PETITIONER:
THE STATE OF BIHAR
Vs.
RESPONDENT:
MAHARAJADHIRAJA SIR KAMESHWAR SINGHOF DARBHANGA AND OTHERS(C
DATE OF JUDGMENT:
27/05/1952
BENCH:
GUPTA, A.C.
BENCH:
GUPTA, A.C.
BEG, M. HAMEEDULLAH
CHANDRACHUD, Y.V.
CITATION:
1975 AIR 1083
ACT:
Bihar Land Reforms Act (XXX of 1950)---Law for abolition
of zamindaries--Validity--Necessity to provide for compensa-
tion and of public purpose--Jurisdiction of Court to enquire
into validity-Delegation of legislative powers--Fraud on the
Constitution--Constitution of India, 1950--Constitution
(First Amendment) Act, 1951 Arts. 31, 31-A, 31-B, 362.
363--Sch. VII, List II, entries 18, 36 and List III, entry
42 --Construction--Spirit of the Constitution-Right of
eminent domain--"Law", "Legislature", "Public purpose",
meanings of--Covenant of merger--Compulsory acquisition of
private property of Ruler--Acquisition of arrears of rent
paying 50%--Deduction for cost of works--Legality.
115
890
HEADNOTE:
Held per Curiam (MAHAJAN, MUKHERJEA and CHANDRASEKHARA
AIYAR JJ.)--The Bihar Land Reforms Act, XXX of 1950, is not
unconstitutional or void except with regard to the provi-
sions in s. 4 (b) and s. 23 (f) thereof. The provisions of
S. 4 (b) and s, 23 (f) are unconstitutional. Per PATAN-
JALI SASTRI C.J. and DAS J.--The whole of the Bihar Land
Reforms Act of 1950, including the provisions contained in
s. 4 (b) and s. 23(f) is constitutional and valid.
Per PATANJALI SASTRI C. 3., MAHAJAN, MUKHERJEA, DAS and
CHANDRASEKHARA AIYAR JJ.--(i) The Bihar Land Reforms Act,
XXX of 1950, is not a law in respect of a matter mentioned
in entry 18 of List II, viz., "lands and land tenures", but
a law in respect of "acquisition of property", a matter
covered by entry 36 of List II.
(ii) The obligation to pay compensation for property ac-
quired by the State is not an obligation imposed by entry 36
of List II read by itself or in conjunction with entry 42 of
list III or by the spirit of the Constitution. Consequently,
an objection to the validity of a statute in respect of
acquisition of property on the ground that it does not
provide for payment of compensation is an objection on the
ground that it contravenes the provisions of art. 31 (2) and
the jurisdiction of the Court to entertain such an objection
in respect of a statute mentioned in the Ninth Schedule to
the Constitution is barred by art. 31 (4), art. 81-A and
art. 31-B of the Constitution. Per DAS J.-Assuming that the
obligation to pay compensation is also implicit in entry 86
of List II, in itself or read with entry 42 of List III,
even then the validity of the Act cannot be questioned by
reason of arts. 81 (4), 31-A and 31-B.
(iii) Section 32(2) of the Act which empowers the State
Government to frame rules providing for "the proportion in
which compensation shall be payable in cash and in bonds and
the manner of payment of such compensation" does not involve
any delegation of legislative powers especially as the
legislature has itself provided in s. 32(2) that the compen-
sation shall be payable in cash or in bonds or partly in
cash and partly in bonds and fixed the number of instalments
in which it should be paid. The words "subject to" in entry
36 of List II only mean that whenever a law is made by a
State Legislature in exercise of its legislative power under
entry 36, that law will be subject to the provisions of a
law made by the Parliament under entry 42 of List III. The
words do not mean that when a State makes a law under entry
36 it must lay down the principles on which compensation
payable for property acquired is to be determined and the
form and manner in which it should be given.
(iv) Entries in the Legislative Lists are merely of an
enabling character. The power conferred thereunder on the
legislatures is not coupled with any duty on the legislature
to exercise
891
such power and the principle laid down in Julius v. Bishop
of Oxford [5A.C.214] has, therefore, no application to the
Lists.
Per PATANJALI SASTRI C.J., MUKHERJEA and DAS JJ.
(MAHAJAN and CHANDRASEKHARA. AIYAR JJ. dissenting).--The
existence of a public purpose as a pre-requisite to the
exercise of the power of compulsory acquisition is an essen-
tial and integral part of the provisions of art.31 (2) and
an infringement of such a provision cannot be put forward as
a ground for questioning the validity of an Act providing
for compulsory acquisition: DAS J.--Even assuming that the
necessity of a public purpose is implied in entry 36 of List
II and/or entry 42 of List III also, arts. 31 (4), 31-A and
31-B would still protect the Act from being questioned on
the ground that the acquisition was not for a public pur-
pose. In any case the impugned Act is supported by a public
purpose.
Per MAHAJAN and CHANDRASEKHARA AIYAR jj.--The scope of
art. 31 (4) is limited to the express provisions of art. 31
(2) and though the courts cannot examine the extent or
adequacy of the provisions of compensation contained in any
law dealing with the acquisition of property compulsorily,
yet the provisions of art. 31 (4) do not in any way debar
the court from considering whether the acquisition is for a
public purpose. Though the main object of the Act, viz, the
acquisition of estates, is for a public purpose, the acqui-
sition of arrears of rent due to the zamindars on payment of
50 per cent. of their value cannot be held to be for a
public purpose and sec. 4 clause (b) of the Act is therefore
unconstitutional and void. Per MUKHERJEA J.--Assuming that
art. 31 (4) relates to everything that is provided for in
art. 31 (2) either in express terms or even impliedly and
consequently the question of the existence of a public
purpose is not justiciable, as the real object of sec. 4,
clause (b) is to deprive the man of his money, which is not
a subject-matter for acquisition under the powers of eminent
domain, without giving anything in exchange, under the guise
of acting under entry 42 the legislature has in truth and
substance evaded and nullified its provisions altogether and
sec. 4 clause (b) is therefore unconstitutional and void.
PATANJALI SASTRI C.J.--Whatever may be the position as
regards the acquisition of money as such it is not correct
to say that a law made under entry 36 of List II cannot
authorise acquisition of choses in action like arrears of
rent due from the tenants which are covered by the term
"property" used in that entry and in art. 31. The view that
a payment in cash or in government bonds of half the amount
of such arrears leaves the zamindar without compensation
for the balance is equally fallacious. Section 4 clause (b)
is not therefore ultra vires or unconstitutional.
892
Per MAHAJAN, MUKHERJEA and CHANDRASEKHARA AIYAR JJ.
(PATANJALI SASTRI C.J, and DAS J. dissenting)--Section 23
(b) of the Act which provides for a deduction on a percent-
age basis out of the gross assets for "costs of works of
benefit to the raiyat", is ostensibly enacted under entry 42
of List III, but it is merely a colourable piece of legisla-
tion, a mere device to reduce the gross assets, which does
not really come under entry 42 and is unconstitutional.
PATANJALI SASTRI C J. and DAS J.-- The zamindars are under
an obligation to maintain and repair the minor irrigation
works in their villages which are beneficial to the raiyats
and the cost of such works is therefore a perfectly legiti-
mate deduction in computing the net assets of the estate and
sec. 23 (f) is not unconstitutional. Further, as payment of
compensation is not a justiciable issue in the case of the
impugned statute, having regard to arts. 31 (4), 31-A and
31-B, it is not open to the Court to enquire whether a
deduction which results in reducing the compensation is
unwarranted and therefore a fraud on the Constitution.
Per MAHAJAN J.--The phrase "public purpose" has to be
construed according to the spirit of the times in which the
particular legislation is enacted and so construed, acquisi-
tion of estates for the purpose of preventing the concentra-
tion of huge blocks of land in the hands of a few individu-
als and to do away with intermediaries is for a public
purpose.
DAS J.--No hard and fast definition can be laid down as
to what is a ,'public purpose" as the concept has been
rapidly changing in all countries, but it is clear that it
is the presence of the element of general interest of the
community in an object or an aim that transforms such object
or aim into a public purpose, and whatever furthers the
general interest of the community as opposed to the particu-
lar interest of the individual must be regarded as a public
purpose.
JUDGMENT:
APPEALS under article 132 (1) of the Constitution of
India from the judgment and decree dated 12th March, 1951,
of the High Court of Judicature at Patna (Shearer, Reuben
and Das JJ.) in Title Suits Nos. 1 to 3 and Mis. Judicial
Cases Nos. 230-234, 237-244, 2-16 to 254, 257, 261 to 264,
266, 262, 270 to 277, 287-290 and 297 of 1951. PETITION No.
612 of 1951, a petition under article 32 of the Constitution
for enforcement of fundamental rights, was also heard along
with these appeals.
The facts that gave rise to these appeals and petition
are stated in the judgment.
893
M.C. Setalvad (Attorney-General for India) and Mahabir
Prasad (Advocate-General of Bihar) with G.N. Joshi, Lal
Narain Singh and Alladi Kuppuswami for the State of Bihar.
P.R. Das (B. Sen, with him) for the respondents in Cases
Nos. 339, 319, 327,330 and 332 of 1951.
Sanjib K. Chowdhury. S.N. Mukherjee, S.K. Kapur for the
respondents in Cases Nos. 309, 328, and a36 of 1951.
Urukramdas Chakravarty for the respondents in Cases
Nos. 326,337 and 344 of 1951.
Raghosaran Lal for the respondents in Cases Nos. 310.311
and 329 of 1951.
S C. Mazumdar for the respondent in Case No. 313 of
1951.
S. Mustarid and Jagadih Chandra Sinha for the respond-
ents in Cases Nos. 307, 313, 320, 321, and 322
of 1951.
Ray Parasnath for the respondent in Case No. 331 of
1951.
S.K. Kapur for the petitioner in Petition No. 612 of
1951.
1952. May 2, 5. The Court delivered judgment as follows
:–
PATANJALI SASTRI C.J.–These appeals and petitions which
fall into three groups raise the issue of the constitutional
validity of three State enactments called The Bihar Land
Reforms Act, 1950 (Bihar Act XXX of 1950), The Chief Jus-
tice, in his judgment, dealt with the above Cases and Peti-
tion and also Petitions Nos. 166, 228, 237, 245, 246, 257,
268, 280, to 285, 287 to 289, 317, 318 and 487 of 1951
(relating to the Madhya Pradesh Abolition of Proprietary
Rights (Estates Mahals, Alienated Lands) Act, 1950) and
Cases Nos. 283 to 295 of 1951 (relating to the Uttar Pradesh
Zamindari Abolition and Land Reforms Act, 1950).
894
The Madhya Pradesh Abolition of Proprietary Rights
(Estates, Mahals, Alienated Lands) Act, 1950 (No. I of
1951), and
The Uttar Pradesh Zamindari Abolition and Land Reforms
Act, 1950 (U. P. Act No. 1 of 1951) (hereinafter referred to
as the Bihar Act, the Madhya Pradesh Act and the Uttar
Pradesh Act, respectively).
