Land Law in India: With Special Reference to the Constitution

Author(s): R. S. Gae
Source: The International and Comparative Law Quarterly , Apr., 1973, Vol. 22, No. 2
(Apr., 1973), pp. 312-328
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law

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LAND LAW IN INDIA: WITH SPECIAL REFERENCE TO
THE CONS'II'I'UTION

By

R. S. GAE *

THE truth of Justice Holmes' succinct observation that "The life of

the law has not been logic, it has been experience" 1 is nowhere
more clearly illustrated than in the history of the constitutional
provisions relating to land reforms in India. For an understanding
of the developments in land reforms it would be necessary to trace
out, at least in outline, the social, economic and political background
in which these developments took place. However, before embarking
upon any discussion on the subject it may be pointed out that it
would not be possible in a brief study like the present one to go
into the details of the land legislation and land reforms in India.
The size of the country, the magnitude of the problems facing it and
the variety of the systems of land tenures prevailing in it make any
such discussion in this paper extremely difficult, if not impossible. At
the same time certain broad principles relevant to the subject are
discussed below with special reference to the Constitution of India.
The magnitude of the problem is evident from the fact that even
Baden-Powell's classical work in three volumes on Land Systems of
British India could not treat the problem of land tenures in full
detail. The problem has become all the more complicated in view
of the integration of the former Indian States 2 within the Union of
India when India became independent under the Indian Independence
Act 1947.3 There are also a variety of local tenures peculiar to
particular districts or even parts of the districts, enhancing thereby
the difficulties regarding land tenures prevailing in this country.

LAND REFORM LEGISLATION

By and large land reform legislation in India follows a gener

The background for this legislation is to be sought in the

* Permanent Secretary, Ministry of Law and Justice, Government o

Delhi.
1 Holmes, The Common Law, edited by Mark de Wolfe Howe (1963), p. 5.
2 These were "Princely States" controlled by the British Government indirectly
through treaty arrangements with their princely sovereigns outside British India.
3 10 & 11 Geo. 6, c. 30.
312

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APRIL 11973] Land Law in India 313

of the times. Even before the attainment of Independence by Ind

on August 15, 1947, the Indian National Congress, the political part
which came to power at the Centre as well as in the Provinces
immediately after Independence and which has generally continued
to be in power, had been advocating land reforms from the very
beginning by eliminating the feudal intermediaries and by bestowin
security of tenure and economic stability on the peasantry.
The aims of land reforms have changed from time to time. One
of the persistent demands of the Indian National Congress during it
early years was the extension of the permanent settlement of land
to non-settled areas in order that the rights of landlords might be
protected. It was only later that the content of these demands changed
to demands for protecting the rights of the agricultural labourer, the
share cropper and the small tenant. It was by these new demands
that the character of the organisation itself underwent a change.
The significant association of the political parties with the present
demand can be said to have commenced with the launching of
Champaran Satyagraha (civil disobedience movement) led by Mahatm
Gandhi in Bihar in early 1917 and Kaira (Gujarat) Satyagraha later
in the same year.5 The Karachi Resolution of the Congress Party,
adopted in March 1931, was the most comprehensive statement of
the combined elements in the development of the programme of
civil rights including justiciable rights, protection for minorities an
principles of positive reform.6 Among the provisions of the Karac
Resolution were calls for land reform.7 Although certain specific
demands in this regard came to be made by other bodies like Kisa
Sabhas (peasant associations) with which the Congress was asso
ciated, the Congress Party in the beginning confined itself to demand-
ing land reforms in general terms. In its election manifesto of 1936
it only pleaded for reform of the land tenure, revenue and rent
without spelling out what the nature of the reforms should be.8 It
was only in the election manifesto of 1946 that the Congres
specifically put forward as its objective the removal of intermediaries
between the peasants and the State and the acquisition of the right
on payment of equitable compensation as the first step in the refor
of the land system.9 This was the beginning of a series of enactments
designed to alter the agrarian system of the country which had, in its
turn, constitutional repercussions.

4 Called States after the commencement of the Constitution. States are constituent
units that make up the Union of India.
5 Malaviya, Land Reforms in India (1954), p. 3.
6 Some of them eventually became embodied in the Directive Principles of State
Policy contained in Part IV of the Constitution of India.
7 Merillat, Land and the Constitution in India (1970), p. 39.
8 Malaviya, Land Reforms in India (1954), pp. 65, 66. 9 See Malaviya, ibid. p, 75.

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314 International and Comparative Law Quarterly [VOL. 22

In view of the vastness of the country and the problems relating

to land laws, an understanding of the nature of the legislation under-
taken by government would be facilitated if the developments of the
agrarian reform laws relating to one particular State in the Union
of India are taken into consideration. The State of Tamil Nadu 10
is chosen for the purpose.

