PETITIONER: DEPUTY COMMISSIONER AND COLLECTOR, KAMRUP& ORS. Vs. RESPONDENT: DURGA NATH SARMA DATE OF JUDGMENT: 15/09/1967 BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. WANCHOO, K.N. (CJ) RAMASWAMI, V. MITTER, G.K. HEGDE, K.S. CITATION: 1968 AIR 394 1968 SCR (1) 561 CITATOR INFO : RF 1969 SC 634 (23) RF 1970 SC1157 (19) RF 1972 SC2205 (17,18,26) RF 1972 SC2301 (61) RF 1975 SC1389 (21,23) RF 1980 SC1789 (36) ACT: The Assam Acquisition of Land for Flood Control and Preven- tion of Erosion Act (6 of 1955) and the Assam Acquisition of Land for Flood Control and Prevention of Erosion (Validity) Act (21 of 1960)-If violative of Arts. 14 and 31(2) of the Constitution. Constitution of India, 1950, Art. 31(5)(b)(ii)-Scope of. HEADNOTE: The Assam Acquisition of Land for Flood Control and Prevention of Erosion Act, 1955, was passed before the Constitution was amended by the Constitution (Fourth Amendment) Act. As the Act did not apply to the lands which were taken possession of before it came into force, the Assam Acquisition of Land for Flood Control and Prevention of Erosion (Validation) Act, 1959, Act XXI of 1960 was pass- ed, validating the acquisition of lands of which such possession had been taken. Under s. 2 of the 1960 Act any land taken over for the construction of embankments before the 1955 Act came into force unless the acquisition was validly made under any other law for the time being in force shall be deemed to have been validity acquired under the 1955 Act and is deemed to have vested in the State Government from the date the land was actually taken possession of; and compensation was payable in accordance with the principles in s. 6 of the 1955 Act. Under s. 6(1) of the 1955 Act the owner of the land shall get compensation for land including standing crops and trees, if any, but excluding buildings or structures, a sum not. exceeding 40 times the annual land revenue in case of periodic patta land and 15 times the annual land revenue in case of annual patta land. Under s. 6(2) the owner shall get compensation for the building or structure, if any, a sum equivalent to the sale proceeds of the materials plus fifteen per cent thereof. In 1954. the Assam Government took possession of the lands of the respondent for the construction of an embankment and the respondent was asked to submit his claim for compensation under the 1955 and 1960 Acts after the 1960 Act was passed. He then filed a writ petition challenging the validity of both the Acts and prayed for a direction prohibiting the State Government from taking action under those Acts as the compensation payable was illusory and in- adequate. The High Court held that the 1955 Act was violative of Art. 31(2), as it stood before the Fourth Amendment Act, that it was not protected by Art. 31A, and that, the 1960 Act was not independent of the 1955 Act and fell with it. In appeal by the State Government to this Court the appellant submitted that the two Acts were not violative of Arts. 14 and 31(2) and were in any event protected by Arts. 31A and 31 (5) (b) (ii). HELD: (1) The constitutional validity of the 1955 Act must be judged by Art. 31(2) as it stood before the Fourth Amendment Act.Since the assessment of land. revenue in Assam many years ago. the market value of the lands has increased by leaps and bounds. Under s, 6(1) of the Act, the Collector, in determining the compensation, L/J(N)6SCI-10 562 should take into account the value of the land as at the date of the acquisition and other factors, but this is meaningless because under the first part of s. 6(1) the compensation cannot exceed a fixed multiple of the annual land revenue. The State made no attempt to show that a multiple of land revenue payable for the land -is a just equivalent of or has any relation to the market value of the land ,on the date of the acquisition. The sale proceeds under s. 6(2) can not be regarded as a just equivalent of the value of the building and it stood at the time of the acquisition. The Act, therefore, does not ensure payment of just equivalent of the land appropriated and is violative of Art. 31(2) as it stood before the Fourth Amendment. [576H; 577F-H-, 578A-C] State of West Bengal v. Bela Banerjee, [1954] S.C.R. 558 and State of Madras v. D. Namasivaya Mudaliar, [1964] 6 S.C.R. 936, followed. (2) The Act is a purely expropriatory measure. It provides for acquisition of lands both urban and agricultural for executing works in connection with flood control or prevention of erosion. A piece of land acquired under the Act need not be an estate or - part of an estate. The Act is not a law concerning agrarian reform and hence is not protected by Art. 31A of the Constitution. [568G-H] Kochuni v. State of Madras, [1960] 3 S.C.R. 887; Ranjit Singh v. State of Punjab, [1965] 1 S.C.R. 82 and P. V. Mudaliar v. Special Deputy Collector, Madras, [1965] 1 S.C.R. 641 followed. (3) The Act is a law for the acquisition of property and not a law for preventing danger to life or property, and so, it is not protected by Art. 31 (5) (b) (ii). Article 31 (5) (b) (ii); provides that nothing in Art. 31(2) would affect the provisions of any law which the State might make after the commencement of the Constitution for the promotion of public health or the prevention of danger to life or pro- perty. A law for promotion of public health or for prevention of danger to life or property sometimes has to provide for destruction and impairment of the value of private property and the taking of temporary possession of the property by the State. Any substantial abridgment of the right of ownership of property including its destruction or injuriously affecting it or taking away its possession and enjoyment from the owner, amounted to a taking of property within the purview of Art. 31(2), before it was amended by the Fourth Amendment Act. But for Art. 31(5)(b)(ii) a law authorising such a taking of property would have been invalid unless it provided for compensation. The clause saved such laws from the operation of cl. (2) and these laws were not invalid because they authorised such a taking without payment of compensation. A law authorising the abatement of a public menace by destroying or taking temporary possession of private properties, if the peril cannot be abated in some other way, can be regarded as a law for promotion of public health or prevention of danger to life or property within the purview of cl. 5(b)(ii). But it is not possible to say that a law for permanent acquisition of property is such a law. The object of the acquisition may be the opening of a public park for the improvement of public health or the erection of an embankment to prevent danger to life or property from flood. As the acquired property belongs to the State, the State is free to deal with it as it chooses after the acquisition. It may close the public park and use the property for other purposes, or the river may recede or change its course so that it may no longer be necessary to keep the embankment. The State may then sell the property and