JUDGMENT - DHABE H.W., J.: - This is a group of writ petitions in which the petitioners, who are non-tribals, challenge the validity of section 5-A of the Maharashtra Restoration of Lands to Schedule Tribes Act, 1974 (for short, “the Act”) on the ground that it is violative of the second proviso to Article 31-A(1) of the Constitution of India (for short, “the Constitution.”) 2. In fact the whole act including the Amending Act, by which section 5-A was introduced, was challenged in several petitions in this Court, including these writ petitions on the ground that it infringed the fundamental rights of the petitioners under Article 14 and the then existing Article 19(1)(f) and Article 31 which were deleted only by the Constitution (Forty-fourth Amendment) Act, 1978. The validity of the Constitution (Fortieth Amendment) Act, 1976, by which the original Act was introduced, was also challenged on the ground that it destroys or damages the basic structure of the Constitution. All these challenges were considered and repelled by me in my previous judgment dated 29/30-3-1984 in Writ Petitions Nos. 1590 of 1977, 1099 of 1980 and 1444 of 1980 in which I held that the impugned Act (original Act) is protected by Article 31-A as well as Article 31-B of the Constitution. The challenges to the validity of section 5-A of the Act were not then considered by me because in those writ petitions the questions about the vesting of the land in the State did not arise since under the impugned orders in those writ petitions the land was transferred from the non-tribal to the tribal who accepted the transfer. When one of these five writ petitions, viz, the Writ Petition No. 541 of 1978, was placed for admission a Rule was issued and the notice was directed to be issued to the Advocate General on 4-4-1984. Thereafter, Rule was issued in all the remaining four writ petitions. When these cases were listed for final hearing, the learned Counsel for the State, Shri A.A. Desai, Advocate, appearing for the Advocate General in Writ Petition No. 541 of 1978, accepted the notice for the Advocate General in all the other connected petitions. 3. Thereafter, Rule was issued in all the remaining four writ petitions. When these cases were listed for final hearing, the learned Counsel for the State, Shri A.A. Desai, Advocate, appearing for the Advocate General in Writ Petition No. 541 of 1978, accepted the notice for the Advocate General in all the other connected petitions. 3. It is not necessary to state in detail the facts in these connected writ petitions because for the purpose of the sole contention canvassed before me in these petitions suffice it to say that in all these petitions the tribal transferor was unwilling to cultivate the suit lands personally and to pay the purchase price as would be determined under section 3(4) of the Act, and therefore, the learned authorities under the Act directed under sections 5-A(1) of the Act that the suit lands be taken possession of from the non-tribals in these petitions and that they be vested in the State Government, free from all encumbrances. The sole contention raised before me is whether section 5-A(1) of the Act infringes the second proviso to Article 31-A(1) of the Constitution. 4. It is worthwhile to notice at this stage that section 5-A was introduced in the Act, i.e. Act No. XIV of 1975, by the Maharashtra Land Revenue Code, 1966 and the Maharashtra Restoration of Lands to Scheduled Tribes (Second Amendment) Act, 1976 (for short, “the Amending Act No. XXX of 1977”) which came into force with effect from 16-8-1977 as per notification of the State Government issued under section 1(2) of the said Act, after having received the assent of the President on 24-6-1977. However, section 5-A is made retrospective in operation from the date the Act i.e. the original Act No. XIV of 1975 came into force. It is not in dispute that the Amending Act No. XXX of 1977 is not up till now included in the Ninth Schedule of the Constitution. Had it been included in the Ninth Schedule, it would have been immune from the challenge that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by part III of the Constitution because of the protective umbrella of Article 31-B. It would have been then immune from the challenge under the second proviso to Article 31-A(1) of the Constitution which confers a fundamental right upon the persons covered thereunder. Since such an immunity cannot be granted to the Amending Act No. XXX of 1977 in the absence of its inclusion in the Ninth Schedule to the Constitution the constitutional validity of section 5-A introduced by the said Amending Act is open to challenge under the second proviso to Article 31-A(1) of the Constitution. 