The common aim of these statutes, generally speaking, is
to abolish zamindaries and other proprietary estates and
tenures in the three States aforesaid, so as to eliminate
the intermediaries by means of compulsory acquisition of
their rights and interests, and to bring the raiyats and
other occupants of lands in those areas into direct relation
with the Government. The constitutionality of these Acts
having been challenged in the respective State High Courts
on various grounds, the Bihar Act was declared unconstitu-
tional and void on the ground that it contravened article 14
of the Constitution, the other grounds of attack being
rejected, while the other two Acts were adjudged constitu-
tional and valid. The appeals are directed against these
decisions. Petitions have also been filed in this Court
under article 32 by certain other zamindars seeking determi-
nation of the same issues. The common question which arises
for consideration in all these appeals and petitions is
whether the three State Legislatures, which respectively
passed the three impugned statutes, were constitutionally
competent to enact them, though some special points are also
involved in a few of these cases.
As has been stated, various grounds of attack were put
forward in the courts below, and, all of them having been
repeated in the memoranda of appeals and the petitions,
they would have required consideration but for the amendment
of the Constitution by the Constitution (First Amendment)
Act, 1951 (hereinafter referred to as the Amendment Act)
which was passed by the provisional Parliament during the
pendency of these proceedings. That Act by inserting the new
articles 31-A and
895
31-B purported to protect, generally, all laws providing for
the acquisition of estates or interests therein, and specif-
ically, certain statutes, including the three impugned Acts,
from attacks based on article 13 read with other relevant
articles of Part III of the Constitution. And the operation
of these articles was made retrospective by providing, in
section 4 of the Amendment Act, that article 3 I-A shall be
“deemed always to have been inserted” and. in article 31-
B, that none of the specified statutes “shall be deemed ever
to have become void”. The validity of the Amendment Act was
in turn challenged in proceedings instituted in this Court
under article 32 but was upheld in Sankari Prasad Singh Deo
v. Union of India and Stale of Bihar(1). The result is that
the impugned Acts can no longer be attacked on the ground of
alleged infringement of any of the rights conferred by the
provisions of Part III.
It will be noted, however, that articles 31-A and 31-B
afford only limited protection against one ground of chal-
lenge, namely that the law in question is “inconsistent
with, or takes away or abridges any of the rights conferred
by any provisions of this Part”. This is made further clear
by the opening’ words of article 3 I-A “notwithstanding
anything in the foregoing provisions of this Part”. The
Amendment Act thus provides no immunity from attacks based
on the lack of legislative competence under article 246,
read with the entries in List II or List III of the Seventh
Schedule to the Constitution to enact the three impugned
statutes, as the Amendment Act did not in any way affect the
Lists. Mr. P.R. Das, leading counsel for the zamindars,
accordingly based his main argument in these proceedings on
entry 36 of List Ii and entry 42 of List III which read as
follows:
“36. Acquisition or ‘requisitioning of property, except
for the purposes of the Union, subject to the provisions of
entry 42 of List III.
42. Principles on which compensation for property ac-
quired or requisitioned for the purposes of the Union
(1) [1952] S.C.R. 89.
896
or of a State or for any other public purpose is to be
determined, and the form and the manner in which such com-
pensation is to be given”.
The argument may be summarised thus. Entry 36 of List II
read with article 246 (3) was obviously intended to autho-
rise a State Legislature to exercise the right of eminent
domain, that is, the right of compulsory acquisition of
private property. The exercise of such power has been
recognised in the jurisprudence of all civilised countries
as conditioned by public necessity and payment of compensa-
tion. All legislation in this country authorising such
acquisition of property from Regulation I of 1824 of the
Bengal Code down to the Land Acquisition Act, 1894, proceed-
ed on that footing. The existence of a public purpose and
an obligation to pay compensation being thus the necessary
concomitants of compulsory acquisition of private property,
the term “acquisition” must be construed as importing, by
necessary implication, the two conditions aforesaid. It is
a recognised rule for the construction of statutes that,
unless the words of the statute clearly 80 demand, a statute
is not to be construed so as to take away the property of a
subject without compensation: Attorney-General v. De
Keyser’s Royal Hotel(2). The power to take compulsorily
raises by implication a right to payment: Central Control
Board v. Cannon Brewery(2). The words “subject to the provi-
sions of entry 42 of List III” in entry 86 reinforce the
argument, as these words must be taken to mean that the
power to make a law with respect to acquisition of property
should be exercised subject to the condition that such law
should also provide for the matters referred to in entry 42,
in other words, a two-fold restriction as to public purpose
and payment of compensation (both of which are referred to
in entry 42) is imposed on the’ exercise of the law-making
power under entry 36. In any case, the legislative power
conferred under entry 42 is a power coupled with a duty to
exercise it for the benefit of the owners whose properties
are compulsorily acquired
(1) [1920] A.C. 508, 542. (2) [1919] A.C. 744.
897
under a law made under entry 36. For all these reasons the
State Legislatures, it was claimed, had no power to make a
law for acquisition of property without fulfilling the two
conditions as to public purpose and payment of compensation.
On the basis of these arguments, counsel proceeded to
examine elaborately various provisions of the impugned Acts
with a view to show that the compensation which they purport
to provide has, by “various shifts and contrivances”, been
reduced to an illusory figure as compared with the market
value of the properties acquired. The principles laid down
for the computation of compensation operated in reality as
“principles of confiscation”, and the enactment of the
statutes was in truth a “fraud on the Constitution”, each of
them being a colourable legislative expedient for taking
private properties without payment of compensation in viola-
tion of the Constitution, while pretending to comply with
its requirements. Nor were these statutes enacted for any
public purpose; their only purpose and effect was to destroy
the class of zamindars and tenure-holders and make the
Government a “super-landlord”. While such an aim might
commend itself as a proper policy to be pursued by the
political party in power, it could not, in law, be regarded
as a public purpose.
Mr. Somayya, who appeared for some of the zamindars in
the Madhya Pradesh group of cases, while adopting the argu-
ments of Mr. Das, put forward an additional ground of objec-
tion. He argued that the impugned Acts -were not passed in
accordance with the procedure prescribed in article 31 (3)
which provides
“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 the President,
has received his assent”.
Learned counsel stressed the words “law” and “legisla-
ture” and submitted that, inasmuch as the legislature of a
State included the Governor (article
116
898
168) and a bill could become a law only after the Governor
assented to it under article 200, clause (3) of article 31
must be taken to require that a State law authorising com-
pulsory acquisition of property should receive the Gover-
nor’s as well as the President’s assent, the former to make
it a law and the latter to give it “effect”. As the rela-
tive bills were reserved in each case by the Governor con-
cerned after they were passed by the House or Houses of
Legislature, as the case may be, without giving his assent
under article 200. the statutes did not satisfy the require-
ments of article 31 (3) and so could not have “effect”. This
ground of attack, it was claimed, was not excluded by arti-
cle 31-A or article 31-B as it was not based on infringement
of fundamental rights.
Dr. Ambedkar, who appeared for some of the zemindars in
the Uttar Pradesh batch of cases, advanced a different line
of argument. He placed no reliance upon entry 36 of List II
or entry 42 of List III. He appeared to concede what Mr. Das
so strenuously contested, that those entries, concerned as
they were with the grant of power to the State Legislature
to legislate with respect to matters specified therein,
could not be taken, as a matter of construction, to import
an obligation to pay compensation. But he maintained that a
constitutional prohibition against compulsory acquisition of
property without public’ necessity and payment of compensa-
tion was deducible from what he called the “spirit of the
Constitution”, which, according to him, was a valid test for
judging the constitutionality of a statute The Constitu-
tion, being avowedly one for establishing liberty, justice
and equality and a government of a free people with only
limited powers, must be held to contain an implied prohibi-
tion against taking private property without just compensa-
tion and in the absence of a public purpose. He relied on
certain American decisions and text-books as supporting the
view that a constitutional prohibition can be derived by
implication from the spirit of the Constitution where no
express prohibition has been enacted in that behalf.
Articles 31-A and 31-B barred
899
only objections based on alleged infringements of the funda-
mental rights conferred by Part III, but if, from the other
provisions thereof, it could be inferred that there must be
a public purpose and payment of compensation before private
property could be compulsorily acquired by the State, there
was nothing in the two articles aforesaid to preclude objec-
tion on the ground that the impugned Acts do not satisfy
these requirements and are, therefore, unconstitutional.
In addition to the aforesaid grounds of attack, which
were common to all the three impugned statutes, the validity
of each of them or of some specific provisions thereof was
also challenged on some special grounds. It will be conven-
ient to deal with them after disposing of the main conten-
tions summarised above which are common to all the three
batches of cases.
These contentions are, in my judgment devoid of of
substance and force and I have no hesitation in rejecting
them. The fact of the matter is the zemindars lost the
battle in the last round when this Court upheld the consti-
tutionality of the Amendment Act which the Provisional
Parliament enacted with the object, among others, of
putting an end to this litigation. And it is no disparage-
ment to their learned counsel to say that what remained of
the campaign has been fought with such weak arguments as
overtaxed ingenuity could suggest.
It will be convenient here to set out the material
provisions of the Constitution on which the arguments before
us have largely turned.
Article 31 (2). No property movable or
immovable ……… shall be acquired for public purposes
under any law authorising ……… such acquisition
unless the law provides for compensation for the property
acquired and either. fixes the amount of compensation or
specifies the principles on which and the manner in which
the compensation is to be determined and given.
(3) No such law as is referred to in clause (2) made by
the Legislature of a State shall have effect unless
900
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 here-
after make-
(i) for the purpose of imposing or levying any tax or
penalty, or
(ii) for the promotion of public health or the preven-
tion 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 ……
31-A. Saving of laws providing for acquisition of
estates, etc.–(1) Notwithstanding anything in the forego-
ing provisions of this Part no law providing for the acqui-
sition by the State of any estate or of any rights therein
or for the extinguishment or modification of any such rights
shall be deemed to be void on the ground that it is incon-
sistent with, or takes away or abridges any of the rights
conferred by any provisions of this Part: …….
31-B. Validation of certain Acts and Regulations.-
Without prejudice to the generality of the provisions con-
tained in article 31-A none of the Acts and Regulations
specified in the Ninth Schedule nor any of the provisions
thereof shall be deemed to be void, or ever to have become
void, on the ground that such Act,
901
Regulation or provision is inconsistent with, or takes away
or abridges any of the rights conferred by any provisions of
this Fart, and notwithstanding any judgment, decree or
order of any court or tribunal to the contrary, each of the
said Acts and Regulations shall, subject to the power of
any competent Legislature to repeal or amend it, continue in
force.