appropriate the sale proceeds to its own use. Acquistions of property for the opening of a public park or for the erection of dams and embankments were always made under the 563 Land Acquisition Act and it could not have been intended that such acquisition could be made under laws coming within the Purview of el. (5)(b)(ii) without payment of compensation. Cl. 5(b)(11) did not protect laws for acquisition of property from the operation of Art. 31(2) as it stood before the Constitution (Fourth Amendment) Act. [574C-H; 575A-D] State of West Bengal v. Subodh Gopal Bose, [1954] S.C.R. 587, and Dwarkadas Shriniwas of Bombay v. Sholapur Spinning and Weaving Co. Ltd. [1954] S.C.R. 674, referred to. (4) The effect of the Constitution (Fourth Amendment) Act is that a deprivation of property, short of the transfer of the ownership or the right to possession of any property to the State, is not within the purview of Art. 31(2). A law, made after the Fourth Amendment Act providing for destruction of property or impairment of its value, is not invalid on the ground that it does not provide for payment of compensation, because, it is no longer within the purview of Art. 31(2), and, it is not necessary to invoke cl. (5) (b) (ii) to save it. It cannot therefore be contended that laws for permanent acquisition of property for the promotion of public health or prevention of danger to life or property, should be held to be saved by Art. 31 (5) (b) (ii) and that otherwise the clause would be otiose. Even now the clause will protect laws providing for requisitioning or temporary occupation of property strictly necessary for promotion of public health or prevention of danger to life or property. But as the Fourth Amendment did not amend cl. (5)(b)(ii) and did not change its original meaning, the clause will not save laws for the Permanent acquisition of property, from the operation of Art. 31(2). [575G-H; 576A-C] (5) There is unjust discrimination between owners of land similarly situated by the mere accident of some land being required the purposes mentioned in the 1955 Act and some land being required or other purposes, and therefore, the Act is violative of Art. 14. In the State of Assam, some land may be taken under the 1955 Act for the purpose of works and other measure in connection with flood control and prevention of erosion on payment of nominal compensation while, an adjoining land may be taken for other public purposes under the Land Acquisition Act on payment of adequate compensation. Article 14 permits reasonable classification and differential treatment based on substantial differences having reasonable relation to the object sought to be achieved. It is not possible to hold that the differential treatment of the land acquired under the Land Acquisition Act, 1894, and those acquired under the Assam Act of 1955 has any reasonable relation to the object of the acquisition by the State. [578E-G; 579C-E] P. Vajravelu Mudaliar v. Dy. Collector, [1965] 1 S.C.R. 614, followed. [Whether the Act is ultra vires on the ground that the State may acquire lands at its option either under the 1955 Act or under the Land Acquisition Act, left open.] [579H] (6) The core of the 1960 Act is the deeming provision of s, 2, under which, certain lands are deemed to be acquired under the earlier Act. The 1960 Act is entirely dependent upon the continuing existence and validity of the earlier Act of 1955. As the earlier Act is unconstitutional and has no legal existence the deemed acquisition tinder the 1960 Act is equally invalid. As this deeming provision is invalid all the ancillary provisions fall to the ground along with it and the provisions of the 1960 Act are incapable of enforcement and are invalid. The State Legislature has no power to enact that an acquisition made under a constitutionally invalid Act is valid. [580D F-H] 564 JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1100 of 1966.
Appeal from the judgment and order dated November 26, 1962
of the Assam High Court in Civil Rule No. 489 of 1961.
S. V. Gupte, Solicitor-General and Naunit Lal, for the
appellants.
B. R. L. Iyengar, for the respondent.
The Judgment of the Court was delivered by
Bachawat, J. In 1954, the Assam Government took possession
of the lands of the respondent and several other persons
situated in the District of Kamrup for the construction of
the Pagdalia embankment. In 1.955, the Assam Acquisition of
Land for Flood Control and Prevention of Erosion Ordinance.
1955 (Assam Ordinance No. 2 of 1955) was passed enabling the
State Government to acquire lands for works or other
development measures in connection with flood control or
prevention of erosion. The Ordinance was replaced by the
Assam Acquisition of Land for Flood Control and Prevention
of Erosion Act, 1955 (Assam Act No. 6 of 1955) which was
passed on April 11, 1955 with the assent of the President.
In April 1956, the State Government passed an order in
writing acquiring the lands taken over in 1954 for the
construction of the Pagdalia embankment under s. 3 of
Ordinance No. 2 of 1955. It seems that the reference to the
Ordinance was a mistake and the acquisition was made under
Act No. 6 of 1955. On April 26, 1956, the respondent was
served with the notice of the acquisition. By an order
dated September 10, 1959, the Deputy Commissioner, Kamrup
acting on behalf of the State Government quashed the Order
dated April 19, 1956 and directed that fresh acquisition
proceedings under- the Land Acquisition Act, 1894 should be
started. Pursuant to this order, some of the lands required
for the Pagdalia embankment were acquired under the Land
Acquisition Act on payment of full compensation. A draft
notification for the acquisition of the respondent’s lands
under the Land Acquisition Act was sent by the Collector of
Kamrup to the Assam Government for approval, but this
proposal was eventually dropped. On May 27, 1960. the Assam
Acquisition of Land for Flood Control and Prevention of
Erosion (Validation) Act, 1959 (Assam Act No. 21 of 1960)
was passed with the assent of the President. In November
1960. the State Government passed an order for the
acquisition of the respondent’s lands under s. 3 of the
Assam Acquisition of Land for Flood Control and Prevention
of Erosion Act. It was common case before the High Court
that this acquisition was made under s. 3 of Act No. 21 of
1960. On November 6, 1960, the Collector of Kamrup served a
notice upon the respondent informing him of the acquisition
order and asking him to submit his` claim for compensation.
On September 30, 1961, the respondent
565
filed a writ petition in the Assam High Court asking for an
order declaring Act No. 6 of 1955 and Act No. 21 of 1960 to
be invalid and directing the State Government to forbear
from giving effect to the notices issued thereunder. The
High Court allowed the petition and issued a writ of
mandamus.directing the State Government not to give effect
to the notices issued under Act No. 21 of 1960. The present
appeal has been filed under a certificate granted by the
High Court.