5. As already stated, Article 31-A(1) prior to its amendment by the Constitution (Forty-fourth Amendment) Act, 1978, protected the laws relating to agrarian reforms covered thereunder from the challenge of the fundamental rights under Articles 14, 19 or 31 of the Constitution. In Clause (a) of Article 31-A(1) the law which is protected is a law relating to the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights. The expression “estate” and “rights in estate” are defined in Article 31-A(2)(a) and (b) of the Constitution. The first proviso to Article 31-A(1) requires that any law of the State Legislature to fall under the protective umbrella of Article 31-A(1) should be assented to by the President. The second provision to Article 31-A(1) further provides that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at the rate which shall not be less than the market value thereof. 6. Thus the conditions for the applicability of the second proviso to Article 31-A(1) are that, - (a) the law is for the acquisition by the State of any estate; (b) the land comprised in the said estate is held by the person concerned under his personal cultivation; and that (c) the said land or any portion of such land to be acquired is within the ceiling limit applicable to him under any law for the time being in force. If all the above three conditions are satisfied, it is not open to the State to acquire any such land or any portion thereof or any building or structure standing thereon unless such law provides for payment of compensation at a rate which shall not be less than the market value thereof. It is thus clear that there is an injunction against the State in the second proviso to Article 31-A(1) because of which it is not open to the State to acquire any agricultural land which is cultivated personally and which is within the ceiling limit applicable to the same unless the law of acquisition by the State of any such estate or agricultural land provides for payment of compensation at a rate which is not less than the market value thereof. 7. Although the language of the second proviso shows that it is essentially an injunction against the State, the effect of the second proviso is that it confers a fundamental right upon the person who is cultivating the land personally and whose land which is within the ceiling limit is sought to be acquired by the State. This is the view which the Supreme Court has taken in the case of (Dattatraya Govind Mahajan and others etc. v. The State of Maharashtra another)1, A.I.R. 1977 S.C. 915. 8. It may be seen that the second proviso to Article 31-A(1) was introduced in the Constitution by the Constitution (Seventeenth Amendment) Act, 1964 prior to which any law relating to acquisition by the State of the estate comprising land whether below or above the ceiling limit was immune from the challenge of Article 31(2) because of the protective umbrella of Article 31-A(1) with the result that it was not obligatory upon the State to pay any compensation for the acquisition of the same. It was, however, thought necessary that the agricultural land which is cultivated personally and which is within the ceiling limit should be protected and the person whose such land is acquired by the State should be paid the compensation at a rate not less than the market value thereof. It was, however, thought necessary that the agricultural land which is cultivated personally and which is within the ceiling limit should be protected and the person whose such land is acquired by the State should be paid the compensation at a rate not less than the market value thereof. The second proviso was, therefore, introduced in Article 31-A(1) under which the immunity of the State from payment of compensation for acquisition of any estate covered under Article 31-A(1) was abridged and an obligation was cast upon the State thereunder to provide in the law of acquisition of an estate for the payment of compensation at a rate not less than the market value for acquisition of land thereunder which is under personal cultivation and which is within the ceiling limit prescribed by any law in regard thereto. 9. The object underlying the second proviso to Article 31-A(1) is quite obvious because of the ceiling laws in the States. The Agricultural lands above the ceiling limit are declared surplus and are acquired by and vest in the State under the ceiling laws. The persons having the land above the ceiling limit lose the same for a meagre compensation provided under the ceiling laws. The second proviso, therefore, provides that at least in the case of acquisition of lands of any persons below the ceiling limit such agriculturists must be ensured the compensation not less than the market rate. Even otherwise it is but natural that if a person is to be deprived by acquisition of is small holding within the ceiling limit or portion thereof resulting in adversely affecting his source of livelihood he should be paid adequate compensation for deprivation of such property. See (Ajit Singh v. State of Punjab)2, A.I.R. 1967 S.C. 856 para 10. 10. As held by the Supreme Court in D.G. Mahajan's case (cited supra) vide para 8 of the report, the second proviso of Article 31-A(1) is also couched in negative language like Clauses (1) and (2) of Article 31. See (Ajit Singh v. State of Punjab)2, A.I.R. 1967 S.C. 856 para 10. 