It will be seen that the scope of article 31 (4) is at
once narrower and wider than that of article 31-A; the
former has application only to statutes which were pending
in the legislature at the commencement of the Constitution,
whereas the latter is subject to no such restriction.
Again, article 31 (4) excludes attack only on the ground
of contravention of article 31 (2), while article 3 I-A bars
objections based on contravention of other provisions of
Part III as well, such as articles 14 and 19. This indeed
was the reason for the enactment of articles 31-A and 31-B,
as the words of exclusion in article 31 (4) were found inapt
to cover objections based on contravention of article 14.
On the other hand, the law referred to in article 31 (4)
covers acquisition of any kind of property, while article
31-A relates only to the acquisition of a particular kind of
property, viz., estates and rights therein, and what is more
important for our present purpose, the non obstante clause
in article 31 (4) overrides all other provisions in the
Constitution including the List of the Seventh Schedule,
whereas a law which falls within the purview of article a
1-A could only prevail over “the foregoing provisions of
this Part”. Now, the three impugned statutes fall within the
ambit of both article 31 (4) and articles 31-A and 31-B.
Putting aside the latter articles for the moment, it is
plain that, under article 31 (4), the three impugned stat-
utes are protected from attack in any court on the ground
that they contravene the provisions of article 31(2). These
provisions, so far as they are material here, are (i) that a
law with respect to acquisition of property should authorize
acquisition only for a public purpose and (ii) that such
law should provide for compensation, etc. Mr. Das, while
admitting that
902
(ii) was a “provision” of article 31 (2), submitted that (i)
was not. According to him clause (2)assumed but did not
“provide” that acquisition should be authorised only for a
public purpose. I cannot accept that view. In my opinion,
the clause seeks also to impose a limitation in regard to
public purpose. The clause was evidently worded in that
form as it was copied (with minor variations) from section
299 (2) of the Government of India Act, 1935, which was
undoubtedly designed to give effect to the recommendation of
the Joint Parliamentary Committee in para. 369 of their
Report that two conditions should be imposed on expropria-
tion of private property: “We think it (the provision
proposed) should secure that legislation expropriating or
authorising the expropriation of the property of private
individuals should be lawful only if confined to expropria-
tion for public purpose and if compensation is determined
either in the first instance or in appeal by some independ-
ent authority”. It is thus clear that section 299 (2) was
intended to secure fulfilment of two conditions subject to
which alone legislation authorising expropriation of private
property should be lawful, and it seems reasonable to con-
clude that article 31 (2) was also intended to impose the
same two conditions on legislation expropriating private
property. In other words, article 31 (2)must be under-
stood as also providing that legislation authorising expro-
priation of private property should be lawful only if it was
required for a public purpose and provision was made for
payment of compensation. Indeed if this were not so, there
would be nothing in the Constitution to prevent acquisition
for a non-public or private purpose and without payment of
compensation–an absurd result. It cannot be supposed that
the framers of the Constitution, while expressly enacting
one of the two well-established restrictions on the exercise
of the right of eminent domain, left the other to be import-
ed from the common law. Article 81 (2) must therefore, be
taken to provide for both the limitations in express terms.
An attack on the
903
ground of contravention of these provisions implies that the
law in question authorises acquisition without reference to
a public purpose and without payment of compensation. This
was precisely the objection raised both by Mr. Das and Dr.
Ambedkar to the constitutional validity of the impugned
statutes, and such objection really amounts to calling those
laws in question on the ground that they contravened the
provisions of article 31 (2), though learned counsel stoutly
denied that they were relying on the provisions of article
31(2). The denial, however, seems to me to be based on a
quibbling distinction without a difference in substance.
Their main attack was really grounded on the absence of
these two essential prerequisites of valid legislation
authorising acquisition of private property, though Mr. Das
would deduce them by implication from entry 36 of List II
and entry 42 of List III, while Dr. Ambedkar sought to
derive them from the spirit of the Constitution. But this
is only a form of stating the objection which, in substance,
is that the statutes are bad because of the absence of a
public purpose and the omission to provide for a just com-
pensation. This, in fact, was the burden of the argument
before us. If, then, these two grounds of attack fall within
the purview of article 31(4), the words “notwithstanding
anything in this Constitution” are apt to exclude such
grounds howsoever they are derived–whether from the entries
in the legislative Lists or from the spirit of the Constitu-
tion-for both alike are covered by those words. Indeed, if
the objection based on the absence of a public purpose and
of a provision for just compensation were still to be open,
clause (4) of article 31 would be meaningless surplusage.
It is obvious that that clause was specially designed to
protect the impugned statutes and other laws similarly
enacted from attack in a court of law on the aforesaid
grounds and, if they were nevertheless to be considered as
not being within the protection, it is difficult to see what
the use of article 31 (4) would be. Learned counsel were
unable to suggest any. The fact is that article 31 (4) was
904
designed to bar the jurisdiction of courts to entertain
objections to the validity of a certain class of enactments
on the two-fold ground referred to above, and its whole
purpose would stand defeated if the zemindars’ contention
were to prevail.
Even if it were open to the court to consider these
grounds of objection, they are, in my opinion, unsustain-
able. As pointed out already, article 31-A operates as an
exception to article 31 (2) read with article 13, only in
respect of laws authorising acquisition of “estates” and
rights therein, and this exception is to be deemed to have
been part of the Constitution from its commencement. But it
has no application to laws authorising acquisition of other
kinds of property and, as regards these, the requirements as
to public purpose and payment of compensation are still
enforced by the express provisions of article 31 (2). In the
face of the limitations on the State’s power of compulsory
acquisition thus incorporated in the body of the Constitu-
tion, from which “estates” alone are excluded, it would, in
my opinion, be contrary to elementary canons of statutory
construction to read, by implication, those very limitations
into entry 36 of List II. alone or in conjunction with entry
42 of List III of the Seventh Schedule, or to deduce them
from “the spirit of the Constitution”, and that, too, in
respect of the very properties excluded.
It is true that under the common law of eminent domain
as recognised in the jurisprudence of all civilized coun-
tries, the State cannot take ‘the property of its subject
unless such property is required for a public purpose and
without compensating the owner for its loss But, when these
limitations are expressly provided for and it is further
enacted that no law shall be made which takes away or
abridges these safeguards, and any such law, if made, shall
be void, there can be no room for implication, and the words
“acquisition of property” must be understood in their natu-
ral sense of the act of acquiring property, without import-
ing into the phrase an obligation to pay
905
compensation or a condition as to the existence of a public
purpose. The entries in the Lists of the Seventh Schedule
are designed to define and delimit the respective areas of
legislative competence of the Union and State Legislatures,
and such context is hardly appropriate for the imposition of
implied restrictions on the exercise of legislative powers,
which are ordinarily matters for positive enactment in the
body of the Constitution.
There are indications in article 31 itself to show that
the expression “acquisition of property in entry 36 of List
II does not in itself carry any obligation to pay compensa-
tion. Clause (4) of that article postulates a “law” autho-
rising acquisition of property but contravening the
provisions of clause (2), that is without a public purpose
or payment of compensation.’ Similarly, clause (5)(b), which
excepts certain categories of “laws” from the operation of
clause (2), contemplates laws being made without a public
purpose or payment of compensation. Such laws can be made by
a State Legislature only under entry 36 which must, there-
fore, be taken to confer a legislative power unfettered by
any implied restrictions. It was suggested that the laws
referred to in sub-clause (b) of clause (5) are laws made in
exercise of the taxing power or the police power of the
State as the case may be, and that the sub-clause was in-
serted only by way of abundant caution. This is hardly a
satisfactory answer. Whatever may be the position as to a
taxing law, in regard to the source of legislative power,
laws under heads (2) and (3) of subclause (b) must neces-
sarily be referable to, and derive their competence from the
legislative power under entry 36 of List II, in so far as
they purport to authorise acquisition of any property, for
the police power of the State is only the general power to
regulate and control the exercise of private rights and
liberties in the interests of the community and does not
represent any specific head of legislative power. And even
that answer is not available to Mr. Das in regard to clause
(4).
117
906
Nor is the position improved for the zemindars by read-
ing entry 36 of List II and entry 42of List III together.
It was said that the words “subject to the provisions of
entry 42 in List III” must be taken to mean that the law-
making power under entry 36 could only be exercised subject
to the two conditions as to public purpose and payment of
compensation, both of which are referred to in entry 42.
Those words, in my opinion, mean no more than that any law
made under entry 36 by a State Legislature can be displaced
or overridden by the Union Legislature making a law under
entry 42 of List III. That they cannot bear the interpreta-
tion sought to be put upon them by Mr. Das is clear from the
fact that similar words do not occur in entry 33 of List I
which confers on Parliament the power of making laws with
respect to acquisition or requisitioning of property for the
purposes of the Union. For, if the restrictive conditions
as to public purpose and payment of compensation are to be
derived only from those words, then it must follow that in
the absence of those words in entry 33, Parliament can make
laws authorising acquisition or requisitioning of property
without a public purpose and a provision for compensation.
No reason was suggested why parliamentary legislation with
respect to acquisition or requisitioning of property is
to be free from such restrictive conditions while State
legislation should be subject to them. The fact is that the
law-making power of both Parliament and State Legislatures
can be exercised only subject to the aforesaid two restric-
tions, not by reason of anything contained in the entries
themselves, but by reason of the positive provisions of
article 31 (2), and, as laws falling under article 31 (4)or
under articles 31-A and 31-B cannot be called in question in
a court of law for non-compliance with those provisions,
such laws cannot be struck down as unconstitutional and
void.
It was further contended that the power to make a law
under entry 42 of List III was a power coupled with a duty,
because such law was obviously intended.
907
for the benefit of the expropriated owners, and where the
Legislature has authorised such expropriation, it was also
bound to exercise the power of making a law laying down the
principles on which such owners should be compensated for
their loss. Reliance was placed in support of this somewhat
novel contention on the well-known case of Julius v. Bishop
of Oxford.(1) That case, however, has no application here.
While certain powers may be granted in order to be exercised
in favour of certain persons who are intended to be benefit-
ed by their exercise, and on that account may well be re-
garded as coupled with a duty to exercise them when an
appropriate occasion for their exercise arises, the power
granted to a legislature to make a law with respect to any
matter cannot be brought under that category, It cannot
possibly have been intended that the legislature should be
under an obligation to make a law in exercise of that power,
for no obligation of that kind can be enforced by the court
against a legislative body.
Mr. Somayya’s argument based on clause (3) of article
31, to which reference has been made earlier, is equally
untenable. It is true that the “Legislature” of a State
includes the Governor and that a bill passed by such
Legislature cannot become a law until it receives the Gover-
nor’s assent. Article 200, however, contemplates one of
three courses being adopted by the Governor when a bill is
presented to him after it is passed by the House or Houses
of Legislature: (1) to give his assent, or (2) to withhold
assent, or (3) to reserve the bill for the consideration of
the President. The first proviso, to that article deals
with a situation where the Governor is bound to give his
assent and has no relevance here. The second proviso makes
reservation compulsory where the bill would, “if it became
law”, derogate from the powers of the High Court, but such
reservation, it is important to note, should be made without
the Governor himself giving his assent to the bill. It is
significant that the article does not contemplate the
(1) L.R. 5 H.L. 214.