It is convenient at this stage to refer to the provisions of
the impugned Acts. The preamble to Act No. 6 of 1955 shows
that it was passed to make provision for the speedy
acquisition of lands necessary for works or other
development measures connection with flood or prevention of
erosion. Section 3 gives power to the State Government to
acquire land for those purposes by an order in writing. It
is in these terms:
“3. Power to acquire land-If, in the opinion
of the, State Government or such officer as is
empowered in this behalf by the State
Government it is necessary or expedient to
acquire speedily any land for works or other
development measures in connection with flood
control or prevention of erosion, the State
Government or such officer, may by, an order
in writing, acquire any land stating the area
and boundaries of the land.”
Section 4 provides for the service and publication of the
order of acquisition.’ Under s. 5, on such service or
publication the land vests in the State Government and may
be taken possession of by the Collector. Section 46 as
amended by Act No. 17 of 1959 which provides for
compensation is in these terms:
“6. Compensation-The owner of the land which
has vested in the Government under section
5(1) shall get compensation at the following
rates,-
(1) for land including standing crops and
trees, if any but excluding,building or
structure, a sum not exceeding forty times the
annual land revenue in case of Periodic Patta
Land and fifteen times the annual land revenue
in case of Annual Patta land:-
Provided that in case of revenue free land and
land paying revenue at concessional rate the
compensation will be assessed on the basis of
the revenue of similar revenue paying land of
the neighbourhood.
In determining this sum, the Collector shall
take the following into consideration:-
(a) The value of the land, as at the date of
acquisition,
(b) the, adverse effect on the value of the
land due to. possible floods, on the land or
danger of erosion of such land,,
566
(c) The benefit the owner is likely to derive
in respect ,of his other lands in the area due
to the control measures,,
(d) The damage sustained by the person
interested by reason of the taking of any
standing crops or trees which may be on the
land at the time of the Collector taking
possession thereof
(2) For building or structure, if any, a sum
equivalent to the sale proceeds of the
materials of the same plus 15 per cent
thereof:-
Provided that if in lieu of this compensation
the owner chooses to take away the materials
the Collector shall allow him to do so within
such time as specified by him and the cost of
the shifting of the buildings or structures as
the case may be, as may be approved
by the
Collector in the manner prescribed shall be
borne by the Government, which cost however,
shall not exceed 20 per cent of the value of
the buildings or structures as the case may be
as determined by the Collector.”
Section 7 provides for payment of interim compensation.
Under s. 8, the Collector is required to make an award of
the compensation allowable for the land and its
apportionment among the persons interested in the land.
Under s. 9, on the application of any person aggrieved by
the award, the Collector is required to refer the matter to
the decision of an arbitrator appointed by the State
Government. Section 10 empowers the Collector to use such
force as may be necessary to evict any person from the land.
Section II imposes. penalties on persons obstructing the
taking of possession of the land by the Collector. Section
12 gives protection for action taken in good faith under the
Act. Section 13 bars the jurisdiction of the Courts to
question the legality of actions taken or orders made under
the Act. Section 14 empowers, the State Government to make
rules. Section 16 repeals Ordinance No. 2 of 1955.
Ordinance No. 2 of 1955 contained similar provisions, and it
is not necessary to repeat them.
The preamble to Act No. 21 of 1960 shows that
its object is to validate the acquisition of
lands taken over for flood, control and
prevention of erosion. Section 2 is in these
terms:
“2. (1) Notwithstanding anything contained in
the Assam Acquisition of Land for Flood
Control and Prevention of Erosion Act, 1955
(hereinafter referred to as the ‘said Act’),
any land taken over for the purposes of
construction of embankments or carrying out
works or other development measures in
connection with flood control or prevention of
erosion before this Act came into force,
except where acquisition was made validly
under any other law for the time being in
force, shall be deemed
567
to have been validly acquired under the
provisions of the ‘said Act’ and the land
shall absolutely vest and shall always be
deemed to have been vested in the State Gov-
ernment from the date the land was actually
taken possession of.
(2) The Collector shall, as soon as may be,
after the commencement of this Act, publish,
by notification in the official Gazette, the
description of land deemed to have been
acquired under sub-section (1).”
Section 3 provides for payment of compensation. It is in
these terms:
“3. The Collector shall, within a period of
six months from the date of commencement of
this Act, assess the value of land deemed to
have been acquired under section 2 in
accordance with the principles contained in
section 6 and make an award under Section 8 of
the said Act respectively. The owner of the
land shall further be entitled to an interest
at the rate of 6 per cent per annum on the
value of the award, for the period from the
date the land was actually taken possession of
to the date of the award.”
Section 4 gives protection for action taken in good faith in
connection with the land deemed to have been acquired under
section 2.Section 5 provides:
“Except as otherwise provided in this Act, the
provisions of the said Act shall apply,
mutatis mutandis in respect of the acquisition
of the land deemed to have been acquired under
Section 2 of this Act.”
Section 6 provides that if any question arises as to the
interpretation of the provisions of the Act or the
applicability of any of its provisions in respect of any
land the matter shall be referred to the Governor of Assam
whose decision shall be final.
The respondent challenged the validity of Act No. 6 of 1955
and Act No’ 21 of 1960 on the ground that they contravened
Arts. 14 and 31(2) of the Constitution. The High Court held
that (1) Act No. 6 of 1955 was violative of Art. 31(2) of
the Constitution as it stood before the Constitution (Fourth
Amendment) Act and was not protected by Art. 31A and (2) s.
3 of Act No. 21 of 1960 declaring that certain lands would
be deemed to be validly acquired under the earlier Act was
not a law providing for acquisition of land independently of
the earlier Act and as the earlier Act was invalid, the
later Act fell with it. The High Court did not express any
opinion on the question whether the two Acts were I
violative of Art. 14.
568
Before us, counsel ‘forthe appellants submitted that the
two Acts were not violative of Arts. 14 and 31(2) and
were, in, any event, protected’ by Arts,31A and
31(5)(b)(ii). The respondent was not represented by counsel,
but ‘we have had the advantage of the argument of Mr. lengar
who assisted as amicus curiae’.
The validity of both the Acts is in issue in this appeal.
On the question of the validity of Act No. 6 of 1955 the
following points arise for decision: (1) is the Act
protected by Art. 31A;(2) is it protected by Art.
