to possession of any property to the State or
to a corporation owhed or controlled by the State.
By virtue of s. 45 of the principal Act "the interests of person
to whom the surplus lands relate and of all land-holders mediately
or immediately under whom the surplus land3 were being held
........ stand extinguished and the lands .. · .... vest absolutely
in the Government !,free from all encumbrances." This is clearly
compulsory acquisit)on of land within the meaning of Art. 31(2)
of the Constitution· and the compensation determined merely at
fifteen times the fair and equitable rent may not, prima facie,
be regarded as determination of compensation according to the
principles specified by the Act. But Art. 3 lA which applies to
the statute in question provides by the first clause :
"Notwithst11nding anything contained in Article 13
no Jaw providihg for-
{a) the. acquisition by the State of any estate or of
any rights therein or the extinguishment or modification
of any such rights, or
(b)
(c)
(d)
(e)
shall be deemed to be void on the ground that it is
inconsistent with, or takes away or abridges any of the
rights conferred by article 14, article 19 or article 31 :
..
598
SUPREME COURT REPORTS
[1970] 1 S.C.R.
The principal Act 16 of 1960 and the amending Act 13 of 1965
were both Acts enacted for ensuring agrarian reform, and the
lands held by the petitioners were "estates" within the meaning
of Art. 31-A. Bys. 45 the rights of the land-holders were sought
to be extinguished or modified.
But to the operative part of
Art. 31-A by s. 2 of the Constitution (Seventeenth Amendment)
Act, 1964, the second proviso was add~d. The second proviso
enacts:
"Provided further that where any law makes any provision for the r.cquisition by the State of any estate and
where any land comprised therein is held by a person
under his personal cultivation, it shall not be lawful for
the State to acquire any portion of such land as is within
the ceiling limit applicable to him under any law for the
time being in force or any building or structure standing thereon or appurtenant thereto,
unless
the
law relating
to the
acquisition of
such land,
building or structure, provides for payment of compensation at a rate which 'hall not be less than the market
value thereof."
By the Constitution (Seventeenth Aruendment) Act, l Q64, it was
clearly enacted that under an;• law which provides for the acquisition of any land in an estate under the penonal cnltivation of
the holder, compensation shall not be less than the market value
of the land if such land be within the ceilin$ limit applicable to
the holder under any law for the time being m force.
Before the High Court it was urged on behalf of the landholders that when the principal Act was enacted it became law
in force, and the ceiling limit prescribed thereby became effective,
even though Ch. IV was not extended by a notification under s.
1 (3) of the Act, and since the subsequent legislation seeks to
restrict the ceiling limit and to vest the surplus land in the Government under s. 45 as amended, there is compulsory acquisition
of land which may be laid only if the law provides for payment to
the landholder for extinction of his interest, the market value of
that part of the surplus land which is within the ceiling J;"llit under
the principal Act.
This argument found favour with the High
Court. In their view the expression "law in force" must be "construed only in the constitut!onal sense and not in the sense of its
actual operativeness", and on that account it must be held that
"there was a ceiling limit already provided by the principal Act
as it was 'law in force' within the meaning of that expression as
used in the second proviso to Art. 31-A". They proceeded then
to hold that s. 4 7 of the Act as amended provided for payment of
compensation at a rate which is less than the market value of
the land falling within the ceiling limit a.• originally fixed under
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OR!SSA V. CHANDRA SEKHAR (Shah, J.)
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Act 16 of 1960, and the guarantee of the second proviso to Art.
31-A of the Constitution is on that account infringed. We are
unable to accept this process of reasoning. · The right to compensation which is not Jess than the market value under any Jaw
providing for the acquisition by the State of any land in an estate /
in the personal cultivation of a person is guaranteed by the second
proviso only where the land is within the ceiling limit applicable
to him under any law for the time being in force. A law cannot
be said to be in force unless it is brought into operation by legislative enactment, or by the exercise of authority by a delegate
empowered to bring it into operation.
The theory of a statute
being "in operation in a constitutional sense" though it is not in
fact in operation has, in our judgment, no validity.