10. As held by the Supreme Court in D.G. Mahajan's case (cited supra) vide para 8 of the report, the second proviso of Article 31-A(1) is also couched in negative language like Clauses (1) and (2) of Article 31. It imposes a fetter upon the exercise of the legislative power of the State by providing that the State shall not be competent to make a law for acquisition of an estate covered by the second proviso to Article 31-A(1) unless the said law provides for payment of compensation at a rate not less than the market value and that limitation is the measure of the fundamental right conferred on the owner of the land, coming within the purview of the second proviso to Article 31-A(1). By making the legislative power of the State subject to payment of compensation at a rate not less than the market value the second proviso to Article 31-A(1) guarantees protection to the owner against acquisition of that portion of his land which is within the ceiling limit except on payment of compensation at a rate not less than the market value of such land, and, to that extent, it confers a right to property a person holding land under his personal cultivation within the ceiling limit by providing that such land which is within ceiling limits cannot be acquired by the State unless the law for acquisition of such land provides for payment of compensation at a rate not less than the market value. It may be seen that the above right conferred under the second proviso to Article 31-A(1) is better and more valuable right as compared to Article 31(2) which did not guarantee payment of market price for the acquisition of property by the State for a public purpose. 11. It may be seen that the above right conferred under the second proviso to Article 31-A(1) is better and more valuable right as compared to Article 31(2) which did not guarantee payment of market price for the acquisition of property by the State for a public purpose. 11. Turning to the provisions of section 5-A of the Act, sub-section (1) thereof provides that where any land (not being land acquired in exchange) which is liable to be restored to a tribal-transferor under sub-section (1) of section 3 cannot be so restored either on account of the failure of the tribal-transferor to give an undertaking referred to in sub-section (3) of section 3 or for any reason whatsoever or where any land referred to in section 4 cannot be restored to the Tribal by reason of such tribal expressing, during the inquiry held by the Collector, his unwillingness to refund the purchase price or proportionate part thereof to the non-tribal transferee, as required by the said section 4, or for any other reason, then, the Collector, may subject to Rules, if any, made in that behalf, by order in writing direct that the land shall, with effect from the date of the order, be deemed to have been acquired and vest in the State Government free from all encumbrances. It is thus clear from the above provision of section 5-A(1) that the land which the tribal-transferor is not ready to cultivate personally or of which he is not ready to refund purchase price as determined by the Collector is deemed to have been acquired by the State and the aid land vests in the State Government free from all encumbrances, from the date of the order of the Collector. 12. The question, therefore, to be considered is whether the land of the non-tribal which is deemed to have been acquired by the State Government and which vests in the State free from all encumbrances on failure of the tribal transferor to get the same in view of his unwillingness to cultivate the same personally and to pay its purchase price amounts to acquisition of his estate by the State within the meaning of the second proviso to Article 31-A(1) of the Constitution. In considering this question a brief reference to the scheme of sections 3 and 4 read with the definition of the word” transfer” given in section 2(1)(i) of the Act would be useful. It is clear from the definition of the word “transfer” given in section 2(1)(i) of the Act that it contemplates the transfers which are valid, the only restriction being that the transfers contemplated therein of the land belonging to the tribal in favour of non-tribal are during the period from 1-4-1957 to 6-7-1974. That the transfer contemplated is a valid transfer is clear from the exclusion clause according to which a transfer of land falling under the provisions of sub-section (3) of section 36 of the Code is excluded from the definition of the word “transfer” under the Act. A perusal of the proviso to sub-section (3) of section 36 would show that the said proviso is in respect of the transfer of land from tribal to a non-tribal effected in contravention of sub-section (2) of section 36 of the Code or any other law for the time being in force at any time before the commencement of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974 by which the said proviso was introduced in section 36 of the Code. 12-A. The transfer contemplated by section 2(1)(i) is a valid transfer is also clear from the relief Clause (ii) in sub-section (1) of section 3 in which the transfer of the holding of the tribal to the non-tribal is not declared illegal or invalid although the Collector is empowered thereunder to direct that the land of the tribal transferor transferred during the period from 1-4-1957 to 6-7-1974 to the non-tribal transferee be taken possession of from the non-tribal transferee and be restored to the tribal transferor, subject of course to the conditions that the tribal transferor is ready and willing to cultivate the said land personally and it also ready to pay its purchase price as determined by the Collector. 