31(5)(b)(ii); (3) does it infringe Art. 31(2); (4) is it
violative of Art. 14? With regard to the validity, of Act
No. 21 of 1960, the following points arise for decision: (1)
is it a law providing for acquisition of lands independently
of Act No. 6 of 1955, and if not, is it valid? (2) If it is
an independent piece of legislation, (a) is it protected by
Art. 31A; (b) is it protected by Art. 31(5)(b)(ii); (c) does
it contravene Art. 31(2). and (d)is it violative of Art. 14?
Counsel for the appellants submitted that Act No. 6 of 1955
is a law providing for the acquisition of estates and is
protected by Art. 31A(1)(a). We are unable to accept this
contention. It is now well settled that Art. 31A(1)(a)
envisages only laws concerning agrarian reform. In
Kochuni’s case(1), the Court by a majority decision held
that the Madras Marumakkathayam (Removal of Doubts) Act,
1955 which deprived a sthanee of his properties and vested-
them in the tarwad contravened Art. 19(1)(f) and was not
protected by Art. 31A and that Art. 31A saved laws for
agrarian reform only and did not enable the State to
divest a proprietor of his estate and vest it in another
without reference to any agrarian reform. In Ranjit Singh
v. State of Punjab(2), the Court held that the East Punjab
Holdings (Consolidation and Prevention of Fragmentation)
Act, 1948 as amended by Act No. 27 of 1960 was protected by
Art. 31A, as the general scheme of the Act was definitely
agrarian reform and under its provisions something ancillary
thereto in the interests of rural economy had to be un-
dertaken to give full effect to the reforms. In P. V.
Mudaliar v. Special Deputy Collector, Madras(3), the Court
held that the Land Acquisition (Madras Amendment) Act, 1961
providing for the acquisition of lands for housing scheme
was not a law with reference: to any agrarian reform and was
not protected by Art. 31A. In the light of these decisions,
we must bold that Act No. 6 of 1955 is not a law concerning
agrarian reform and -is not protected by Art. 31A. The Act
is a purely expropriatory measure. It provides for
acquisition of lands both urban and agricultural for
executing works in connection with flood control. or
prevention of erosion- A piece of. land acquired under the
Act need not be an estate or part of an estate. It has no
relation to agrarian reform, land tenures or the elimination
of intermediaries. We may
(1) [1960] 3 S.C.R. 887, 897-905.
(2) [1965] 1 S.C.R. 82.
(3) [1965] 1 S.C.R. 614.
569
add that there is nothing’ on’, the record to,’ show that
the respondent’s lands are estates or parts of estates.
Counsel for the, appellants next submitted that nothing in
Art. 31(2) can affect Act No, 6; of 1955 as it is a law for,
the prevention of danger to life or property within the
purview of Art. 31(5) (b)(ii) This, contention is somewhat
novel, and requires close examination.
Our attention has been drawn to certain opinions expressed
in our earlier decisions that Art. 31(2) occupies, the field
of eminent domain and Art. 31(5)(b)(ii) contains a saving
clause with regard to the police powers of the State. The
concepts of eminent domain and police powers are borrowed
from: American law. The constitutional guarantee of the due
process clause, in the United States Constitution requires
that no private property shall be taken for public use
without just compensation. In the exercise of its police
power, the State may pass regulations designed to ensure
public health, public morals, public safety as also public
convenience or general prosperity, see Chicago, Burlington &
Quincy Railway Company v. People of the State of
Illinois(1). In the exercise of its eminent domain power,
the State may take any property from the owner and may
appropriate it for public purposes The police and eminent
domain powers are essentially distinct.Under the police
power many restrictions may be imposed and the property
may even be destroyed without compensation being given,
whereas under the power of eminent domain, the property may
be appropriated to public use on payment of compensation
only. The distinction between the two powers is brought out
clearly in the following passage in American Jurisprudence,
2nd End, Vol. 16, Art. 301,. p. 592:
“The state, under the police power, cannot in
any manner actually take and appropriate
property for public use without compensation,
for such action is repugnant to the
constitutional guaranty that where private
property is appropriated for public use, the
owner shall receive reasonable compensation.
Thus, there is a vital difference, which is
recognised by the authorities, between an act
passed with exclusive reference to the police
power of the state, without any purpose to
take and apply property to public uses, and an
act which not only declares the existence of a
nuisance created by the condition of
particular property, but in addition, and as
the best means of accomplishing the end in
view, authorizes the same property to be
appropriated by the public.”
In Sweet v.Rechel(2) the validity of an Act to enable the
City of Boston to abate a nuisance existing therein and for
the preservation of the public health in the City by
improving the drainage of
(1) 200 U.S. 561 :50 L.Ed. 596, 609.
(2) 159 U.S. 380:40 L.Ed. 188.
570
the territory was sustained on the ground that the Act
provided for payment of just compensation. The Court
pointed out that private property the condition of which was
such as to endanger the public health could not be legally
taken by the Commonwealth and appropriated to public use
without reasonable compensation to the owner. In Delaware
L. & W. R. Co. v. Morristown(1) an Ordinance establishing a
public hack stand on private property without payment of
compensation was struck down on the ground that assuming
that the creation of the public hack stand would be a proper
exercise of the police power it did not follow that the due
process clause would not safeguard to the owner just compen-
sation for the use of the property. In United States v.
Caltex (Philippines)(2), the Court held that no compensation
was payable by the United States for the destruction by its
retreating army of private property to prevent its falling
into enemy hands. But the Court recognised that
compensation would be payable for the army’s requisitioning
of private property for its subsequent use. The Court said
that in times of imminent peril-such as when fire threatened
a whole community-the sovereign could, with immunity,
destroy the property of a few that the property of many and
the lives of many more could be saved. Indeed, it would be
folly not to destroy some building so that an entire town
may be saved from the conflagration, as will appear from the
following historic incident referred to in Respublica v.
Sparhawk(3):
“We find, indeed, a memorable instance of
folly recorded- in the 3 vol. of Clarendon’s
History, where it is mentioned,, that the Lord
Mayor of London in 1666. when the city was on
fire, would not give directions for, or
consent to, the pulling down forty wooden
houses or to removing the furniture, etc.
belonging to the lawyers of the temple, then
on the circuit, for fear he should be
answerable for a trespass; and in consequence
of this conduct, half that great city was
burnt.”