908
Governor giving his assent and thereafter, when the bill has
become a full-fledged law, reserving it for the considera-
tion of the President. Indeed, the Governor is prohibited
from giving his assent where such reservation by him is made
compulsory. The Constitution would thus seem to contemplate
only “bills” passed by the House or Houses of Legislature
being reserved for the consideration of the President and
not “laws” to which the Governor has already given his
assent. It was said that article 31 (3) provides a special
safeguard which, in order to ensure that no hasty or unjust
expropriatory legislation is passed by a State Legislature,
requires for such legislation the assent of both the Gover-
nor and the President, and, to make this clear, the words,
‘law” and “legislature” were deliberately used in clause
(a). I am unable to agree with this view. The term “legis-
lature” is not always used in the Constitution as including
the Governor, though article 168 makes him a component part
of the State Legislature. In article 173, for instance, the
word is clearly used in the sense of the ,,Houses of legis-
lature” and excludes the Governor. There are other provi-
sions also where the word is used in contexts which exclude
the Governor. Similarly the word “law” is sometimes loosely
used in referring to a bill. Article 31 (4), for instance,
speaks of a ”bill” being reserved for the President’s
assent “after it has been passed” by the “legislature of a
State” and of “the law so assented to.” If the expression
“passed by the legislature” were taken to mean “passed by
the Houses of the legislature and assented to by the Gover-
nor” as Mr. Somayya would have it understood, then, it
would cease to be a “bill” and could no longer be reserved
as such. Nor is the phrase “law so assented to” strictly
accurate, as the previous portion of the clause makes it
clear that what is reserved for the President’s assent and
what he assents to is a “bill” and not a law. The phrase
obviously refers to what has become a law after receiving
the assent of the President. Similarly, article 31 (3)
must, in any judgment, be understood as
909
having reference to what, in historical sequence, having
been passed by the House or Houses of the State Legislature
and reserved by the Governor for the consideration of the
President and assented to by the latter, has thus become a
law. If it was intended that such a law should have the
assent of both the Governor and the President, one would
expect to find not only a more clear or explicit provision
to that effect, but also some reference in article 200 to
the Governor’s power to reserve a measure for the considera-
tion of the President after himself assenting to it. On the
other hand, as we have seen, where reservation by the Gover-
nor is made obligatory, he is prohibited from giving his
assent.
In the view I have expressed above that the objections
based on the-lack of a public purpose and the failure to
provide for payment of just compensation are barred under
article 31 (4) and are also devoid of of merits, it becomes
unnecessary to consider what is a public purpose and whether
the acquisition authorised by the impugned statutes sub-
serves any public purpose. Nor is it necessary to examine
whether the scheme of compensation provided for by the
statutes is so illusory as to leave the expropriated owners
without any real compensation for loss of their property.
Turning now to the special points arising in particular
cases, it was urged by Mr. Das that section 4 (b) of the
Bihar Act, which provides that all arrears of rent, royal-
ties and cesses due for any period prior to the date of the
vesting of the estates in Government “shall vest and be
recoverable by the State” was unconstitutional and void. In
the first place, there was no public purpose to be served by
the acquisition of such property. The Government evidently
lacked funds for the payment of even the illusory compensa-
tion provided for in the Act, and accordingly, hit upon the
device of acquiring these arrears on payment of only 50
per cent. of their value as provided in section 24. Raising
funds
910
for augmenting the Treasury could not be regarded as a
public purpose such as would justify expropriation of pri-
vate property Secondly, it was said that these ‘arrears’
would represent so much money when realised, and money could
not be the subject of compulsory acquisition as the obliga-
tion to pay compensation would practically turn such acqui-
sition into a forced loan. Nor could the payment of 50 per
cent of the face value of the arrears be regarded as compen-
sation for the loss of the total arrears, for, refund of one
half of a sum of money taken away could never make good the
loss of the. balance. The argument proceeds on a misconcep-
tion. Whatever may be the position as regards the acquisi-
tion of money as such, it is not correct to say that a law
made under entry 36 of List II cannot authorise acquisition
of choses in action like arrears of rent due from the ten-
ants which are covered by the term “property” used in that
entry and in article 31. It is equally fallacious to argue
that a payment in cash or ‘in Government bonds of half the
amount of such arrears leaves the zemindar without compensa-
tion for the balance. It is unrealistic to assume that
arrears which had remained uncollected over a period of
years during which the zemindar as landlord had the advan-
tage of summary remedies and other facilities for collec-
tion, represented so much money or money’s worth in his
hands when he was to cease to be a landlord and to have no
longer those remedies and facilities. When allowance is
made for doubtful and irrecoverable arrears and the trouble
and expense involved in the collection of the rest of them
the payment of 50 per cent. of the face value of the entire
arrears must, as it seems to me, be considered reasonable
and fair compensation for taking them over. Indeed, the
contention leaves one almost wondering what advantage the
zemindars would gain by seeking to overthrow a provision in
the Act which may well prove beneficial to them. However
that may be, for the reasons already indicated, article 31
(4) bars a challenge on these two grounds, and the objec-
tions to section 4 (b) cannot be entertained.
911
An attack was also directed against section 28 (1) (f)
which provides for a deduction on a percentage basis out of
the gross assets as “cost of works of benefit to the raiyats
of such estate or tenure”, in ascertaining the net assets on
which compensation is to be based. It was said that there
was no evidence to show that it was usual for the zemindars
to incur such expenditure, and that the deduction was a mere
contrivance to reduce the compensation payable for the
acquisition of their estates. The provision for such deduc-
tion was therefore a fraud on the Constitution. The argu-
ment, however, overlooks the well-established obligation of
the Zemindars to maintain and repair the irrigation tanks
and channels in the villages comprised in their estates. As
the Privy Council pointed out in The Madras Railway Co. v.
Zemindar of Carvatenagaram(1) “the zemindars have no power
to do away with these tanks in the maintenance of which
large numbers of people are interested, but are charged,
under Indian law, by reason of their tenure, with the duty
of preserving and repairing them”. These are, obviously,
the works of benefit to the raiyats of the estate, and their
cost, which the zemindars are thus under an obligation to
bear, is a perfectly legitimate deduction in computing the
net assets of the estate. If the zemindars had, in the
past, neglected this duty, that does not affect the proprie-
ty of the deduction before determining the compensation
payable to them. It is, therefore, idle to say that it is a
mere contrivance for reducing the compensation. This apart,
if, as I have endeavoured to show, payment of compensation
is not a justiciable issue in the case of the impugned
statutes, having regard to articles 31 (4),31-A and 3 1-B,
it is not open to the court to inquire whether a deduction
which results in reducing the compensation is unwarranted
and therefore a fraud on the Constitution.
LastLy, Mr. Das turned his attack on section 32 (2) read
with section 43 (2) (p). Under the former provision compen-
sation was payable in cash or in bonds or partly in cash and
partly in bonds. The bonds
(1) (1874) 1 I.A, 364,
912
were to be either negotiable or non-negotiable and nontrans-
ferable and were payable in forty equal instalments. Power
was given to the State Government under section 43 (2)(p) to
frame rules providing for “the proportion in which compensa-
tion shall be payable in cash and in bonds and the manner
of payment of such compensation”. It was argued that,
while the Constitution conferred power on the legislatures
under entry 42 of List III to make laws with respect to the
principles on which compensation for property acquired was
to be determined and the form and the manner in which
such compensation was to be given, it was not competent
for the Bihar Legislature to delegate this essential legis-
lative power to the executive government. Section 43 (2)(p)
being thus void and inoperative, section 32 (2) must also
fall to the ground, being vague and incapable by itself of
being given effect to, and, as payment of compensation was
an inextricable part of the scheme of acquisition under the
Act, the entire Act must go. I see no force in this argu-
ment. The legislature has applied its mind to the form in
which compensation has to be paid and has fixed the number
of equal instalments in which it should be paid. It, has
also provided for payment of interest on the compensation
amount in the meantime. The proportion in which the compen-
sation could be paid in cash and in bonds and the intervals
between the instalments have been left to be determined by
the executive government as those must necessarily depend on
the financial resources of the State and the availability of
funds in regard to which the executive government alone can
have special means of knowledge. By no standard of permis-
sible delegation can the vesting of such limited discretion
by a legislature in an administrative body be held incompe-
tent. The same remark applies to the delegation of rule-
making powers in regard to payment of compensation under the
other two Acts.
It was contended by Mr. Somayya that the Madhya Pradesh
Act was not duly passed as no question was put by the Speak-
er, at the third reading of the bill
913
on the motion that it be passed into law, as required by the
provisions of rule “20 (1) of the rules governing legisla-
tive business then in force, and that the omission was not a
mere “irregularity of procedure” which the court is barred
from enquiring into under article 212 (1)of the Constitu-
tion. Rule 20 (1) reads as follows:
“A matter requiring the decision of the Assembly shall
be decided by means of a question put by the Speaker on a
motion made by a member”.
What appears to have happened is this. One of the
Ministers moved that “The C.P. and Berar Abolition of Pro-
prietary Rights (Estates, Mahals, Alienated Lands) Bill,
1949, (No. 64 of 1949) as considered by the House be passed
into law”. Thereupon the Speaker read the motion to the
House, and this was followed by several speeches welcoming
the measure, amid general acclamation in the House, as a
great boon to the tillers of the soil. The official report
of the proceedings prepared by the Secretary under rule
115(1), however, did not record that the Speaker put the
question in the usual form: “The question is etc.” and that
the motion was carried. It was argued that the official
report being the only “authentic record of the proceedings
of the Assembly” under rule 115(2), it must be taken to be
conclusively established that the motion was not put to the
House and carried by it. There is, in my opinion, no sub-
stance in the objection. The original Bill signed and
authenticated by the Speaker was produced before us, and it
contains an endorsement by the speaker that the Bill
was.passed by the Assembly on 5th April, 1950. The endorse-
ment was signed by the Speaker on 10th May, 1950. The offi-
cial report of the proceedings appears to have been prepared
on 21st June, 1950, and was signed by the Speaker on 1st
October, 1950. When he signed the report the Speaker did not
apparently notice the omission as to the motion having been
put and carried. Such omission cannot, in the face of the
explicit statement by the Speaker endorsed on the Bill, be
taken
118
914
to establish that the Bill was not put to the House and
carried by it. In any case, the omission to put the motion
formally to the House, even if true, was, in the circum-
stances, no more than a mere irregularity of procedure, as
it is not disputed that the overwhelming majority of the
members present and voting were in favour of carrying the
motion and no dissentient voice was actually raised.