Again Ch. IV of the principal Act was repealed by the Amending Act 15 of 1965.
Article 31-A proviso 2 guarantees to a
person, for compulsory acquisition of hi~ land, the right to compensation which .is not Jess than the market value, when the land
is within the ceiling limit applicable to him under a law for the
time being in force. : On the plain words of the proviso the law
prescribing the ceiling limit must be in force at the date of acquisition. In the present case the Jaw relat\Iig to the ceiling limit viz.
Ch. IV of the principal Act was never made operative by a notification, and was repealed by Act 15 of 19(i5. The ceiling limit
under s. 47 of the principal Act was on that account inapplicable
to the landholders who challenged the validity of s. 45 of the
amending Act.
The decision of this Court A. Thangal Kunju Mudaliar v. M.
Venkatachalam Potti and Anr.( 1 ) on which the High Court relied
lends no support to the views expressed by them. In that case
the Travancore State Legislature enacted Act 14 of 1124 M.E. to
provide for investigating cases of evasion of tax. The Act was
to come into force by s. 1 (3) on the date appointed by the State
Government by notification.
The · States of Travancore and
Cochin merged on July l, 1949 and formed the United State of
Travancore and Cochin. By Ordinance 1 of 1124 M.E. all existing laws of the Traval)core State were to continue in force in the
United State.
By a notification the Government of the United
State brought the Travancore Act 14 of 1124 (M.E.) into force,
and referred cases of· certain tax-payers for investigation to the
Commission appointed in that behalf.
The tax-payers challenged the authority of the Commission to investigate the cases. They
contended that the Travancore Act 14 of 1124 (M.E.) not being
a law in force when the United State was formed, the 'notification·
bringing the Act into i.force was ineffective. The ·court rejected
that plea. Section 1(3) of Travancore Act 14 of 1123 (M.E.) was
(I) (19551 2 S.C.R. 1196.
'L14 Sup. C.I./69-9
600
SUPREME COURT REPORTS
[1970] I s.c.11..
existing law on July l, 1949, and continued to remain in force
by virtue of Ordinance 1 of 1124 (M.E.). The notification issued
in exercise of the power under s. 1 (3) of the Travancore Act 14
of 1124 (M.E.), the reference of the cases of the petitioners, the
appointment of the authorised officials and the proceedings uPder
the Act could not be questioned because s. 1(3) was existing law
on July 1, 1949.
In A. Thangal Kunju MuJa/iar case(') the contention that
Travancore Act 14 of 1124 (M.E.) was not law in force until a
notification was issued bringing into operation the provisions of
the Act, authorising the appointment of a Commission, and referring the cases of tax-payers to the Commission, was rejected.
The Court held thats. 1(3) was in operation on July l, 1949 and
the power to bring into force the provisions of the Travancore
Act was exercisable by the successor State. It was not held that
the other provisions of the Act were in force even before an appropriate notification was issued. In the case in hand s. 1 (3) of
the principal Act was in force, but Ch. IV of the Act was not
brought into force.
The argument that pro"isions of the Act
which by a notification could have been but were not brought
into force, must still be deemed to be law in force, derives no
support from the case relied upon.
Section 1 (3) of Act 16 of 1960 is undoubtedly a law in force,
but until the power is exercised by the State Government to issue
an appropriate notification, the provisions of Ch. IV could not
be deemed to be law in force, and since no notification was issued
before Ch. IV of the principal Act was repealed, there was no
ceiling limit applicable to the landholders under any law for the
time being in force which attracted the application of the second
proviso to Art. 31-A.
The appeals must, therefore, be allowed, and the order passed by the High Court declaring Ch. IV of Act 13 of 1965
BI?endinjl Act 1 ~ of _1960 ultra vires, be set aside.
The State
will get its costs m th!S Court from the respondents. There will
be one hearing fee.
There will be no order as to costs in the
High Court.
R.K.P.S.
Appeals allowed.
(I) [1955) 2 S.C.R. 1196.
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