If Art. 31(5)(b)(ii) is regarded as a saving clause with
regard to the police power of the State, it is clear that
under a law designed to promote public health or to prevent
danger to life or property the State may in cases of
imminent peril destroy or impair the value of private
property without any obligation to pay compensation, but it
cannot arrogate to itself the power to acquire and
appropriate to its own use private property without payment
of compensation.
We shall now examine our earlier decisions in The State of
West Bengal v. Subodh Gopal Bose and Other(1) and Dwarkadas
Shrinivas of Bombay v. The SholapurSpinning and Weaving
Co.
(1) 276 U.S. 182:72 L.Ed. 523, 527.
(2) 344 U.S. 149:97 L.Ed. 157.
(3) 1 Dall. 357, 363: 1 L.Ed. 174.
(4) [1954] S.C.R. 587.
571
Pd., and others(1), where reference was made to the concepts
of’ eminent domain and police power in relation to cls. (1)
and (2) of Art. 31 before the Constitution (Fourth
Amendment) Act and Art. 31(5)(b)(ii). The decision of
Patanjali Sastri C. J., Mahajan, Bose, Ghulam Hasan, JJ. in
those two cases (Das and Jagannadhadas, JJ. dissenting) was
that cls. (1) and (2) of Art. 31 were not mutually exclusive
in scope but should be read together and understood as
dealing with the same subject, namely, the protection of the
right to property by means of limitations on the State power
to take away private property, the deprivation contemplated’
by cl. (1) being no other than the acquisition or taking
possession of the property referred to in cl. (2). The
effect of the majority, decision was that a substantial
abridgment of the rights of ownership which withheld the
property from the possession and enjoyment of the owner or
seriously impaired its use or enjoyment by him or materially
reduced its value amounted to a taking of property within
the purview of Art. 31(2). On the subject of eminent.
domain and- police power in relation to cls. (1), (2) and
(5)(b)(ii) the learned Judges expressed different opinions.
Patanjali Sastri, C. J. at pp. 605, 606, 610, 612 and 614
said that (a) the power of’ eminent domain was the subject
of express grant in Entry No. 33: of List I and Entry No. 36
of List II and Art. 31 defined the limitation on the
exercise of this power, (b) cl. (5)(b)(ii) of Art. 31 showed
that but for that clause compensation would be payable even
for the exercise of the State’s power in an emergency to,
demolish an intervening building to prevent a conflagration
from spreading and it was because of that clause that such
destruction did not entail liability to pay compensation,
(c) the American doctrine of police power as a distinct and
specific legislative power was not recognised in our
Constitution, (d) the power of’ social control and
regulation was implicit in the entire legislative field, it
was not conferred by cl. (1) nor did cl. (5) define it
exhaustively in relation to property rights. Mahajan, J. at
pp. 695 to697 and 700 said that (a) cl. (2) defined the
powers of the legislature in the field of eminent domain and
(b) cl. (5)(b)(ii) was$ not inserted by way of abundant
caution but was a comprehensivesaving clause defining the
classes of deprivation of property without payment of
compensation, as for instance in cases of emergency in order
to prevent a fire from spreading. Bose, J. at p. 734
deprecated the use of doubtful words like police power and
eminent domain in construing our Constitution. Das, J at
pp. 638, 643, 645, 647-650 said, that (a) cl. (1) dealt with
police power and Art. 31(2) dealt with the power of eminent
domain, (b) cl. (5)(b)(ii) did not exhaustively define the
police power; it was inserted by way of abundant caution to
except from the purview of cl. (2) some instances of the
exercise of police power superficially resembling the
exercise of the power of eminent domain and
(1) [1954] S.C.R. 674.
572
(c) acquisition of land for any’ of the purposes mentioned
in cl.the (5)(b)(ii) ‘was ‘precisely the kind of acquisition
which was always made on payment of compensation under the
Land Acquisition. Act, 1894 and a construction of cl.
(5)(b)(ii) which took out of –Art. 31 (2) a I law made
‘really and essentially in exercise of the power of eminent
domain could not readily be accepted as cogent -or correct.
Jagannadhadas, J. at pp. 669, 670 and 672 said that (a) cl.
(1) was not a declaration of the American doctrine of police
power nor had it reference only to the power of eminent
domain,(b) with respect to matters enumerated in the
legislative lists the legislature could exercise every power
including the police power-if it was necessary to import
this concept-in so far as it was not provided in Arts. 19(2)
to 19(6), 31(5)(b)(ii) or other specific provisions, (c) an
acquisition under cl. (2) did not necessarily involve
transfer of title or possession and this was indicated by
cl. (5)(b)(ii) which more often than not would cover cases
of destruction of property.
From the ‘Several conflicting opinions expressed in those
two cases it is difficult to say that the Court or a
majority of Judges held that cl. (5)(b)(ii) saved the police
power of the State in the ,strict technical sense as
understood in American law. All we need say is that if cl.
(5)(b)(ii) is construed as saving the police power of the
State, such police power must be exercised subject to the
constitutional restriction as evolved by the American
judicial decisions that private property cannot be
appropriated, to public use without payment of compensation.
But we prefer to construe Art. 1 an cl. (5)(b)(ii)
uninfluenced by the American concepts of eminent domain and
police power.
We shall endeavour to ascertain the meaning of Art. 31(5)(b)
(ii) in the context of Art. 31 as it stood before the
Constitution (Fourth Amendment) Act and thereafter in the
context of Art. 31 as it stands after the Fourth Amendment.
Article 31 as it stood before the Constitution (Fourth
Amendment) Act was in these ,terms:
“31(1). No person shall be deprived of his
property save by authority of law.
(2) No property, movable or immovable,
including any interest in, or in any company
owning, any commercial of industrial
undertaking shall be taken possession of or
acquired for public purposes under any law
authorising the taking of such possession or
such acquisition, unless the law provides for
compensation for the property taken possession
of or acquired and either fixes the amount of
the compensation, or specifies the principles
on which. and the manner in which, the
compensation is to be determined and given.
573
(3)No such law as is referred to in clause (2)
made by the legislature of a State shall have
effect unless such law, having been reserved
for the consideration of the President, has
received his assent.