Mr. Somayya raised a further contention that in regard
to the malguzari lands covered by the Madhya Pradesh Act,
articles 31-A and 31-B could be of no assistance to the
Government, as such lands are not “estates” within the
meaning of clause (2) of article 31-A with the result
that .the objection based on article 14 as to discrimination
in the matter of payment of compensation must prevail. It
will be recalled that the High Court of Patna held the Bihar
Act unconstitutional as being discriminatory in providing
for payment of compensation, and it was to overcome that
difficulty that articles 31-A and a1-B were inserted in the
Constitution. It was conceded by the learned Advocate-
General of Madhya Pradesh that these malguzari lands could
not be regarded as estates within the meaning of article
31-A read with the Tenancy Acts in force in Madhya Pradesh,
but he contended that, inasmuch as article 31-B purported to
validate specifically the Madhya Pradesh Act among others,
and as that article was not limited in its application to
estates, the objection could not prevail. Mr. Somayya,
however, submitted that the opening words of article 31-B,
namely, “Without prejudice to the generality of the provi-
sions contained in article 31-A” showed that the mention of
particular statutes in article 31-B read with the Ninth
Schedule was only illustrative, and that, accordingly,
article 31-B could not be wider in scope. Reliance was
placed in support of this argument upon the decision of the
Privy Council in Sibnath Banerji’s case(1). I cannot agree
with that view. There is nothing in article 31-B to indi-
cate that the specific mention of
(1) [1945] F.C.R. 195 (P.C.)
915
certain statutes was only intended to illustrate the appli-
cation of the general words of article 31-A. The opening
words of article 31-B are only intended to make clear that
article 31-A should not be restricted in its application by
reason of anything contained in article 31-B and are in no
way calculated to restrict the application of the latter
article or of the enactments referred to therein to acquisi-
tion of “estates.” The decision cited affords no useful
analogy.
In some of the cases the estates sought to be acquired
are situated in what was previously the territory of Indian
States and belong to their former rulers. On the merger of
those States in Madhya Pradesh or Uttar Pradesh, as the case
may be, by virtue of the “covenant of merger” entered into
between the rulers and the Government of India the proper-
ties in question were recognised to be the “private proper-
ty” of the Rulers. In these eases it was urged that that
estates sought to be acquired formed part of the Rulers’
“personal rights” guaranteed to them under the instrument of
merger, and that neither the impugned statutes nor the
notifications issued thereunder could deprive the Ruler of
such properties in contravention of article 362. The Attor-
ney-General had several answers to this argument, including
the bar under article 363 to interference by courts in
disputes arising out of agreements, covenants, etc., by
Rulers of Indian States to which the Government of India was
a party. But a short and obvious answer is that there was
no contravention of any guarantee or assurance given
by the Government under the covenant of merger, as the
estates in question are sought to be acquired only as the
“private property” of the Rulers and not otherwise. The
compensation provided for, such as it is, is in recognition
of their ‘private proprietorship, as in the case of any
other owner. There is, therefore, no force in this objec-
tion. In Appeal No. 285 of 1951 preferred by the Raja of
Kapurthala, where a similar objection was raised, it was
further alleged that the privy purse of the Ruler was fixed
at a low figure in consideration of the Oudh
916
Estate being left to be enjoyed by him as his private
property, and that its compulsory taking over would deprive
him of the means of discharging his liability to maintain
the members of his family. In the absence of any material
to establish the facts, the allegation calls for no consid-
eration.
Certain other minor points were also raised in some of
the cases but they are not worth mentioning as they proceed-
ed either on a misapprehension or were palpably unsound.
Thus all the objections raised to the constitutional
validity of the Bihar Act, the Madhya Pradesh Act and the
Uttar Pradesh Act or any part thereof fail and are over-
ruled,
MAHAJAN J.–This is an appeal under article 132 (3) of
the Constitution of India from a judgment of the Full Bench
of the High Court of Judicature at Patna, dated the 12th
March, 1951, whereby the High Court declared the Bihar Land
Reforms Act, 1950, ultra vires on the ground of its in-
fringement of article 14 of the Constitution, but decided
against the respondent on all other points.
On the 30th December, 1949, a Bill intituled the Bihar
Land Reforms Bill was introduced in the Legislative Assem-
bly of Bihar and was passed by both the Houses of Legisla-
ture, and after having been reserved for the consideration
of the President of India, received his assent on the 11th
September, 1950. The Act was published in The Bihar Govern-
ment Gazette on the 25th September, 1950, and on the same
day a notification under section 1 (3) of the Act was pub-
lished declaring that the Act would come into force imme-
diately. On the same day, a notification under section 3
of the Act was published stating that the estates and ten-
ures belonging to the respondent and two others passed to
and became vested in the State of Bihar under the provisions
of the Act. The respondent filed a petition in the High
Court of Judicature at Patna under article 226 of the Con-
stitution, challenging the constitutionality of the
917
said Bihar Land Reforms Act and praying for a writ in the
nature of mandamus to be issued on the State of Bihar re-
straining it from acting in any manner by virtue of, or
under the provisions of, the said Act. This application was
heard along with three title suits and other similar appli-
cations filed by various zemindars of Bihar by a Special
Bench of the High Court. By three separate but concurring
judgments, the Court declared the Act to be unconstitutional
and void on the ground of its infringement of fundamental
right under article 14 of the Constitution.
The validity of the Act was attacked before the High
Court on the following grounds:
1. That the Bihar Legislature had no competence to pass
it.
2. That it contravened clause (1) of article 81 of the
Constitution.
3. That the vesting of the estates in the State of Bihar
under the Act being in effect an acquisition of the estates,
it was invalid as that acquisition was not for a public
purpose and the provision for compensation was illusory.
4. That it contravened article 19 (1) (f) of the Consti-
tution.
5. That some of its provisions were invalid on the
ground of delegation of legislative powers.
6. That it was a fraud on the Constitution.
7. That it was unconstitutional as it contravened arti-
cle 14 of the Constitution.
The Court held as follows :–
1. That the Bihar Legislature was competent to enact the
legislation.
2. That the Act did not contravene article 31 (1) of the
Constitution.
3. That the acquisition of the estates and tenures was
for a public purpose.
4. That the subject-matter of the Act fell under article
31 (4) of the Constitution.
918
5. That article 19 (1) (f) had no application.
6. That whatever powers were delegated to the executive
were permissible.
7. That the Act was not a fraud on the Constitution.
8. That the Act was unconstitutional as it contravened
article 14 of the Constitution.
During the pendency of the appeal against the decision
of the High Court the Union Government with a view to put an
end to the litigation of the zamindars brought forward a
Bill to amend the Constitution and this was passed by the
requisite majority as the Constitution (First Amendment)
Act, 1951. The zamindars brought petitions under article 32
of the Constitution impugning the Amendment Act itself as
unconstitutional and void. All these petitions were disal-
lowed. by this Court on the 5th October, 1051, and it was
held that the Constitution (First Amendment) Act, 1051, had
been validly enacted. In view of the Amendment Act any
argument regarding the unconstitutionality of the Bihar Act
based on the ground that the provisions of that Act con-
travened articles 14, 19 or 31 of the Constitution does
not survive and the Act is not open to challenge. on any
such ground. As the Act has been held invalid by the High
Court solely on the ground that it violated the provisions
of article 14 of the Constitution, the basis of the judgment
declaring the Act to be unconstitutional is no longer tena-
ble and it has therefore to be reversed in case this Court
agrees with the decision of the High Court on the points
decided against the respondent.
Mr. P.R. Das for the respondent frankly conceded that no
objection to the validity of the Act at this stage could be
raised on the ground that it contravened any of the provi-
sions of Part III of the Constitution. He, however, sup-
ported the decision of the Court on grounds decided against
him by that Court and urged the following points
919
1. That it was not within the competence of the Bihar
State Legislature to enact the impugned Act.
2. That the acquisition of the estates not being for
public purpose, the Act was unconstitutional.
3. That the legislative power in various sections of the
Act has been abdicated in favour of the executive and such
abdication of power was unconstitutional.
4. That the Act was a fraud on the Constitution and that
certain parts of the Act were unenforceable on account of
vagueness and indefiniteness.
The foundation of Mr. P.R. Das’s attack on the vires of
the Act mainly rests on the contention that it is implicit
within the language of entry 36 of List II of the Seventh
Schedule of the Constitution that property could not be
acquired without payment of compensation, the only effect of
a compulsory power of acquisition against the individual
being that there is the power to oblige him to sell and
convey property when the public necessities require it, but
that the power to take compulsorily raises by implication a
right to payment; in other words, there is a concomitant
obligation to pay and the power to acquire is inseparable
from the obligation to pay compensation and as the provi-
sions of the statute in respect of payment of compensation
are illusory, it is unconstitutional.
As regards article 31 (2) of the Constitution, it is
said that it deals with the fundamental right regarding
property which is expressed in the clause in negative lan-
guage. In entry 36 it is expressed in an affirmative form.
The provisions of articles 31 (4) and 31-A and 31-B, though
they deprive the expropriated proprietor of his rights
provided in Part III of the Constitution, do not in any way
affect the ambit of entry 36 and empower the State Legisla-
ture to make a law for compulsory acquisition of property
without payment of compensation in the true sense of that
term. Emphasis is laid on the words “subject to the provi-
sions of entry 42” contained in entry 36 and it is contended
that the exercise of legislative power under
920
entry 36 is conditional on exercise of power under entry 42,
that one could not be exercised without the other and that
the power conferred by the two entries had to be construed
on the assumption that the acquisition was to be paid for.
It is further contended that the legislative power in entry
42 is a power coupled with duty which the legislature was
bound to exercise for the benefit of the person whose
property was taken in exercise of the legislative power
under entry 36. It is also said that the Bihar Legislature
had legislated both under entry 36 and entry 42 and intended
to take the property conditional on payment of compensation
but if it transpires that the provisions it has made about
payment of compensation are illusory, then that part of the
Act would be void and as it could not have been intended by
the legislature to pass the Act in any truncated form in
which it would remain if the provisions regarding compensa-
tion are taken out of it, the whole Act should be held
unconstitutional.
To appreciate the contentions raised by Mr. Das on the
question of the competence of the Bihar Legislature to enact
the Bihar Land Reforms Act, 1950, it is necessary to refer
to its provisions and to see on what subjects the legisla-
ture has purported to enact the law.