12-B. Similarly, perusal of section 4 of the Act would show that the non-tribal had a valid tenancy of the field belonging to the tribal and that under the provisions of the Tenancy Laws he became its statutory owner on the tillers day. 12-B. Similarly, perusal of section 4 of the Act would show that the non-tribal had a valid tenancy of the field belonging to the tribal and that under the provisions of the Tenancy Laws he became its statutory owner on the tillers day. Here also as in section 3 the title of the non-tribal is legal and valid although under the provisions of section 4 like section 3 by reason of the said statutory provisions the land is required to be restored to the tribal transferor. The above scheme of the Act that it deals with valid transfers is clearly supported by its objects and reasons and its preamble. The relevant portion of its objects and reasons being - “It was noticed that in a number of cases lands previously held by persons belong to Scheduled Tribes have been transferred to non-Tribal as a result of purchases made or deemed to have been made under the Tenancy Laws or as a result of transfers (including exchanges) validity effected after 1st April, 1957 under the provisions of the Maharashtra Land Revenue Code, 1966 or other laws in force in the State.” 13. It is thus clear that the land which vests in the State Government under section 5-A(1) of the Act on failure of the tribal transferor to get the same under sections 3 and 4 of the Act is the land which had legally and validly vested in the non-tribal. The scheme of the above provisions including section 5-A(1) of the Act leaves no manner of doubt that the non-tribal transferee in which the land had vested validly is divested of the same by the State by its acquisition as per the provisions of sections 5-A(1) of the Act. Such an acquisition by the State amounts to the acquisition of an “estate” as defined in Article 31-A(2)(a) of the Constitution and is, therefore, clearly within the mischief of the second proviso to Article 31-A(1) of the Constitution if the other requirements of the said provision are satisfied. 14. It has been held in the case of Ajit Singh v. State of Punjab, A.I.R. 1967 S.C. 856 paras 9 10 that the concept of acquisition in the second proviso to Article 31-A(1) is the same as in sub-clause (a) of Article 31-A(1). 14. It has been held in the case of Ajit Singh v. State of Punjab, A.I.R. 1967 S.C. 856 paras 9 10 that the concept of acquisition in the second proviso to Article 31-A(1) is the same as in sub-clause (a) of Article 31-A(1). It is further held in the said case that the concept of acquisition in sub-clause (a) of Article 31-A(1) is not governed by the provisions of Clause (2-A) of Article 31 of the Constitution as under the present sub-clause the title of ownership need not always formally be transferred to the State. According to the said judgment, to claim the protection of Article 31-A(1), it would suffice if the substantial interest in the property has been transferred to the State, directly or indirectly. However, so far as section 5-A(1) is concerned, the test of transfer of ownership of the estate is itself satisfied. The non-tribal transferee on an order being passed by the Collector under section 5-A(1) loses his valid title in the land and the said title vests in the State upon an order being passed by the collector under section 5-A(1) of the Act, and but for the provisions of section 5-A(1), on the failure of the tribal transferor to accept the land on the conditions prescribed in section 3 and 4 the land would have continued to vest validly in the non-tribal transferee. Section 5-A(1) thus clearly enacts a law relating to acquisition by the State of the estate or land of a non-tribal within the meaning of sub-clause (a) of Article 31-A(1) and its second proviso. 15. As regards the acquisition by the State it is urged that the acquisition is for the purpose of transferring the land to other tribals as provided in sub-section 3 of section 5-A of the Act and, therefore, is not hit by the second proviso to Article 31-A(1) of the Constitution. It is clear that the second proviso to Article 31-A(1) is not concerned with the purpose of acquisition but with the fact of acquisition by the State of any estate as contemplated therein. It is clear that the second proviso to Article 31-A(1) is not concerned with the purpose of acquisition but with the fact of acquisition by the State of any estate as contemplated therein. Therefore, although the purpose may be a benevolent purpose, and the land may be acquired as a welfare measure relating to agrarian reform, still it being a land under personal cultivation within the ceiling limit, the second proviso casts as obligation upon the State to provide for the compensation at a rate not less than its market value before its acquisition. 