(4) If any Bill pending at the commencement of
this Constitution in the Legislature of a
State has, after it has, been passed by such
Legislature, been reserved for the.
consideration of the President and has
received his assent, then, notwithstanding
anything in this Constitution, the law so
assented to shall not be called in question in
any court on the ground that it contravenes
the provisions of clause (2).
(5) Nothing in clause (2) shall affect-
(a) the provisions of any existing law other
than a law to which the provisions of clause
(6) apply, or
(b) the provisions of any law which the State
may hereafter make-
(i) for the purpose of imposing or levying any
tax or penalty, or
(ii) for the promotion of public health or
the prevention of danger to life or property,
or
(iii) in pursuance of any agreement entered
into between the Government of the Dominion of
India or the Government of India and the
Government of any other country, or otherwise,
with respect to property declared by law to be
evacuee property.
(6) Any law of the State enacted not more than
eighteen months before the commencement of
this Constitution may within three months from
such commencement be submitted to the
President for his certification; and
thereupon, if the President by public
notification so certifies, it shall not be
called in question in any court on the ground
that it contravenes the provisions of clause
(2) of this article or has contravened the
provisions of sub-section (2) of section 209
of the Government of India Act, 1935.”
Clauses (1) and (2) of Art. 31 were limitations on the
executive and the legislative powers of the State to deprive
any person of his property. Clause (2) imposed the
limitation that the law authorising the taking of property
for public purposes must provide for compensation for the
property. Clause (3) imposed the additional limitation that
if such a law was made by the legislature of a State. it
must have received the assent of the President. Clauses (4)
and (6) saved certain laws from the operation of cl. (2) and
those laws could not be called in question in any Court on
574
the ground that it contravened cl. (2). Clause (5)(a)
provided -that nothing in cl. (2) would affect any existing
law other than a law to which the provisions of cl. (6)
applied. Under cls. (5)(b)(i) .and (5)(b)(iii) nothing in
cl. (2) would affect the provisions of laws .made for the
purpose of imposing or levying any tax or penalty :and
certain laws with respect to evacuee property. We are not
concerned in this appeal with the interpretation of cls.
(4), (5)(a), (5)(b)(i), (5)(b)(iii) and 6. We express no
opinion on their interpretation. Clause (5)(b)(ii) provided
that nothing in cl. (2) would .affect the provisions of any
law which the State might make after the commencement of the
Constitution “for the promotion of public health or the
prevention of danger to life or property.” It is to be
noticed that cl. (5)(b)(ii) saved laws for the promotion of
public health or the prevention of danger -to life or
property. It did not save laws for the acquisition of
property. We are satisfied that cl. (5)(b)(ii) was not
intended to except laws for the acquisition of property,
from the purview of cl. (2). Any substantial abridgment of
the rights of ownership including destruction and injurious
affection of the property and taking away its possession and
enjoyment from the owner amounted to a taking of property
within the purview of cl. (2) as interpreted in Subodh
Gopal’s case(1) and Dwarkadas Shrinivas’s case(1). A law
for promotion of public health or for prevention of danger
to life or property sometimes has to provide for destruction
and impairment of value of private property and the taking
of temporary possession of the property by the State. It
may be necessary to destroy contaminated food or to burn
plague-infested buildings for the promotion of public
health, to pull down a building to prevent a fire from
spreading and consuming other buildings in the locality, to
demolish a building in a ruinous condition endangering the
safety of its occupants and other persons in its vicinity.
The destruction and the temporary taking of property for
such purposes, though necessary for promoting public health
or preventing danger to life or property, amounted to taking
of property within cl. (2). But for cl. (5)(b)(ii), a law
authorising such a taking of property would have been in-
valid unless it provided for compensation. Clause
(5)(b)(ii) saved such laws from the operation of cl. (2) and
those laws were not invalid because they authorised such a
taking without payment’ of compensation. A law authorising
the abatement of a public menace by destroying or taking
temporary possession of private properties if the peril
cannot be abated in some other way can be regarded as a law
for promotion of public health or prevention of danger to
life or property within the purview of cl. (5)(b)(ii). But
it is not possible to say that a law for permanent
acquisition of property is such a law. The object of the
acquisition may be the ,opening of a public park for the
improvement of public health or
(1) [1954] S.C.R. 587. (2) [1954] S.C.R. 674.
575
the erection of an embankment to prevent danger to life or
property from flood,. Whatever the object of the
acquisition may be, the acquired property belongs to the
State. The State is free to deal with the property as it
chooses after the acquisition. It may close the public park
and use the property for other purposes. The river may
recede or change its course so that it may no longer be
necessary to keep the embankment and the State may then sell
the property and appropriate the sale proceeds to its own
use. Clause (5)(b)(ii) was intended to be an exception to
cl. (2) and must be ,strictly construed. Acquisitions of
property for the opening of a public park or for the
erection of dams and embankments were always made under the
Land Acquisition Act, and it could not have been intended
that such acquisitions could be made under laws coming
within the purview of cl. (5)(b)(ii) without payment (of
compensation. We have come to the conclusion that cl.
(5)(b) (ii) did not protect laws for acquisition of
properties from the (operation of cl. (2) as it stood before
the Constitution (Fourth Amendment) Act.
The Constitution (Fourth Amendment) Act amended cl. (2) and
inserted a new clause (2A). The amended cl. (2) and the new
cl. (2A) are in these terms:
“31(2). 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 either fixes the
amount of the compensation or speci
fies the
principles on which, and the manner in which,
the compensation is to be determined and
given; and no such law shall be called in
question in any, court on the ground that the
compensation provided by that law is not
adequate.
(2A). 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.”
The effect of the Constitution (Fourth Amendment) Act is
that a deprivation of property short of transfer of the
ownership or the right to possession of any property to the
State is not within the purview of cl. (2). A law made
after the Constitution (Fourth Amendment) Act providing for
destruction of property or impairment of its value is not
invalid because it does not provide for payment of
compensation. But we have seen that in the context of Art.