ZAMINDARS AND OTHER INTERMEDIARIES

Prior to the attainment of Independence in 1947, the sys

tenure was inextricably mixed up with the land revenu
There were various systems in existence, the most impo
the zamindari, ryotwari and the mahalwari.ll In the St
Nadu, the mahalwari system was not to be found. Barr
special forms of tenure, the areas could be divided into z
areas and ryotwari 13 areas.
The basis of the zamindari system is the permanent
which was first introduced by Lord Cornwallis in Benga
tion 2 of 1793. The system was introduced in the Madra
in the year 1802. The basis of this system is that the Sta
to fix in perpetuity the dues from the land. In add
zamindars, who were to a considerable extent revenue farmers, were
declared to be the owners of the land.
The equation of the zamindars with the English Lords of the
Manors was the source of much of the subsequent difficulties. In
the permanently settled areas most of the zamindars did not concern
themselves with the cultivation of the land but let out their rights to
middlemen. A series of middlemen came and the process of sub-
infeudation continued with the rentals being enhanced at every stage.
Because of this there was little security for the actual cultivator whose
rents were raised from time to time, though the revenue payable by
the zamindars to the Government remained fixed. In political par-
lance the term " zamindar" came to mean a large landowner holding
thousands of acres of land and scores of villages and thereby conveyed
the image of a rich absentee landlord or oppressive local boss
extracting exorbitant rents from those who tilled the soil.'4

10 Till recently known as the State of Madras. For appraisal of the implementation
of land reforms in the said State, see Sonachalam, Land Reforms in Tamil Nadu
(1970).
11 See Kotovsky, Agrarian Reforms in India (1964), p. 2; see also Baden-Powell,
Land Revenue and Tenure in British India (1907), pp. 148, 149.
12 Zamindari is a superior form of interest in land, specially in the northern parts
of India, the holder of which collected rents from those having subordinate
interests and paid land revenue to the Government.
13 Ryotwari is a system of land tenure in which land is held directly from the State
by the peasant proprietor.
14 Merillat, Land and the Constitution in India (1970), p. 20.

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APRIL 1973 ] Land Law in India 315

STEPS TOWARDS AGRARIAN LAND REFORM

The first step towards the agrarian land reform in the coun
the abolition of the zamindari system. As a precursor to th
reform, rents fixed in the zamindari areas were reduced by
to the level of the land revenue payable for the correspondin
in the ryotwari areas. In the State of Tamil Nadu this was t
of the Madras Estates Land (Reduction of Rent) Act 1947,15
subsequently of the Madras Estates (Abolition and Conversio
Ryotwari) Act 1948.16 The latter Act abolished zamindari es
(permanent settlements), converted the occupancy tenants o
zamindars into peasant proprietors under the ryotwari tenur
these proprietors paid their land revenue direct to the Gover
The zamindar's right to collect rent on behalf of government
as his rights to collect cesses and other dues were also aboli
As regards the land under his own personal cultivation or
private lands, the zamindar became a land-holder paying rent
to the Government like his former tenants. The compensatio
vided for the purpose was based upon a multiple of the ann
income of such land, the multiple varying from 12-5 times the a
net income in the case of estates whose annual net income exceeded
1,00,000 Rupees to 30 times such income in the case of estates whose
net income did not exceed 1,000 Rupees.7
The obligation to pay compensation for the above purpose arose
by virtue of the provisions contained in the Government of India
Act 1935 18 which was in force at the relevant time. This Act, as
originally enacted, not only provided for the payment of compensa-
tion for the compulsory acquisition of land and the like, but also
contained certain special safeguards with regard to the rights of
holders of zamindari and other estates.l9 Special provisions as
contained in section 299 (3) of the Government of India Act 1935
were considered necessary by the Joint Parliamentary Committee
which examined the Bill, on the ground that the rights of persons
like zamindars, jagirdars, inamdars, etc., were a form of "vested
interest " in India which required specific protection.20
After the attainment of independence it was felt that there was
no need for protection of any "vested interest" in land. A large
section of the public was apprehensive that the safeguards contained
in the Government of India Act 1935 might stand in the way of the

15 Madras Act 30 of 1947.

16 Madras Act 26 of 1948.
17 See Sonachalam, Land Reforms in Tamil Nadu (1971), p. 167.
18 26 Geo. 5, c. 2.
19 See s. 299 of the Government of India Act 1935.
20 See Seervai, Constitutional Law of India (1967), p. 512.

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316 International and Comparative Law Quarterly [VOL. 22

effective implementation of land reforms for the abolition of

zamindaris and the laws relating thereto enacted after Independence,
when the said Act was still in force, but before the commencement
of the Constitution of India on January 26, 1950. This apprehension
was responsible for the insertion of clause (6) of Article 31 of the
Constitution.21