16. Proceeding now to sub-section (2) of section 5-A(1) it is clear that the compensation which is offered by the State for acquisition of such land of the non-tribal transferee under sub-section (1) of section 5-A is equal to an amount which is 48 times the assessment of the land plus the value of the improvement, if any, made by the non-tribal transferee therein. If the said offer by the State of the compensation payable under section 5-A(2) of the Act does not represent the market value within the meaning of the second proviso to Article 31-A(1), the question would be whether the acquisition by the State as per section 5-A(1) is hit by the second proviso to Article 31-A(1). 17. It is faintly urged by the learned Counsel for the State that the compensation offered at the rate equal to 48 times the assessment represents the market value for the land. The said submission is merely stated to be rejected. The market value cannot be uniform for all types or qualities of lands which are deemed to be acquired by the State and which vest in the State free from all encumbrances under section 51(1) of the Act. It is further our common experience that even for the same land the market price increases after a period of time. There cannot, therefore, be a uniform standard for determination of the market value. 18. It may be seem that the concept of market value is well known. The market value of the land has to be taken to be the amount which the land if sold in the open market by willing seller might be expected to realise from a willing purchaser having due regard to its existing condition with all its existing advantages, and its potential possibilities when laid out in its most advantageous manner. The market value of the land has to be taken to be the amount which the land if sold in the open market by willing seller might be expected to realise from a willing purchaser having due regard to its existing condition with all its existing advantages, and its potential possibilities when laid out in its most advantageous manner. See (Reghubans Narain v. State of U.P.)3, A.I.R. 1967 S.C. 465 para 5, (Prithvi Raj v. State of M.P.)4, A.I.R. 1977 S.C. 1560 para 7. In (Olson v. U.S.)5, 1974(292) W.S. 246, it is held that the value in the open market means such amount as the land might be expected to realise if offered under conditions enabling every person desirous of purchasing to come in and make an offer and if proper steps are taken to advertise the property and let all likely purchasers know that the land is in the market for sale. It is thus clear that the market price depends upon several factors and cannot be uniform as provided under section 5-A(2) of the Act. 19. It is implicit in the second proviso to Article 31-A(1) that the market price contemplated therein is the price at the time when the acquisition is made by the State. Any law of acquisition within its mischief must, therefore, provide for compensation with reference to that date. In these cases the acquisition of the land is being made many years after the assessment of the land revenue upon it. It cannot be, therefore, gainsaid that the amount equal to 48 times the assessment of land plus the costs of improvements, if any, made by the non-tribal in the land in question cannot represent on the date of acquisition its market value since the land revenue had been assessed many years back and since then it is common experience that the market value of the land has increased by leaps and bounds. As regard the costs of improvement, if any, made by the no-tribal, they are the actual expenses incurred towards improvements and cannot be included in the market value of the land as such. As regard the costs of improvement, if any, made by the no-tribal, they are the actual expenses incurred towards improvements and cannot be included in the market value of the land as such. It is thus clear that the price offered under section 5-A(2) of the Act does not satisfy the requirement of the second proviso to Article 31-A(1) which prescribes a condition precedent that the holding of a person under his personal cultivation which the ceiling limit cannot be acquired unless it is provided in the laws of its acquisition that he would be paid compensation at a rate not less than its market price. 