31 as it stood before the Constitution (Fourth Amendment)
Act, cl. (5)(b)(ii) was not intended to save laws for the
acquisition of property from the operation of cl. (2). The
Fourth Amendment did not amend cl. (5)(b)(ii) nor change its
original meaning. Cases of destruction of property or
impairment
576
of its value are no longer within the purview of cl. (2) and
it is.., not necessary to invoke cl. (5)(b)(ii) to save laws
made after the Fourth Amendment providing for such forms of
taking of property. But even now, cl. (5)(b)(ii) is not
wholly otiose. Clause (5)(b)(ii) will protect laws
providing for requisitioning or temporary occupation of
property strictly necessary for promotion of public health
or prevention of danger to life or property. The law may
authorise the State to requisition the property temporarily
for abating the public menace without payment of
compensation if the menace cannot be abated in some other
recognised way. We hold that a law for acquisition of
property is not protected by cl. (5)(b)(ii) of Art. 31 as it
now stands after the Constitution (Fourth Amendment) Act.
In our opinion, Act No. 6 of 1955 is a law for acquisition
of property and not a law for preventing danger to life or
property and is not protected by cl. (5)(b)(ii) from the
operation of cl. (2).
The Assam Embankment and Drainage Act, 1941 (Assam Act No. 7
of 1941) which is in force in the State of Assam shows that
flood control, drainage and construction of embankments are
possible without acquisition of private property. The Act
recognises both private and public embankments. Section 4
of the Act authorises the Embankment Officer to remove
obstructions endangering the stability of embankments and
drains, to remove and alter embankments and drains
endangering safety to any town or village or likely to cause
loss of property and to construct embankments and drains the
absence of which endangers the safety of any town or
village. In case of grave and imminent danger to life or
property he may forthwith commence the execution of any such
work. Sections 7 to 9 contemplate the preparation and
execution of schemes for improvement of drains, embankments
and flood protection. The scheme may provide for the charge
of an annual rate on all lands benefited by the scheme.
Section 10 provides for payment of compensation for any loss
arising inter alia from the carrying out of works under ss.
4 and 9. This Act is in operation in Assam for the last 25
years and necessary measures for flood control and
construction of embankments have been carried out under this
Act. This Act shows that it is possible for the State to
take all necessary measures for flood control and
construction of embankments without arrogating to itself the
power of acquiring private property without payment of
adequate compensation.
It follows that Act No. 6 of 1955 is not protected from the
operation of Art. 31(2) either by Art. 31A or by Art.
31(5)(b)(ii). The next question is whether Act No. 6 of
1955 contravenes Art. 31(2). The constitutionality of the
Act must be judged by Art. 31(2) as it stood before the
Constitution (Fourth Amendment) Act. In The State of West
Bengal v. Bela Banerjee and Others(1)
(1) [1954] S.C.R. 558.
577
the Court held that while the legislature had a
discretionary power of laying down the principles which
should govern the determination of the amount to be given to
the owner for the property appropriated, such principles
must ensure that what is determined as payable was a just
equivalent of what the owner was deprived of and that
subject to this basic requirement of full indemnification
for the expropriated owner, the Constitution allowed free
play to the legislative ‘judgment as to what principles
should guide the determination of the amount payable. The
Court decided that West Bengal Land Development and Planning
Act, 1948 passed primarily for the settlement of immigrants
from East Bengal fixing the market value on December 31,
1946 as the ceiling on compensation without reference to the
value of the land at the time of the acquisition which might
be made many years later offended Art. 31(2) as it did not
ensure payment of the just equivalent of the land. The Act
was not saved from the operation of Art. 31(2) by Art. 31(5)
as it was not certified by the President as provided for by
Art. 31(6). In West Ramnad Electric Distribution Co. Ltd.,
v. State of Madras,(1), the Court rejected the contention
that the Madras Electricity Supply Undertakings (Acquisi-
tion) Act No. 19 of 1954 was violative of Art. 31(2), as the
appellant did not furnish any material to show that the
compensation payable under the Act was not a just equivalent
of the property acquired. In State of Madras v. D.
Namasivaya Mudaliar(2), the Court held that the Madras
Lignite (Acquisition of Land) Act No. 21 of 1953 providing
for assessment of compensation on the basis of the market
value of the land prevailing on August 28, 1947 and not on
the date on which notification was issued under s. 4(1) of
the Land Acquisition Act and providing that in awarding
compensation the value of non-agricultural improvements com-
menced since April 28, 1967 would not be taken into
consideration did not ensure payment of just equivalent of
the land appropriated and was in contravention of Art.
31(2). Now, Act No. 6 of 1955 by s. 6(1) provides that the
owner of the land shall get compensation for land including
standing crops and trees, if any, but excluding buildings or
structure a sum not exceeding 40 times the annual land
revenue in case of periodic patta land and 15 times the
annual land revenue in case of annual patta land. The res-
pondent in his petition definitely charged that the
compensation payable under the Act was illusory and
inadequate. The State of Assam made no attempt to show that
a multiple of land revenue payable for the land is a just
equivalent of or has any relation to the market value of the
land on the date of the acquisition. It is well known that
since the assessment of land revenue in Assam many years ago
the market value of lands has increased by leaps ,and
bounds. The latter part of s. 6(1) makes a pretence of
saying that in determining the compensation the Collector
shall take
(1) [1963] 2 S.C.R. 747. (2) [1964] 6 S.C.R. 936.
L/J(N)6SCI-11
578
into account the value of the land as at the date of the
acquisition and other factors, but this is meaningless
considering that under the first part of s. 6(1) the
compensation cannot exceed a fixed multiple of the annual
land revenue. Section 6(2) provides that the owner shall
get compensation for the building or structure, if any, a
sum equivalent to the sale proceeds of the materials of the
same plus 15 per cent thereof. The sale proceeds of the
materials cannot be regarded as a just equivalent of the
value of the building as it stood at the time of the
acquisition. In our opinion. Act No. 6 of 1955 does not
ensure payment of a just equivalent of the land appropriated
and is violative of Art. 31(2) as it stood before the Fourth
Amendment.
The next question is whether Act No. 6 of 1955 offends Art.