ARTICLE 31 OF THE CONSTITUTION

This brings us to Article 31 of the Constitution dealing with the

compulsory acquisition of property. This was one of the most
controversial provisions included in Part III of the Constitution
dealing with fundamental rights. The exceptional importance
attached to this Article is demonstrated by the fact that not only its
adoption in the original form in the Constituent Assembly but also
the first amendment to the Article was moved in Parliament by the
Prime Minister, Pandit Jawaharlal Nehru, himself. While moving
for the adoption of this Article the Prime Minister expressly referred
to the revolutionary nature of the land reforms which were then
contemplated and added that the Congress Party had pledged itself
to the abolition of the feudal zamindari system and that it was
necessary to ensure its abolition rather than risk a reform which
would come into existence not by law but by other means.22 Further
there were the long-standing pledges of those who had worked for
independence to bring about a fairer distribution of wealth and the
need to use the machinery of the State to bring about rapid economic
development and land reform. The directive principles of State
policy, though not justiciable in the courts, included general expres-
sions of such aims to govern this action.23 Article 31 is relevant
for the purpose of the above pledges.
The thinking in the ruling party, the Indian National Congress,
was divided on the subject of payment of compensation for com-
pulsory acquisition of property. There were three main points of
view. One was in favour of payment of full compensation for
acquisition of property. The second favoured something less than
full payment, especially in major schemes of social reform. The
third wanted zamindars to be dealt with on a special basis, favour-
ing payment of amounts much less than the market value of the
21 This clause is discussed on pp. 317-318, infra.
22 See Alexandrowicz, Constitutional Developments in India (1957), p. 81.
23 See, e.g., Art. 39: "The State shall, in particular, direct its policy towards
securing . . . (b) that the ownership and control of the material resources of the
community are so distributed as best to subserve the common good; (c) that
the operation of the economic system does not result in the concentration of
wealth and means of production to the common detriment." See also Merillat,
"Chief Justice S. R. Das: A Decade of Decisions on Right to Property"
(1959) 2 J.I.L.I. 184.

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APRIL 1973] Land Law in India 317

property acquired.24 Article 31, as enacted at the time of

commencement of the Constitution, is a compromise formula rep
senting different shades of views emerging in the Constituent Assem
on the subject.

LIMITATIONS ON LEGISLATIVE POWER REGARDING COMPULSORY

ACQUISITION OF PROPERTY

Article 31 (2),25 as originally enacted, imposed the following limita-

tions and restrictions on the legislative power of Parliament or a
State legislature regarding compulsory acquisition of property,
namely: (a) that the compulsory acquisition of property must be
for a public purpose; (b) that such acquisition must be by authority
of law; (c) that such law must provide for compensation 26 for the
property so acquired; and (d) that the law must either fix the amount
of the compensation or specify the principles on which, and the
manner in which, the compensation is to be determined and given.
A State law on the subject is required to be reserved for the con-
sideration and assent of the President 27 and is thus subject to a veto
by the Central Government. Further the Supreme Court has recently
held that Article 19 (1) (f)28 and Article 31 (2) are not mutually
exclusive.29 In view of this a law for compulsory acquisition of
property is subject to one more limitation, namely, that such a law
must constitute reasonable restrictions on the exercise of the right
conferred by Article 19 (1) (f) in the interests of the general public.30

EXCEPTIONS TO THE PROVISIONS CONTAINED IN ARTICLE 31 (2)

Existing laws are not affected by the provisions contained in Article

31 (2).31 Further while referring to the old policy of the Indian
National Congress regarding the abolition of zamindaris in the
country, the Prime Minister, Pandit Jawaharlal Nehru, pointed out

24 See Merillat, Land and the Constitution in India (1970), p. 56.

25 This Article is primarily based on the corresponding provisions of s. 299 (2)
of the Government of India Act 1935.
26 The Article used the word "compensation" simpliciter without having any
qualifying word like "just" or "adequate." For the views expressed in the
Constituent Assembly in this behalf, see Granville Austin, The Indian Con-
stitution: Cornerstone of a Nation (1966), pp. 88, 91.
2; See Art. 31 (3).
28 Dealing with the right to acquire, hold and dispose of property.
29 Rustom Cavasjee Cooper v. Union of India (commonly known as the "Bank
Nationalisation Case ") (1970) 3 S.C.R. 530.
30 This has recently undergone a change in view of the Constitution (Twenty-fifth
Amendment) Act 1971 providing that nothing in Art. 19 (1) (f) shall affect the
law for compulsory acquisition of property referred to in Art. 31 (2).
31 See Art. 31 (5) (a). See also Art. 31 (5) (b).

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318 International and Comparative Law Quarterly [VOL. 22

that the pledge given for the purpose would be fully honoured.32
This has been duly carried out by enacting clauses (4) and (6) of
Article 31. Protection against challenge for contravention of the
provisions of Article 31 (2) has been given to any Bill pending at
the commencement of the Constitution33 in a State legislature, if
such Bill has, after it is passed by the State legislature, been reserved
for the consideration of the President and received his assent as
contemplated by clause (4) of Article 31. Further any State law
enacted not more than 18 months before the commencement of the
Constitution has also been saved from challenge for contravention
of the provisions of Article 31 (2) or the provisions of section 299 (2)
of the Government of India Act 1935 if such law is submitted for
certification by the President within three months from such com-
mencement and the President certifies the same under clause (6) of
the Article. State laws so saved mainly related to agrarian reform.
It is thus clear that while drafting Article 31 (2) special care has
been taken to see that the various Zamindari Abolition Acts, which
had been passed by the State legislatures or were pending before the
legislatures at the time of the commencement of the Constitution,
were not struck down by the courts on the ground of inadequacy of
compensation. So far as the State of Madras is concerned, the
validity of the Madras Estates (Abolition and Conversion into
Ryotwari) Act 1948 34 has been upheld by the Supreme Court in
view of the provisions of Article 31 (6) of the Constitution.35 Bills
on the subject were pending before the legislatures of some of the
States at the time of the commencement of the Constitution. It is in
view thereof that clauses (4) and (6) of Article 31 referred to above
were inserted in the article.