20. It is well settled in the cases arising under Article 31(2) of the Constitution that compensation which has to be offered must be fixed with reference to the date of acquisition of the property. In (State of West Bengal v. Mrs. Bella Banerjee)6, A.I.R. 1954 S.C. 170 para 8, the amount of compensation for acquisition of land fixed with reference to the market value of the land on an anterior fixed date under the West Bengal Land Development and Planning Act, 1948 was held to be value not on the date of acquisition. It was further held that fixing the anterior date for ascertainment of value particularly when the land is acquired many years after the said date is arbitrary. It was also observed referring to the observations of the Calcutta High Court that it was common knowledge that since the end of the was land particularly around Calcutta had increased enormously in the value and might till further increase very considerably in value when the pace of industrialisation increased. It is thus clear that for ascertainment of the market value on the date of acquisition there cannot be a fixed measure of compensation with reference to an anterior date. 21. The case of (Dy. Commissioner and Collector, Kamrup and others v. Durganand Sharma)7, A.I.R. 1968 S.C. 394, is a case which is much closer to the facts in the instant case. It was a case where the question of market value was relevant because it was in relation to Article 31(2) as it stood prior to the Constitution (Fourth Amendment) Act, 1955. Commissioner and Collector, Kamrup and others v. Durganand Sharma)7, A.I.R. 1968 S.C. 394, is a case which is much closer to the facts in the instant case. It was a case where the question of market value was relevant because it was in relation to Article 31(2) as it stood prior to the Constitution (Fourth Amendment) Act, 1955. The validity of Assam Acquisition of land for Flood Control and Prevention of Erosion Act was challenged under Article 31(2) of the Constitution on the ground that for acquisition of land no adequate compensation as contemplated by the expression “just equivalent” was provided thereunder. Section 6(1) of the said Act provided payment of compensation at the rate of 40 times the annual land revenue in case of periodical patta land and 15 times the annual land revenue in case of the annual patta land. The Supreme Court observed in par 17 of the judgment (cited supra) that the State of Assam made no attempt to show that a multiple of land revenue payable for the land is just equivalent of or has any relation to the market value of the land on the date of the acquisition. It further observed that it was well known that since the assessment of land revenue in Assam many years ago was the market value of lands had increased by leaps and bounds. The Supreme Court held that although the later part of section 6(1) of the Act (ibid) makes a pretence of saying that in determining the compensation the Collector shall take into account the value of the land as at the date of the acquisition and other factors, the same was meaningless considering that under the first part of section 6(1) it was provided that the compensation should not exceed the fixed multiple of the annual land revenue. The observations in the above case that the State has failed to prove how the fixed multiple of land revenue assessed some years back represent the market value on the date of the acquisition and that it is common knowledge that the market value of the land has increased by leaps and bounds since the assessment of land revenue equally and aptly apply in the instant case also. 22. 22. The above two decisions of the Supreme Court thus clearly support the view that by providing compensation at the rate equal to 48 times the assessment of land revenue plus the cost of improvements under section 5(2) of the Act the State is not offering on the date of acquisition compensation at the rate of the market value of the land which at least the State must provide in a law of acquisition of an estate comprising land which is under personal cultivation and which is within ceiling limit as contemplated by the second proviso to Article 31-A(1) of the Constitution . 23. It is thus clear from the provisions of sub-section (2) of section 5-A that it does not provide for payment of compensation at least at the market rate in cases of lands, which are personally cultivated by the non-tribal transferee and which are within the ceiling limit as contemplated by the second proviso to Article 31-A(1) of the Constitution. If that is so the question would be whether the acquisition of such land which is within ceiling limit and which is under personal cultivation of the non-tribal transferee can be still valid under sub-section (1) of section 5-A. The submission on behalf of the State is that sub-section (1) of section 5-A will not be had and it is only sub-section (2) of section 5-A which may be bad for non-compliance with the requirement of the second proviso to Article 31-A(1) of the Constitution. 