The title of the Act indicates that the law provides for
some kind of land reform in Bihar. Its preamble gives no
indication as to the nature of these reforms except that it
provides for the constitution of a Land Commission to
advise the State Government on the agrarian policy, whatever
that expression may mean. The dominant purpose of the Act
is that of transference to the State of the interests of
proprietors and tenure-holders in land and of the mortgagees
and lessees of such interests including the interests in
trees, forests, fisheries, jalkars, ferries, huts, bazars,
mines and minerals. Section 3 provides that the Government
may, from time to time, by notification declare the estates
or tenures mentioned therein to have passed and become
vested in the State. Section 4 mentions ,the consequences
of such vesting. It enacts that the
921
interests of the proprietor or tenure-holder in any building
or part of a building comprised in such estate or tenure and
used primarily as office or cutchery for the collection of
rent of such estate or tenure, and his interests in trees,
forests, fisheries, jalkars, huts, bazars and ferries and
all other sairati interests as also his interest in the
subsoil including any rights in mines and minerals,
whether discovered or undiscovered, or whether being worked
or not, inclusive of such rights of lessee of mines and
minerals, comprised in such estate or tenure (other than the
interests of raiyats or under raiyats) shall vest absolutely
in the State free from all incumbrances. Clause (b) pro-
vides that all arrears of rents, including royalties and all
cesses together with interest, if any, due thereon for any
period prior to the date of vesting, which were recoverable
in respect of the estates or tenures of the proprietor or
tenure-holder and the recovery of which was not barred by
any law of limitation shall vest in, and be recoverable by,
the State. The expression “arrears of rent” includes ar-
rears in respect of which suits were pending on the date of
vesting or in respect of which decrees whether having the
effect of rent decree or money decree were obtained before
the date of such vesting and had not been satisfied and were
not barred by limitation and also includes the costs allowed
by such decrees. In other words, all outstandings in the
nature of rents and rent decrees that were due to the pro-
prietors or tenure-holders before the date of vesting and
before the State had any right, title or interest in the
estate would also pass to it. This seems to be a peculiar
and rather extraordinary consequence of the vesting of an
estate. Normally it has no relation to and cannot be re-
garded as an incident of the transference of the estates.
The clause is in effect,an independent provision laying down
that monies due to the proprietor or tenure-holder during
the period antecedent to the vesting and not realized by him
but which were in the course of realization, whether by
private effort or by means of pending suits or decrees
including the costs of those
119
922
suits and decrees will stand forfeited to the State. In
clause (c) the liability of the proprietors or tenureholders
for payment of arrears of revenue and cesses to the Govern-
ment prior to the date of vesting is kept alive. The other
consequences of vesting are that no suit can be maintained
for recovery of any money from a proprietor or tenure-holder
which is secured by a mortgage or charge on the estate and
no such estate or tenure covered by the Act is liable to.
attachment. The Collector is entitled to take charge of the
estate and to inspect the documents and accounts which he
thinks necessary to do for the management of the estate or
tenure. Section 5 permits the proprietors and tenure-hold-
ers to retain their homesteads but only in the capacity of
tenants free from the obligation to pay rent. Section 6
allows them to retain possession of lands in their khas
possession or in the possession of lessees under them, on
payment of rent as raiyats to the State in the status of
occupancy tenants. Section 7 provides that buildings to-
gether with lands on which such buildings stand and in the
possession of proprietors and tenure-holders and used as
golas, factories or mills shall be retained by them on
payment of rent. Section 8 gives a right of appeal to a
party aggrieved against the Collector’s order. In section0
it is provided that all mines comprised in the estate or
tenure as were in operation at the commencement of this Act
and were being worked directly by the proprietor or tenure-
holder shall be deemed to have been leased by the State
Government to the proprietor of tenure-holder. This section
does not include within its scope mines on which considera-
ble money might have been spent but which are actually not
in Operation. An artificial definition has been given in
section (2) sub-clause (m) to the expression “mines in
operation” as meaning mines regarding the working of which
notice has been served on Government under the Indian Mines
Act. Section 10 keeps alive subsisting lease of mines and
minerals, the lessee being deemed to be a lessee under the
Government. Buildings and lands appurtenant to a mine stand
transferred
923
to the State under the provisions of section 11 and they are
to be deemed’ to be leased by the State to the lessee with
effect from the date of vesting. Section 12 lays down the
constitution of a Mines Tribunal. Section 13 provides for
the management of the estates and tenures that vest in the
State. Sections 14, 15, 16, 17 and 18 make provisions
relating to the investigation of debts of proprietors and
tenure-holders and lay down the procedure for payment of
those debts. In section 19 provision is made for the ap-
pointment of compensation officer. Certain directions are
given in sections 20 and 21 regarding the procedure to be
adopted by the compensation officer when the proprietor has
only a certain share in an estate and where certain trusts
have been created by the tenure-holder or proprietor.
Section 22 defines “previous agricultural year” and the
phrase “gross assets” with reference to a proprietor or
tenure-holder. “GroSs assets” in the Act means the aggre-
gate of the rents including all cesses, which were payable
in respect of the estates or tenures of such proprietor or
tenureholder for the previous agricultural year, whether
payable by a subordinate tenant or the raiyats.those rents.
In the expression “gross assets” is also included the gross
income of the previous agricultural year from fisheries,
trees, jalkars, ferries, huts, bazars and sairati interests.
Gross income from forests has to be calculated on the basis
of the average gross annual income of twenty-five agricul-
tural years preceding the agricultural year in which the
date of vesting falls, which in the opinion of a forest
officer, the forests would have yielded if they had been
placed during the said period of twenty-five years under the
management of the State.
Section 23 lays down the method of computation of net
income. It provides that the net income of a proprietor or
tenure-holder shall be computed by deducting from the gross
asset of such proprietor or tenure-holder, as the case may
be, the following :
(a) any sum payable as land revenue or rent;
924
(b) any sum payable by such proprietor as agricultural
income-tax in respect of any agricultural income derived
from such estate or tenure for the previous agricultural
year;
(c) any sum payable by such proprietor or tenure holder
as income-tax in respect of any income derived from such
estate or tenure, other than royalties for the previous
agricultural year;
(d) any sum payable as chaukidari tax or municipal tax,
(e) cost of management of such estate or tenure at rates
varying from five to twenty per cent. according to the
amount of the gross asset. The lowest limit fixed is at Rs.
2,000, and the highest at any amount exceeding Rs. 15,000.
These rates appear to have been fixed in an arbitrary
manner bearing no relation whatsoever to the actual cost of
management. To illustrate, in the case of the Maharaja of
Darbhanga whose estate has a gross income of nearly forty-
eight lakhs, the cost of management, according to this
calculation, would work’ out to a sum of nine and a half
lakhs, which on the face of it looks startling; it can
hardly have any relation to the costs actually incurred.
The expense ratio under the head “management would ordinari-
ly be lowest for the highest gross income. It goes up in
proportion to the reduction in the amount of gross income.
The Act has, however, reversed this rule of economics with
the result that part of the money that on the principles
stated for determining compensation would be payable by way
of compensation to the proprietor or tenure-holder stands
forfeited by this artificial reduction of the net income.
Clause (f) provides for deduction from the gross assets of
cost of works of benefit to the raiyats of such estates or
tenures at rates varying from four to twelve and a half per
cent., the rate of four per cent. being applicable where
the gross asset does not exceed Rs. 5,000, and the rate of
twelve and a half per cent being applicable if the gross
asset exceeds Rs. 25,000. It is obvious
925
that the calculation of the cost of works of benefit to the
raiyats at a fiat rate without any reference to the actual
expenses that might have been incurred is a provision of a
confiscatory character. It artificially reduces the net
income which is the basis of the assessment of compensation.
The last clause(g) of this section allows deduction of any
other tax or legal imposition, payable in respect of such
estate or tenure not expressly mentioned in the earlier
clauses. Section 24 provides the manner of determination of
the compensation payable to the proprietor or tenureholder.
It lays down a sliding scale for the assessment of compensa-
tion. Where the net income does not exceed Rs. 500, the
compensation payable is twenty times the net income and
where the net income computed exceeds Rs. 1,00,000, it is
payable at three times the amount. The compensation in such
cases is merely nominal. In the case of the Maharaja of
Darbhanga, the estate acquired also comprised and purchased
by him by spending about a crore of rupees and also com-
prised mortgages, to the tune of half a crore. All these
vest in the Bihar State along with the inherited zemindaris
of the Maharaja and arrears of rent amounting to Rs.
30,00,000, while the total compensation payable is nearly a
sum of Rs. 9,00,000. This section further provides that to
the amount thus payable shall be added the amount of fifty
per cent. of the arrears of rent referred to in clause (b)
of section 4 along with the amount of compensation Payable
in respect of mines and minerals as determined under section
25. The section also lays down the method of assessment of
compensation in the case of persons who have only a share in
the zamindari or have other minor interests in the tenures
or estates where the estate or tenure is held in trust etc.,
or where they are of an impartible nature. In the case of
mines and minerals the method of assessment is laid down in
section 25. It has either to be fixed by agreement or by a
tribunal appointed for the purpose. The subsequent sections
provide lot the preparation of compensation roll and for
hearing of appeals etc, Section 32
926
lays down the method and manner of payment of compensation.
Sub-section (2) of this section enacts that the amount of
compensation shall be paid in cash or in bonds or partly in
cash and partly in bonds. The bonds shall be either negotia-
ble or non-negotiable and non-transferable and be payable in
forty equal instalments to the person named therein and
shall carry interest at two and a half per cent. per annum
with effect from the date of issue. Any disputes about
compensation between the proprietors or tenure holders
have to be determined by a tribunal appointed by the State
Government. Section 34 provides for the constitution of a
commission called the Bihar Land Commission. The other
provisions of the Act are of a miscellaneous character and
require no special mention. The last section authorizes
the State Government to make rules for carrying out the
provisions of the Act.
From this survey of the Act it appears that the law
enacted might be taken to relate to several items in the
legislative lists. ie., rights in or over land and land
tenures, forests, fisheries, mines and minerals, acquisition
of property and also principles on which compensation for
property acquired is to be determined. The pith and sub-
stance of the legislation however, in my opinion, is the
transference of ownership of estates to the State Government
and falls within the ambit of legislative head entry 36 of
List II. There is no scheme of land reform within the
framework of the statute except that a pious hope is ex-
pressed that the commission may produce one. The Bihar
Legislature was certainly competent to make the law on the
subject of transference of estates and the Act as regards
such transfers is constitutional.
The Act further deals with the realization of arrears of
rents due before the date of vesting of the estates to the
zemindars and forfeits fifty per cent. of such realization
to the State exchequer. It also in an indirect manner
forfeits the State exchequer part of the compensation money
which would have been payable
927
to the proprietors or tenureholders if the net income was
not reduced by deduction from the gross income of items of
artificial nature which have no relation to any actual
expenses. Both these provisions will be separately dealt
with hereinafter as, in my opinion, the enactment of these
provisions is unconstitutional
Having held that the Bihar Act is constitutional as
regards transfer of estates to the State and that this is
mainly an enactment under legislative head 36 of List II, it
is convenient now to examine the contention of Mr. Das to
the effect that in the contents of the power conferred on
the legislature by this entry their exists a concomitant
obligation to pay compensation and that as the provisions
regarding payment of compensation are illusory, the Act is
unconstitutional and that article 31 (4) of the Constitution
does not afford any protection against this attack.