THE FIRST AMENDMENT

Soon after the enactment of the Constitution, several Sta

ments carried out certain measures of agrarian refor
reform 36 by enacting legislation which may collectively be c
Zamindari Abolition Acts. The validity of these Acts was

32 Constituent Assembly Debates, Vol. IX (1949), p. 1193.

33 i.e., on Jan. 26, 1950.
34 Madras Act 26 of 1948.
35 Zamindar of Ettayapuram v. State of Madras (1954) S.C.R. 761.
36 " Land reform" is here taken to include the abolition of intermediaries, pro-
tection of tenants against eviction, control of land rents, consolidation of land
holding, prevention of fragmentation, transfer of ownership rights to tenants,
imposition of ceilings on the amount of land that can be held by one person or
family unit, distribution of surplus land among the landless and others and
settlement of landless agricultural workers. These are broadly the combination
of inter-related measures envisaged by the Second and Third Five-Year Plans.

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APRIL 1973] Land Law in India 319

in the High Courts in spite of the safeguards provided by clauses (4)

and (6) of Article 31. The Patna High Court held that the Bihar
Land Reforms Act 1950 37 was unconstitutional, not on the ground
of inadequacy of compensation as such challenge was barred, but on
the ground that it contravened the provisions of Article 14 of the
Constitution.38 On the other hand the Allahabad and the Nagpur
High Courts upheld the validity of the corresponding laws in Uttar
Pradesh and Madhya Pradesh respectively. With a view to putting
an end to dilatory litigation and to safeguarding fully various land
reform laws against any attack for violation of fundamental rights
Parliament amended the Constitution by the Constitution (First
Amendment) Act 1951. The amendment thus became necessary to
achieve the objective of agrarian reform, having regard to the directive
principles of State policy contained in Article 39, included in Part IV
of the Constitution.
The First Amendment Act inserted two new articles, namely,
Article 31A and Article 31B. Article 31A broadly provides that no
law providing for the acquisition by the State of any estate39 or of
any rights therein shall be deemed to be void on the ground that it is
inconsistent with, or takes away or abridges any of the rights con-
ferred by, any provisions of Part III of the Constitution. Thus,
while Article 31 (4) saved Bills pending at the time of the enactment
of the Constitution in the State legislatures (on receiving the Presi-
dent's assent) from challenge on the ground that they contravened
the provisions of Article 31 (2), the new Article 31A saved the laws
providing for acquisition of estates from challenge on the ground of
violation of any of the fundamental rights guaranteed by the said
Part. Article 31B validated retrospectively 13 Acts and Regulations
specified in the Ninth Schedule to the Constitution, which, but for
such provision, would have been liable to be impugned under Article
13 (2). Thus these Acts and Regulations cannot now be challenged
for violating the provisions of Article 14,40 Article 19 41 or Article
31 42 or any other provisions contained in Part III. The Acts and
Regulations so validated mainly related to legislation by the States
regarding agrarian reform. The main object of the Amendment Act
was to keep the laws regarding land reforms 43 free from the rigours

37 Bihar Act 30 of 1950.

38 Kameshwar Singh v. State of Bihar, I.L.R. (1951) Pat. 454 (F.B.).
39 The expression " estate " is defined in the Article.
40 Dealing with equality before law and equal protection of laws.
41 Dealing with, inter alia, the right to acquire, hold and dispose of property and
the right to carry on a business, subject to " reasonable restrictions."
42 Dealing with payment of compensation for State acquisition, which must be for
a public purpose.
43 e.g., laws for the abolition of zamindaris, jagirdaris and other forms of inter-
mediaries.

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320 International and Comparative Law Quarterly [VOL. 22

of fundamental rights contained in the said Part as intended by the

Constituent Assembly.
The validity of the First Amendment Act was challenged by the
zamindars before the Supreme Court in Sankari Prasad v. Union of
India.44 However, the challenge failed and the Court upheld the
validity of the said Act. As observed by Sastri C.J., in another case,
"the zamindars lost the battle in the last round when this Court
upheld the constitutionality of the Amendment Act." 45
Article 31A and Article 31B, as originally enacted, were limited
in their scope.46 They were originally enacted to validate the land
reform laws, particularly those providing for the abolition of
zamindaris, the acquisition of estates and the like. Thus the abolition
of zamindaris could be said to have been virtually effected by the
Constitution (First Amendment) Act 1951.