24. However, the language of the second proviso to Article 31-A(1) which is compulsive is against such construction. The second proviso to Article 31-A(1) enacts a condition precedent insofar as it requires that the State must provide in the law of acquisition the payment of compensation at the rate not less than the market value before it acquires the land protected thereunder. Thus, unless there is a provision for payment of compensation at a rate not less than the market rate to the land covered by the second proviso to Article 31-A(1) the State as no power to acquire such land. It may be seen at this stage that if under the Act the compensation at a rate not less than the market is not provided for as contemplated by the second proviso to Article 31-A(1) the Court has no power to fix and to direct the State to pay the same. It may be seen at this stage that if under the Act the compensation at a rate not less than the market is not provided for as contemplated by the second proviso to Article 31-A(1) the Court has no power to fix and to direct the State to pay the same. It may be pertinently seen that the proviso to Article 31-A(1), contemplates fixation of compensation for acquisition of the land in certain cases at a rate higher than the market rate. It is, therefore, necessary for the State as its legislative policy to provide for a compensation in the law of acquisition which as contemplated by the second proviso to Article 31-A(1) cannot be less than the market value of the land and unless such compensation is provided for in the law of acquisition by the State it is not open to the State to acquire the land contemplated by the second proviso to Article 31-A(1). The above submission on behalf of the State that by not providing the compensation at the rate not less than the market value the provisions of section 5-A(2) would be bad but the acquisition of the land under section 5-A(1) should be held to be good cannot, therefore, be accepted. 25. As a result of the above discussion it has to be held that section 5-A of the Act cannot be enforced against the persons who hold land under their personal cultivation within the ceiling limit prescribed in the State since their fundamental right guaranteed under the second proviso to Article 31-A(1) is contravened by the State in not providing under section 5-A(2) of the Act a payment of compensation to them at a rate not less than the market value. 26. However, the question whether the non-tribal transferees in the instant petitions are cultivating the land personally and whether the lands which are acquired are within the ceiling limit applicable to them are questions of fact, which have to be determined by the authorities below. If the above two ingredients of the second proviso to Article 31-A(1), viz. the lands sought to be acquired being under personal cultivation and being within the ceiling limit, are found in favour of the petitioners, the provisions of section 5-A(1) cannot be enforced against them. 27. If the above two ingredients of the second proviso to Article 31-A(1), viz. the lands sought to be acquired being under personal cultivation and being within the ceiling limit, are found in favour of the petitioners, the provisions of section 5-A(1) cannot be enforced against them. 27. It is relevant to notice at this stage that the original ceiling limit fixed in the State of Maharashtra in 1961 was drastically reduced by the Amending Act No. 21 of 1975. It may also be noticed that the ceiling limit was drastically reduced not only in the State of Maharashtra but in other States also as it was done pursuant to a policy decision taken in the conference of the Chief Ministers of all the States in 1971. As such the ceiling limit was already lowered when the proceedings under the Act for restoration of the lands of the non-tribal to the tribal commenced under the Act. It is, therefore, possible that many of the non-tribal agriculturists like the petitioners were holding land below the ceiling limit when the orders were passed under section 5-A(1) vesting their lands in the State. I may also state that in many of these cases, including these writ petitions, the non-tribal agriculturists alleged that they would be rendered landless if their lands are taken possession of from them which would show that they are poor agriculturists holding land below the ceiling limit. Some of thee agriculturists belong to the weaker sections of the community as they belong to the Scheduled Castes. In thee circumstances, it is necessary to make a proper enquiry as stated above before the provisions of section 5-A(1) are enforced against the non-tribal agriculturists in these petitions. 28. In the result, the writ petitions are allowed. The impugned order are set aside. The proceedings are remanded to the trial Court for an enquiry into the questions whether the petitioners are cultivating the lands personally and whether their lands sought to be acquired by the State under section 5-A(1) are within the ceiling limit fixed under the ceiling law in the State. If the trial Court comes to a conclusion in favour of the petitioners upon the above questions the trial Court is restrained from enforcing the provisions of section 5-A(1) against them. Otherwise, it is open to the trial Court to pass appropriate orders under section 5-A(1) of the Act. If the trial Court comes to a conclusion in favour of the petitioners upon the above questions the trial Court is restrained from enforcing the provisions of section 5-A(1) against them. Otherwise, it is open to the trial Court to pass appropriate orders under section 5-A(1) of the Act. Rule made absolute in the above terms. However, there would be no orders as to costs. .......... Petitions allowed.