For a proper appreciation and appraisal of the proposi-
tion of Mr. P. R. Das that the obligation to pay compensa-
tion is implicit in the language of entry :36 of List II of
the Seventh Schedule and that the power to take compulsorily
raises by implication a right to payment, the power to
acquire being inseparable from the obligation to pay compen-
sation, it is necessary to examine briefly the origin of the
power of the State on the subject of compulsory acquisition
of property. This power is a sovereign power of the State.
Power to take property for public use has been exercised
since olden times. Kent speaks of it as an inherent sover-
eign power. As an incident to this power of the State is
the requirement that property shall not be taken for public
use without just compensation. Mr. Broom in his work on
Constitutional Law says, “Next in degree to the right of
personal liberty is that of enjoying private property with-
out undue interference or molestation, and the requirement
that property shall not be taken for public use without just
compensation is but an affirmance of the great doctrine
established by the common law for the protection of private
property. It is founded in natural equity and is
928
laid down as a principle of universal law.” In the words of
Lord Atkinson in Central Control Board v. Cannon Brewery Co.
Ltd.(1), the power to take compulsorily raises by implica-
tion a right to payment.
On the continent the power of compulsory acquisition is
described by the term “eminent domain”. This term seems to
have been originated in 1625 by Hugo Grotius. who wrote of
this power in his work “De Jure Belli et Pacis” as follows:
“The property of subjects is under the eminent domain of
the State, so that the State or he who acts for it may use
and even alienate and destroy such property, not only in the
case of extreme necessity, in which even private persons
have a right over the property of others, but for ends of
public utility, to which ends those who founded civil socie-
ty must be supposed to have intended that private ends
should give way. But it is to be added that when this is
done the State is bound to make good the loss to those who
lose their property.”
The relationship between the individual’s right to
compensation and the sovereign’s power to condemn is dis-
cussed in Thayer’s Cases on Constitutional Law (Vol. I, p.
953) (mentioned on page 3 of Nichols on Eminent Domain) in
these words :–
“But while this obligation (to make compensation) is
thus well established and clear, let it be particularly
noticed upon what ground it stands, viz., upon the natural
rights of the individual. On the other hand, the right of
the State to take springs from a different source, viz., a
necessity of government. These two, therefore, have not the
same origin; they do not come, for instance, from any im-
plied contract between the State and the individual, that
the former shall have the property, if it will make compen-
sation; the right is no mere right of pre-emption, and it
has no condition of compensation annexed to it, either
precedent or subsequent; but there is a right to take,
(1) [1919] A.C. 744.
929
and attached to it as an incident, an obligation to make
compensation; this latter, morally speaking, follows the
other, indeed like a shadow but it is yet distinct from it,
and flows from another source.”
Shorn of all its incidents, the simple definition of the
power to acquire compulsorily or of the term “eminent do-
main” is the power of the sovereign to take property for
public use without the owner’s consent. The meaning of the
power in its irreducible terms is. (a) power to take, (b)
without the owner’s consent, (c) for the public use. The
concept of the public use has been inextricably related to
an appropriate exercise of the power and is considered
essential in any statement of its meaning. Payment of
compensation, though not an essential ingredient of the
connotation of the term, is an essential element of the
valid exercise of such power. Courts have defined “eminent
domain” so as to include this universal limitation as an
essential constituent of its meaning. Authority is universal
in support of the amplified definition of “eminent domain”
as the power of the sovereign to take property for public
use without the owner’s consent upon making just compensa-
tion.
It is clear, therefore, that the obligation for payment
of just compensation is a necessary incident of the power of
compulsory acquisition of property, both under the
doctrine of the English Common Law as well as under the
continental doctrine of eminent domain, subsequently adopted
in America.
The question for consideration is whether this obliga-
tion to pay compensation for compulsory acquisition of
property has been impliedly laid down by the constitution
makers in our Constitution under legislative head in entry
36 of List II and entry 33 of List I, or whether this all
important obligation which follows compulsory acquisition as
a shadow has been put in express and clear terms somewhere
else in the Constitution. To my mind, our Constitution has
raised this obligation to pay compensation for the
120
930
compulsory acquisition of property to the status of a funda-
mental right and it has declared that a law that does not
make provision for payment of compensation shall be void. It
did not leave the matter to be discovered and spelt out by
learned arguments at the Bar from out of the contents of
entry 36; they explicitly provided for it in. article 31 (2)
of the Constitution. As the obligation to pay has been made
a compulsory part of a statute that purports to legislate
under entry 33 of List I and entry 36 of List II, it is not
possible to accede to the contention of Mr. P.R. Das that
the duty to pay compensation is a thing inherent in the
language of entry 36. I agree with the learned Attorney-
General that the concept of acquisition and that of compen-
sation are two different notions having their origin in
different sources. One is founded on the sovereign power of
the State to take, the other is based on the natural right
of the person who is deprived of property to be compensated
for his loss. One is the power to take, the other is the
condition for the exercise of that power. Power to take was
mentioned in entry 36, while the condition for the exercise
of that power was embodied in article 31 (2) and there was
no duty to pay compensation implicit in the content of the
entry itself.
Reference in this connection may be made to the Govern-
ment of India Act, 1935. By section 299 of that statute a
fetter was imposed on the power of legislation itself. The
Constitution, however, declared laws not providing for
compensation as void and it not only placed a fetter on the
power of legislation but it guaranteed the expropriated
proprietor a remedy in article 32 of the Constitution for
enforcement of his fundamental right. I am therefore of the
opinion that Mr. Das is not right in his contention that
unless adequate provision is made by a law enacted under
legislative power conferred by entry 36 of List I for com-
pensation, the law is unconstitutional as entry 36 itself
does not authorize the making of such a law without provid-
ing for compensation. Then
931
it was said that entry 36 of List II was linked up with
entry 42 of the Concurrent List by the words “subject to”
occurring therein and that the validity of any law made in
exercise of legislative power under entry 36 was conditional
on the simultaneous exercise of the legislative power under
entry 42 and because there has been no valid exercise of
this power (the provisions of the impugned Act regarding the
determination of compensation being illusory), the legisla-
tion under entry 36 fails. In my opinion, this contention is
unsound. The two entries referred to above are merely heads
of legislation and are neither interdependent nor complemen-
tary to one another. It is by force of the provisions of
article 31 (2) that it becomes obligatory to legislate
providing for compensation under entry 42 of the Concurrent
List in order to give validity to a law enacted under entry
36 and not by reason of the use of the wards “subject to” in
the wording of the entry. No such words occur in entry 33
of the Union List. It cannot reasonably be argued that
Parliament could make a law for compulsory acquisition of
property for its purposes with out fulfilling the condition
of making a law under entry42 of the Concurrent List, but a
State Legislature in this respect is in a different situa-
tion. Such a contention, in my opinion, is untenable. The
only purpose of the words “subject to” occurring in entry
36 is to indicate that legislation under entry 36 would be
subject to any law made by Parliament in exercise of its
legislative power under entry 42 of the Concurrent List.
Both legislatures can legislate under entry 42 but the
Parliamentary statute made in exercise of powers under this
entry would have preference over a State law in case of
repugnancy and it was for this reason that reference was
made to entry 42 in the head of legislation mentioned in the
State List under entry 36. In other words, it only
means.that whenever a law is made by a State Legislature in
exercise of its legislative power under entry 36, that law
will be subject to the provisions of a Parliamentary statute
made in exercise of its legislative powers under entry 42 of
the Concurrent List.
932
Lastly it was urged that the legislative power conferred
in entry 42 of the Concurrent List is a power conferred for
the benefit of the expropriated owner and that the legisla-
ture is bound to exercise this power for his benefit whenev-
er it takes property under its compulsory powers,. in other
words, it was said that the power conferred by the entry was
coupled ,. with a duty to exercise it. Reference was made in
this connection to the observations of Lord Cairns in Julius
v. Bishop of Oxford(1). The principle of that decision is
that where power is conferred in the nature of a trust there
is an obligation to exercise it for the benefit of the
cestui que trust. These observations do not have any appo-
site application to the case of legislative powers con-
ferred by a constitution. The entries in the lists are
merely legislative heads and are of an enabling character.
Duty to exercise legislative power and in. a particular
manner cannot be read into a mere head of legislation. If
the argument of the learned counsel was sound, then it would
be open to this Court to issue a mandamus to the legislature
to exercise its power of legislation under entry 42, if it
failed to do so. Mr. Das. when faced with this question,
had to admit that he could not seriously contend that a
legislature could be directed to enact a statute if it did
not wish to do so. Failure to make a law under entry 42
cannot make a law made under entry 36 bad. In my opinion,
the decision in the case of Julius v. Bishop of Oxford (1)
has no relevancy to the matter before us.
The crucial point for determination in these appeals is to
discover the extent to which article 31 (4)of the Constitu-
tion or the new articles 31-A and a1-B have deprived the
expropriated proprietor of his rights or remedies in re-
spect of this matter and of the guaranteed right to get
compensation for property acquired. Article 31 (4) is in
these terms :-
“If any Bill pending at the commencement of this Con-
stitution in the legislature of a State has, after it has
been passed by such Legislature, been
(1) (1880) 5 App. Cas. 214.
933
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).”
Articles 31-A and 31-B are in these terms :–
“31-A. (1) Notwithstanding anything in the foregoing
provisions of this Part, no law providing for the acquisi-
tion by the State of any estate or of any rights therein or
for the extinguishment or modification of any such rights
shall be deemed to be void on the ground that it is incon-
sistent with, or takes away or abridges any of the rights
conferred by any provisions of this Part:
Provided that where such law is a law made by the Legis-
lature of a State, the provisions of this Article shall not
apply thereto unless such law, having been reserved for the
consideration the President has received his assent.
(2) In this article
(a) the expression ‘ estate’ shall in relation to any local
area have the same meaning as that expression or its local
equivalent has in the existing law relating to land tenures
in force in that area, and shall also include any jagir,
inam or musafi or other similar grant.
(b) the expression ‘rights’, in relation to an estate, shall
include any rights vesting in a proprietor, sub-proprietor,
under proprietor, tenure-holder or other intermediary and
any rights or privileges in respect of land revenue.
31-B. Without prejudice to the generality of the provi-
sions contained in article 31-A, none of the Acts and Regu-
lations specified in the Ninth Schedule nor any of the
provisions thereof shall be deemed to be void, or even to
have become void, on the ground that such Act, Regulation or
provision is inconsistent with or takes away or abridges any
of the rights conferred by, any provisions of this Part, and
notwithstanding any judgment, decree or order of any court
or tribunal
934
to the contrary, each of the said Acts and Regulations
shall, subject to the power of any competent legislature to
repeal or amend it, continue in force.