THE FOURTH AMENDMENT

Soon after the commencement of the Constitution the current of land

reform began to move in a different direction. The Agrarian Reforms
Committee of the Congress, appointed in furtherance of the policy of
progressive land reform adopted by the Congress Party, submitted
its Report in 1949, crystallising the views of the Party on various
aspects of land reform. The recommendations made by that Com-
mittee required to be duly implemented and steps in that direction
began gradually to be taken up in the matter.
The approach to national policy, as envisaged in the Five Year
Plans, also began to change. In the First and the Second Five Year
Plans, the accent was unmistakably on increased production and
improved social justice. These Plans were primarily production-
oriented with regard to the agricultural sector and sought an increase
in production and diversification of the produce.47 It was, however,
gradually felt that the social objective of reducing disparities in
wealth called for imposition of ceilings on existing agricultural hold-
ings and the provision of security to tenants.48 The aim of improved
social justice was to secure a reduction in the disparities between the
lots of the rich and the poor, an end to exploitation of workers on
the land by landlords, a confirmation of holdings in the hands of

44 (1952) S.C.R. 89. In Golak Nath v. State of Punjab (1967) 2 S.C.R. 762, the
Supreme Court by a majority reversed its decision in Sankari Prasad's case,
but virtually upheld the validity of the First Amendment by applying the
doctrine of prospective overruling.
45 State of Bihar v. Kameshwar Singh (1952) S.C.R. 889 at 899.
46 These Articles, as they now stand, are in certain respects far reaching in effect.
47 See Appu, Ceiling on Agricultural Holdings (1971), p. 9.
48 See Planning Commission, The Second Five Year Plan (1956), p. 194.

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APRIL 1973] Land Law in India 321

those who actually worked the soil and the promise of more equal
status and opportunity for those who lived on the land. Further,
with a view to attaining the socialist pattern of society, as envisaged
by the Constitution, emphasis was laid on the attainment of positive
goals such as land reform, the raising of living standards, the enlarge-
ment of opportunities for all, the promotion in enterprise among the
disadvantaged classes and the creation of a sense of partnership
among all sections of the community.
In the meantime certain decisions of the Supreme Court49 on
property rights conferred by Articles 19 and 31 of the Constitution
resulted in a further amendment of Articles 31 and 31A by the
Constitution (Fourth Amendment) Act 1955. These amendments
sought to make it clear that the courts should not go into the
question of adequacy of compensation for compulsory acquisition of
property 50 and further to lay down what constitutes " compulsory
acquisition of property" (referring to State acquisition only),51 so a
to attract the provisions of Article 31 (2) relating to payment of
compensation for such acquisition. The Amendment Act made
further alterations in Article 31A, whereby certain types of laws 52
have been protected against any attack based on the fundamental
rights guaranteed by Articles 14, 19 and 31.53 It added seven more
Acts in the Ninth Schedule to the Constitution, making them immune
from challenge for violating any of the provisions contained in Part
III and gave retrospective effect to the above amendments.
In the State of Madras, as it then was, the demand for the
regulation of tenures and the restriction on the rights of the land-
lords led to the passing of the Madras Cultivating Tenants Protection
Act 1955 54 and the Madras Cultivating Tenants (Payment of Fair
Rent) Act 1956.55 The former Act, which was an emergency measure
aimed at preventing unjust eviction of cultivating tenants, sought to

49 See State of West Bengal v. Bela Banerjee (1954) S.C.R. 558: State of West
Bengal v. Subodh Gopal Bose (1954) S.C.R. 587; Dwarkadas Srinivas v.
Sholapur Spinning and Weaving Co. Ltd. (1954) S.C.R. 674 and Saghir Ahmad
v. State of Uttar Pradesh (1955) 1 S.C.R. 707. In the first case the Supreme
Court construed the expression "compensation" occurring in Art. 31 (2) as
just equivalent or full indemnification of what the owner has been deprived
This ran counter to the intent of the framers of the Constitution in the matter.
For a full discussion on the subject, see Gae, Bank Nationalisation Case and the
Constitution (N. M. Tripathi Private Ltd., 1971), pp. 108-113.
50 See Art. 31 (2).
51 See Art. 31 (2A).
52 Acquisition of an estate or modification of rights therein, temporary taking over
of the management of any property, amalgamation of corporations, modification
of rights of managing agents and other managerial officers in a corporation and
modification of rights arising from leases for minerals and mineral oils.
53 And not against all the provisions of Part III, as was done by the Constitution
(First Amendment) Act 1951.
54 Madras Act 25 of 1955.
55 Madras Act 24 of 1956.