14 of the Constitution. The Land Acquisition Act, 1894 is
in force in the State of Assam and under it private property
may be acquired for any public purpose on payment of market
value of the land at the date of the publication of the
notification under s. 4(1). Section 17 of the Act makes
special provision for the speedy acquisition of waste or
arable land in cases of emergency. While that Act is in
force in the State of Assam, the State Legislature passed
Act No. 6 of 1955 providing for speedy acquisition ,of land
for the public purpose of carrying out works or other deve-
lopment measures in connection with flood control or
prevention of erosion on payment of compensation assessed on
the basis of a multiple of the annual land revenue. The
result is that in the State ,of Assam some land may be taken
under Assam Act No. 6 of 1955 for the purpose of works and
other measures in connection with flood control and
prevention of erosion on payment of nominal compensation
while an adjoining land may be taken for other public
purposes under the Land Acquisition Act on payment of
adequate compensation. The question is whether this
differential treatment of land acquired under the two Acts
is permissible under Art. 14. The constitutional guarantee
of Art. 14 requires that all persons shall be treated alike
in like circumstances and conditions. The Article permits
reasonable classification and differential treatment based
on substantial differences having reasonable relation to the
objects sought to be achieved. It is not possible to hold
that the differential treatment of the lands acquired under
the Land Acquisition Act, 1894 and those acquired under
‘Assam Act No. 6 of 1955 has any reasonable relation to the
object of acquisition by the State. In P. V. Mudaliar v.
Dy. Collector(1), the Court held that the Land Acquisition
(Madras Amendment) Act, 1961 providing for the acquisition
of lands for housing schemes and laying down principles for
fixing compensation different from those prescribed in the
Land Acquisition Act was violative of Art. 14.
Discrimination between persons whose lands were -acquired
under housing schemes and those whose lands were ;acquired
for other purposes could not be sustained, under Art. 14.
[1965] 1 S.C.R. 614.
579
Although it was contended that the amending Act was passed
to meet an urgent demand to clear up slums, the Act as
finally evolved was not confined to any such problem and
land could be acquired under the amending Act for housing
schemes and other objectives. The Court said at p. 634:
Out of adjacent lands of the same quality and
value, one may be acquired for a housing
scheme under the Amending Act and the other
for a hospital under the principal Act; out of
two adjacent plots belonging to the same
individual and of the same quality and value.
one may be acquired under the principal Act
and the other under the Amending Act. From
whatever aspect the matter is looked at. the
alleged differences have no I reasonable
relation to the object sought to be achieved.”
In our opinion, the classification of land required for
works and other measures in connection with flood control
and prevention of erosion and land required for other public
purposes has no reasonable relation to the object sought to
be achieved. viz., acquisition of the land by the State. In
either case, the owner loses his land and in his place, the
State becomes the owner. There is unjust discrimination
between owners of land similarly situated by the mere
accident of some land being required for purposes mentioned
in Assam Act No. 6 of 1955 and some land being required for
other purposes. We hold that Assam Act No. 6 of 1955 is
violative of Art. 14.
On behalf of the respondent it was contended that Act No. 6
of 1955 is violative of Art. 14 on the additional ground
that it is open to the State to acquire property in
connection with flood control or prevention of erosion
either under the Land Acquisition Act or under Assam Act No.
6 of 1955 at its sweet will. There is considerable force in
this contention. The record shows that even after the
passing of Act No. 6 of 1955 the State of Assam has acquired
other lands for erecting embankments in connection with
flood control and has paid full compensation to owners of
those lands under the Land Acquisition Act. However,
Counsel for the appellants con-tends that in view of Art.
254(2) of the Constitution Assam Act No. 6 of 1955
supersedes the Land Acquisition Act, 1894 in so far as the
later Act enables acquisition of property for the purposes
of works and other development measures in connection with
flood control or prevention of erosion. We have not ‘heard
full arguments on this new contention realised by counsel
for the appellants. We, therefore, do not propose to decide
it or to strike down Act No. 6 of 1955 on the ground that
the State may acquire lands at its option either under Assam
Act No. 6 of 1955 or under the Land Acquisition Act. For
the purposes of this case it is sufficient to say that Assam
Act No. 6 of 1955 is violative of Art. 14 on The ground
mentioned in the earlier paragraph.
580
it follows that Assam Act No. 6 of 1955 is violative of
Arts. 14 and 31(2) of the Constitution and must be struck
down. The next question is whether Assam Act No. 21 of 1960
is valid. This Act provides that any land taken over for
the purposes of construction of embankments or carrying out
works or other development measures in connection with flood
control or prevention of erosion before it came into force
shall be deemed to have been validly acquired under the
provisions of Assam Act No. 6 of 1955 unless the acquisition
was validly made under any other law for the time being in
force. By force of Assam Act No. 21 of 1960 the land so
taken over is deemed to be. acquired under Assam Act No. 6
of 1955. As Assam Act No. 6 of 1955 is invalid, the deemed
acquisition under Assam Act No. 21 of 1960 is equally
invalid. The State legislature has no power to enact that
an acquisition made under a constitutionally invalid Act is
valid.
Counsel submitted that Assam Act No. 21 of 1960 is a piece
of legislation providing for acquisition of land
independently of the earlier Act and the validity of this
Act must be judged by reference to Art. 31(2) as it stood
after the Constitution (Fourth Amendment) Act. We are
unable to accept this contention. In support of his
contention. counsel drew our attention to the provisions of
ss. 2, 3, 4 and 5. Under s. 2, the land deemed to be
acquired under the earlier Act vests and is deemed to have
vested in the State Government from the date the land was
actually taken possession of. Under s. 3, the Collector is
enjoined to assess the value of the land deemed to have been
acquired under s. 2 in accordance with the principles laid
down in s. 6 and to make an award under s. 8 of the earlier
Act and the owner is entitled to claim certain interest.
Section 4 protects action taken in good faith in connection
with the land deemed to have been acquired under s. 2. Under
s. 5, except as otherwise provided under the Act, the
provisions of the earlier Act shall apply mutatis mutandis
in respect of the acquisition of land deemed to have been
acquired under s. 2. It is to be seen that the core of Assam
Act No. 21 of 1960 is the deeming provision of s. 2 under
which certain lands are deemed to be acquired under the
earlier Act. As this deeming provision is invalid, all the
other ancillary provisions fall to the ground along with it.
The later Act is entirely dependent upon the continuing
existence and validity of the earlier Act. As the earlier
Act is unconstitutional and has no legal existence, the
provisions of Act No. 21 of 196O are incapable of
enforcement and are invalid. In view of this- conclusion,
the other questions with regard to the validity of Act No.
21 of 1960 do not arise. The Assam High Court rightly held
that the notices of acquisition issued under Assam Act No.
21 of 1960 are invalid.
In the result, the appeal. fails and is dismissed.
V.P.S. Appeal dismissed.
581