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322 International and Comparative Law Quarterly LVOL. 22

protect the rights of cultivating tenants who were in possession as on

December 1, 1953, for a period extending up to eight years pending
the enactment of fresh agrarian legislation. In addition, the former
Act also lays down conditions under which landlords could reclaim
the land. Land could be reclaimed for personal cultivation under
certain circumstances, but if the land so reclaimed is not used for
personal cultivation, the land would revert to the former tenant.
The latter Act, as its name implies, sought to limit the rent recover-
able by landlords. A fair rent was determined for land depending
upon its nature and the intensity of irrigation. The rents were to
be in force for a period of five years and allowance was made for
the variation of the rent in the event of the production being affected
by seasonal vagaries. This, in its turn, was followed by legislation
intended to impose a ceiling on land holdings. This was done by
the Madras Land Reforms (Fixation of Ceiling on Land) Act 1961.56
Ceilings based upon the concept of a standard acre are worked out
and the maximum area which could be owned by a family is fixed
at 30 standard acres 57 for a family of not more than five members
and for families of more than five, an addition of five standard acres
for every member was fixed. Certain exemptions have been given
to cover cases of plantations and the like. Land over the ceiling
limit is to vest in the government for the benefit of those without
land and for other public purposes.
Legislation on the above pattern proceeded on the basis that it
was covered by Article 31A on the ground that such legislation
dealt with " estates." 58

THE SEVENTEENTH AMENDMENT

The Kerala Agrarian Relations Act 196159 was struck dow

Supreme Court in its application to ryotwari lands in the
State of Madras. It was held that the lands held by ryotw
were not "estates" within the meaning of Article 31A
hence the said Act was not protected from attack under A
19 and 31 of the Constitution.60 The Court also struck down the
Madras Land Reforms (Fixation of Ceiling on Land) Act 1961 61 on
the grounds (a) that the provisions of section 5 (1) of the Act laying
down the ceiling area resulted in discrimination between persons in
the same circumstances and thus violated Article 14, (b) that the

56 Madras Act 58 of 1961.

57 Since reduced to 15 standard acres.
58 " Estate " is defined by Art. 31A (2) (a) of the Constitution.
59 Kerala Act 4 of 1961.
60 Karimbil Kunhikoman v. State of Kerala (1962) Supp. I S.C.R. 829.
61 Madras Act 58 of 1961.

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APRIL 1973] Land Law in India 323

provisions of section 50, read with Schedule III with respect to

compensation, were also discriminatory and thus violated the said
Article and (c) that as these two sections were basic provisions of
the Act, the whole Act must be struck down as unconstitutional.62
Several other state Acts relating to land reform were also struck
down by the courts on similar grounds. This led to the enactment
of the Constitution (Seventeenth Amendment) Act 1964.
The amendment to Article 31A, consequent on the judicial pro-
nouncements referred to above, enlarged the definition of "estate"
occurring in the article, so as to include any land held under
ryotwari settlement as well as other lands in respect of which pro-
visions are normally made in land reform enactments. It further
made a special provision regarding compensation payable for
acquisition of land in certain cases. When land within the ceiling
limit fixed by local law for the time being in force and comprised in
an estate is held by a person under his personal cultivation, acquisi-
tion of such land can only be made by paying compensation at a
rate not less than its market value. Thus Parliament sought to save
the small peasant proprietors or owner-cultivators holding land
(forming part of an estate) within the ceiling by guaranteeing them
the market value for their holding. Simultaneously the Amendment
Act inserted 44 more Acts relating to land reform (including the
Madras Acts referred to above) in the Ninth Schedule to the Con-
stitution in order to remove any uncertainty or doubt that might
arise with regard to their validity. The effect of such inclusion is
to bring these Acts within the protection of Article 31B. Conse-
quently none of these Acts, nor any provisions thereof, can be
challenged as violating the provisions of Part III including Articles
14, 19 and 31 of the Constitution.
It is now well accepted that the protection of Article 31A (1) (a)
regarding acquisition of an estate extends only to legislation con-
cerned with agrarian reform, i.e., the reform pertaining to agriculture.
The implication of the expression "agrarian reform" is necessarily
not precise, but it has been widely construed by the Supreme Court,
so as to include provisions made for the development of the rural
economy. However, a law regarding industrial development is not
protected by the said Article.63
The validity of the Constitution (Seventeenth Amendment) Act
1964 was challenged in Sajjan Singh v. State of Rajasthan.6' The
Supreme Court, following its earlier decision in Sankari Prasad v.

62 Krishnasami Naidu v. State of Madras (1964) 7 S.C.R. 82 at 87 and 88.

63 For further discussion on the subject, see Gae, Bank Nationalisation Case and
the Constitution (N. M. Tripathi Private Ltd., 1971), pp. 136, 137.
64 (1965) 1 S.C.R. 933.

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 324 International and Comparative Law Quarterly [VOL. 22

Union of India,65 held that the word "law" in Article 13 (2) does
not include a law passed by Parliament by virtue of its constituent
power taking away or abridging the fundamental rights guaranteed
by Part III of the Constitution and hence the impugned Act is
constitutionally valid.66

GOLAK NATH DECISION

The validity of the First, Fourth and Seventeenth Amen

relating to " right to property" was challenged in the Sup
in Golak Nath v. State of Punjab.67 The matter was con
the Full Court consisting of 11 judges and the far-reachi
of the Court was given on February 27, 1967. The Co
that the expression "law" as defined by Article 13 (3) in
only the law made by Parliament in exercise of its ordinary
power but also an amendment of the Constitution made
of its constituent power and hence such an amendment w
under Article 13 (2) if it takes away or abridges the right
by Part III of the Constitution. The Court accordingl
the First, Fourth and Seventeenth Amendments abridg
of the fundamental rights and are therefore void under Art
However, on the application of the American doctrin
pective overruling" 69 the decision of the Court will
prospective operation and hence the aforesaid three Amen
will continue to be valid. Thus the decisions in Sankari Prasad's
Case 70 and Sajjan Singh's Case 71 were virtually overruled.
The effect of the majority judgment in Golak Nath's Case72 is
that the First, Fourth and Seventeenth Amendment Acts, laws enacted
by Parliament or State legislatures in pursuance thereof and any
action taken in pursuance of laws so enacted, are valid and continue
to be valid, even though they take away or abridge any of the rights
conferred by Part III of the Constitution. As from February 27,
1967, Parliament is not competent to amend the Constitution or to
enact any law in pursuance of such amendment, if the amendment

65 (1952) S.C.R. 89.

66 The decision was by a majority of three to two.
67 (1967) 2 S.C.R. 762.
68 The decision was by a majority of six to five.
69 This doctrine was applied by five judges constituting the majority, whereas the
sixth judge relied on the doctrine of "acquiescence" in relation to the First
and Fourth Amendments. See (1967) 2 S.C.R. 762 at 813 and 902. It is
submitted that the Golak Nath decision requires reconsideration in several
respects. For a critique on the said decision, see Gae, op cit. supra, pp. 140-144.
The Golak Nath decision is now being reconsidered by a Constitution Bench of
the Supreme Court consisting of 13 judges.
70 (1952) S.C.R. 89.
71 (1965) 1 S.C.R. 933. 72 (1967) 2 S.C.R. 762.

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APRIL 1973] Land Law in India 325

takes away or abridges any of the fundamental rights conferr

Part III of the Constitution.

TWENTY-FIFTH AMENDMENT

The last amendment of the Constitution relevant for the pur

land law and land reform is the Constitution (Twenty-fifth A
ment) Act 1971. In the Bank Nationalisation Case the Supreme
Court held that the expression "compensation" in Article 31 (2)
after the Constitution (Fourth Amendment) Act 1954 continued to
have the same meaning as it had before such amendment, namely,
just equivalent or full indemnification of what the owner has been
deprived of.73 This virtually means that the adequacy of compensa-
tion and the principles laid down by the legislature for determining
the amount of compensation are justiciable in spite of Article 31 (2)
as amended. This caused great difficulty in fulfilling the programme
of socialist pattern of society as contemplated by the Constitution,
resulting in the enactment of the Constitution (Twenty-fifth) Amend-
ment Act 1971 to overcome the difficulty caused in the matter.
Article 31 (2) has been further amended by substituting the word
" amount" in place of the word " compensation " and by providing
that such amount may be given otherwise than in cash. Further, a
new Article, namely, Article 31C, has been inserted, providing that
if any law is passed to give effect to the directive principles of State
policy contained in clauses (b) and (c) of Article 39 74 and contains
a declaration to that effect, such law shall not be deemed to be void
on the ground that it takes away or abridges any of the rights
conferred by Articles 14, 19 or 31 and shall not be questioned in any
court on the ground that it does not give effect to such policy. Thus
a law giving effect to directive principles specified in clauses (b) and
(c) of Article 39 is saved from challenge for violating fundamental
rights guaranteed by Articles 14, 19 and 31, and such a law containing
the declaration as contemplated above is also immune from judicial
review by the courts. Laws regarding land reform can be brought
within the purview of Article 31C.
Land reforms have recently taken another shape as a result of
the excellent work done by Acharya Vinobha Bhave (a disciple of
Mahatma Gandhi) along with his own disciples. Legislation has
been passed by several states to facilitate the voluntary surrender of
surplus land held by a person and to donate the same to the village
community for its distribution to the landless. Since these measures
are primarily voluntary in nature, it would be out of place to refer
to the same in the present paper.

73 (1970) 3 S.C.R. 530 at 596. 74 Set out in n. 23, suipra.

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326 International and Comparative Law Quarterly [VOL. 22

EPILOGUE AND CONCLUSIONS

It is clear that the trend of land law and land reform in Indi
initially commenced with the abolition of zamindari and th
manent settlement, subsequently extended in the first place to s
of tenure to the tenant and thereafter to the fixation of limits
rent payable by him. This virtually culminated in the fixa
ceilings on land-holding by a family. Lands above the ceilin
acquired and distributed amongst the landless and other
sections of the community. At every stage of the proposed
tion regarding land reform, constitutional difficulties came in t
of its implementation and had to be surmounted by the constitu
amendments, namely, the First, Fourth, Seventeenth and Twent
Amendments referred to above.
The foregoing account, though necessarily concise, depicts con-
siderable legislative activity in the field of land law and land reform,
irrespective of other regulatory legislative measures taken in that
field. To some extent this represents what may perhaps be said to
be a universal trend in countries where private ownership of land
and private enterprise in agriculture are permitted.
Two broad trends emerge from the preceding discussion. In the
last century an eminent jurist summed up his narrative of legal
developments over the years by observing that "... we may say
that the movement of the progressive societies has hitherto been a
movement from status to contract." 75 A reversal of this trend is
now clearly discernible. The period of an agricultural lease, the
circumstances under which it may be determined, the rent payable
and several incidents of tenancy of agricultural land are no longer
determined by the volition of the parties or by contract. The
individual is not even free to determine for himself the amount of
agricultural land which he can acquire by purchase or lease. A law
relating to ceilings on holdings, usually fixed with reference to a
family as distinct from an individual, is an essential feature of land
reform legislation. Every one of these points, being initially matters
falling within the domain of contract, has now passed out of that
realm into one regulated or rather fixed by law and has thus become
a part of the realm of status.76
The other and perhaps even more significant development is the
steady diminution or erosion of the importance of the concept of the

75 Maine, Ancient Law, 10th ed. (1885), p. 170.

76 Status is a condition of membership of a group of which powers and duties are
exclusively determined by law and not by agreement between the parties con-
cerned. It has been held that the legal position of a Government servant is
more one of status than of contract. See Roshan Lal v. Union of India (1968)
1 S.C.R. 185 at 195.

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APRIL 1973] Land Law in India 327

"right to property," particularly in land with one significant exce

tion. The Constitution of India gives no significance to views lik
those of Proudhon that "property is theft," 7 nor does it like t
U.S. Constitution equate property with life and liberty.78 While t
"right to property" is given a place among the fundamental righ
it comes a long way after liberty in the hierarchy of human rights.79
It would be noticed that it was with some hesitation and reserva-
tion that the concept of " right to property" found a place in Part
III of the Constitution dealing with fundamental rights 80 and there-
after it was found necessary on more than one occasion to modify it
by constitutional amendments, as it was felt that the provisions of
the said part came in the way of implementing the directive
principles of State policy contained in Part IV, which have been
declared to be fundamental in the governance of the country, the
principles of which the State is required to apply in making laws.81
One type of property, however, has been expressly safeguarded
by the second proviso to Article 31A (1) of the Constitution. This
provides that when a State acquires any estate and where any land
comprised therein is held by a person under his personal cultivation
and is within the ceiling limit applicable to him under any law for
the time being in force, the law for the acquisition of such land
shall not be effective unless it provides for payment of compensation
at a rate not less than the market value thereof.82 To this limited
extent only, the concept of " just compensation" found in the Fifth
Amendment of the U.S. Constitution finds a place in India. Thus it
appears that basically the Constitution of India, while not denying a
place to the concept of the " right to property" in land, has given
it a secondary place, emphasising at the same time that the " right to
property" is only a means to an end and is subservient to the social
good which it is designed to serve.
One of India's Constitution makers, a distinguished lawyer,83
drew attention to the fact that this was the basis upon which the
"right to property" was recognised in ancient India. According
to him:

77 This was with reference to the exploitation of the labour of others in the form
of rent.
78 The Fifth Amendment to the U.S. Constitution provides that a person shall not
"be deprived of life, liberty or property, without due process of law." Similarly,
the Fourteenth Amendment provides that a State shall not "deprive any
person of life, liberty or property, without due process of law."
79 Called in the Constitution of India " fundamental rights."
80 Some jurists even doubted the wisdom of including "right to property" as a
fundamental right in Part III of the Constitution.
81 Art. 37.
82 This proviso is not affected by the Constitution (Twenty-fifth) Amendment Act
1971.
83 Sir Alladi Krishnaswami Ayyar.

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328 International and Comparative Law Quarterly [VOL. 22

Our ancients never regarded the institution of property as an end in itself.

Property exists for Dharma. Dharma and the duty which the individual
owes to the society form the whole basis of our social framework. Dharma
is the law of social well-being and varies from Yuga to Yuga.... The sole
end of property is Yagna and to serve a social purpose, an idea which
forms the essential note of Mahatma Gandhi's life and teachings.84

It is this balance between the rights of an individual and the

rights of the society that the Constitution of India has tried to
preserve with regard to one of the most important forms of property,
namely, property in land. While guaranteeing full indemnification
and payment of the market value to the actual tiller of the soil
for the acquisition of land within the ceiling limits, it ensures that
property is subject to acquisition on payment of compensation and
regulation for the better employment and equitable distribution of the
material resources of the community with a view to preventing con-
centration of wealth in the hands of a few-unhampered by considera-
tions of adequacy of compensation for acquisition and justiciability of
such compensation.

84 Constituent Assembly Debates, Vol. IX (1949), p. 1274.

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