The language of article 31(4) is unequivocal in its
terms and states that when a Bill has received the assent of
the President according to the procedure prescribed in
article 31(3) and (4) 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).
In order to determine the scope of this clause, it is
necessary to determine what are the specific provisions of
clause (2) which clause (4) makes unjusticiable. A strict
construction has to be placed on the language of this
clause, it being in the nature of a debarring provision. In
my opinion, the provisions of sub-clause (2) made unjusti-
ciable by clause (4), relate to the determination and pay-
ment of compensation. The whole purpose of the clause is to
make the obligation to pay compensation a condition prece-
dent to the compulsory acquisition of property. The words
of the clause preceding the word “unless” are merely de-
scriptive of the law, the validity of which would be ques-
tionable if there was no provision for determination and for
payment of compensation for the property taken in its con-
tents. The use of the word “such” fully supports this
interpretation. The mandate of the clause is that such a
law must contain a provision for payment of compensation to
the expropriated proprietor. According to the Oxford
Dictionary, (Vol. 8, p. 1526) the expression provision”
when used in statutes, has reference to what is expressly
provided therein. What article 31 (4) really says is
that the contravention of the express provisions of
article 31 (2) relating to payment of compensation will not
be a justiciable issue. It has no reference to anything
that may be implied within the language of that clause. The
existence of a “public purpose” is undoubtedly an implied
condition of the exercise of compulsory powers of acquisi-
tion by the State, but the language of article 31 (2) does
not
935
expressly make it a condition precedent to acquisition. It
assumes that compulsory acquisition can be for a “public
purpose” only, which is thus inherent in such acquisition.
Hence article 31(4), in my opinion, does not bar the juris-
diction of the court from inquiring whether the law relating
to compulsory acquisition of property is not valid because
the acquisition is not being made for a public purpose. This
is also the view taken by the learned Judges of the Patna
High Court. The sovereign power to acquire property compul-
sorily is a power to acquire it only for a public purpose.
There is no power in the sovereign to acquire private
property in order to give it to private persons. Public
purpose is a content of the power itself. Reference in this
connection may be made to Willoughby’s Constitutional Law
(page 795). Therein it is stated,
“As between individuals, no necessity, however great, no
exigency, however imminent, no improvement, however valu-
able, no refusal, however unneighbourly, no obstinacy,
however unreasonable, no offers of compensation, however
extravagant, can compel or require any man to part with an
inch of his estate.”
Public purpose is an essential ingredient in the very
definition of the expression “eminent domain” as given by
Nichols and other constitutional writers, even though obli-
gation to pay compensation is not a content of the defini-
tion but has been added to it by judicial interpretation.
The exercise of the power to acquire compulsorily is condi-
tional on the existence of a public purpose and that being
so this condition is not an express provision of article 31
(2) but exists aliunde in the content of the power itself
and that in fact is the assumption upon which this clause of
the article proceeds.
The result of this discussion is that the scope of
article 31(4) is limited to the express provisions of arti-
cle 31 (2) and courts cannot examine either the extent or
the adequacy of the provisions of compensation contained in
any law dealing with the
936
acquisition of property compulsorily for public purpose but
the barring provisions of article 31 (4) do not in any way
touch the powers of the court to see whether the acquisition
has been made for public purpose. The provisions of this
clause also do not take away the court’s power to examine
whether the legislature that made the law has acted in
exercise of its law making power within the lists or has
merely made some other law though it has ostensibly exer-
cised its powers under a certain legislative head which
cannot be used to support the legislation.
As regards the new articles 31-A and 31-B, they merely
place beyond the reach of the court any enactment dealing
with compulsory acquisition of property which may infringe
any of the provisions of Part III of the Constitution; in
other words, article 13 (2) of the Constitution cannot be
called in aid to impugn the validity of such statutes.
Having determined the scope of article 31 (4), it is now
convenient to examine the extent of the protection given
by article: 31 (4) to the impugned statute.
Mr. Das is to a great extent right in his contention
–the point was not seriously challenged by the learned
Attorney-General.–that the law under challenge in the
matter of compensation is highly unjust or inequitable to
certain persons and in certain matters, and compensation in
some cases is purely illusory. Be that as it may, the
Constitution in express terms prohibits an enquiry in a
court of law into those matters. The same Constitutent
Assembly that provided the guarantees in article 31 (2) in
respect of payment of compensation and provided the remedy
in article 32 for enforcing the guaranteed right. took away
that remedy in the case of the Bihar and other zamindari
estates and substituted for it the procedure of article 31
(3) and (4), compliance with which would be sufficient to
make the laws valid and effective. However repugnant the
impugned law may be to our sense of justice, it is not
possible
937
for us to examine its contents on the question of quantum of
compensation. It is for the appropriate legislature to see
if it can revise some of its unjust provisions which are
repugnant to all notions of justice and are of an illusory
nature. The courts’ hands are tied by the provisions of
article 31(4) and that which has been declared by the Con-
stitution in clear terms not to be justiciable, cannot be
made justiciable in an indirect manner by holding that the
same subjectmatter which is expressly barred is contained
implicitly in some other entry and therefore open to exa-
mination. None of these provisions, however, fetter the
power of the court to inquire into any other matters the
cognizance of which is not expressly taken away by the
provisions of clause (4) and articles 31-A and 31-B.
Therefore, the material point for determination is whether
the acquisition of the estates is for any-public purpose and
if it be not so, the law can certainly be held to be uncon-
stitutional. Mr. Das contended, and in my opinion rightly,
that jurisdiction to acquire private property by legislation
can only be exercised for a public purpose. It may be the
purpose of the Union, or the purpose of the State or any
other public purpose. Private property cannot be acquired
for a private purpose. ‘the right to legislate under entry
36 postulates the existence of a public purpose and the
contention is that there was no public purpose behind the
Act. The learned Judges of the High Court negatived this
contention on the ground that the question whether there was
a public purpose in support of the acquisition of the es-
tates had been by implication decided by the Constituent
Assembly and therefore the Court could not go into this
matter. Shearer J. said as follows ;–
“We are in my opinion, estopped from saying that the acqui-
sition of estates and tenures is not an acquisition for such
a purpose. That it is, has been decided by the Constituent
Assembly itself.”
121
938
This decision was reached in view of the provisions of
clauses (4) and (6) of article 31 which were interpreted to
mean that the Constituent Assembly gave their express ap-
proval to this legislation. Reuben J. observed as follows
:–
“From article 31, clause (2), it is clear that the
Constituent Assembly considered two requirements as essen-
tial for compulsory acquisition, namely a public purpose and
provision for compensation. The protection which the
Constituent Assembly gave under clauses (4)and (6) was
confined to the latter requirement. Evidently, therefore,
the Constituent Assembly thought that protection was not
required under the other head, that is to say, the Constitu-
ent Assembly regarded the nationalization of land as itself
constituting a public purpose.
I would, therefore, hold that there is a public purpose
for the impugned Act within the meaning of clause (2) of
article 31.”
Das J. said as follows :–
“There is, I think, clear indication in the Constitution
of India itself that the expression ‘public purpose’ is to
be understood in a wide and comprehensive sense. Further-
more, there is indication that the Constituent Assembly,
representing the people of India which made the Constitu-
tion, was itself aware of the existence of legislation of
the nature of impugned Act. This is clear from clause (4) of
article 31. As a matter of fact, the Land Reforms Bill was
pending at the commencement of the ‘Constitution ………
If the legislation then pending was not for a public pur-
pose, it was, indeed, surprising that the Constituent Assem-
bly tried to save such legislation by means of the provi-
sions of clause (4) of article 31. One may, I think, say
that there was an implied declaration by the Constituent
Assembly that such legislation was for a public purpose and
such declaration will be given deference by the courts until
it is shown to involve an impossibility.
939
For the reasons given above, I hold that the impugned
Act does not fail for want of a public purpose ”
Learned counsel challenged this view of the High Court
and contended that article 31(4) of the Constitution is no
answer on this point and that the Act was bad as it was
silent on the question as to why the zamindaris were being
acquired; that it only provided for the interception of
rents which instead of being realized by the zamindars would
go into the coffers of the Government without any benefit
being derived by the tenants; that private property could
not be acquired for merely augmenting the revenues of the
State; and that the only purpose that could be gathered from
this Act was the ruination of a large class of persons
without any corresponding benefit to any section of the
community. It is said that there are 13,35,000 land-owners
and tenure-holders in Bihar and if an average family be
taken to consist of four persons, five and a half million
people will be ruined by this legislation, while the ryots
will not benefit in any manner because all the lands except-
ing the waste lands sought to be transferred are in the
possession and cultivation of the ryots and no part of the
rent realisable from them is being commuted for their bene-
fit. It is pointed out that the waste lands were sufficient
to meet the requirements of villagers for grazing cattle and
for pasture and that in effect the acquisition of the es-
tates was for the purpose of creating one machine-ridden and
red-tapist super-landlord by depriving a substantial portion
of the public of their means of livelihood.
The learned counsel proceeded to say that nationaliza-
tion of land may be the policy of the party in power but
this is not a public purpose which involves benefit to the
community. Reference in this connection was made to the
decision in Harnabai Pramjee Petit v. Secretary of State for
India(1), where it was observed that the phrase “public
purpose” whatever it may
(1)(1915) 42 I.A. 44.
940
mean, must include a purpose, that is, an object or aim, in
which the general interest of the community as opposed to
the particular interest of individuals is directly and
vitally concerned. The impugned Act, it was contended, did
not fall within this definition of “public purpose”. Refer-
ence was also made to Vol. II of Cooley’s Constitutional
Limitations, at page 744, wherein it is said as follows:–
“The purpose must be public, and must have reference to
the needs or convenience of the public, and no reason of
general public policy will be sufficient to validate other
transfers when they concern existing vested rights.”
Finally, it was urged that there was nothing definite or
tangible in the Act or in the views of the legislatures
which gave any indication of the public purpose for which
the estates were being acquired and all that could be gath-
ered was that the legislature did not know its own mind at
all and on a vague notion of some future policy directed the
acquisition of the estates.
In my opinion, it will not serve any useful purpose to
examine each and every argument that was addressed to us by
the learned counsel. There can be no manner of doubt that
acquisition of private property by legislation under entries
33, 36 and 42 can only be made either for purposes of the
Union or for purposes of the State or for a public purpose
and that it is unnecessary to state in express terms in the
statute itself the precise purpose for which property is
being taken, provided from the whole tenor and intendment of
the Act it could be gathered that the property was being
acquired either for purposes of the State or for purposes of
the public and that the intention was to benefit the commu-
nity at large. It may be conceded that the present statute
does not disclose the legislature’s mind as to what it would
ultimately do after the estates are vested in the State
Government. Perhaps the State Government has not yet made up
its mind how and for what purposes the lands and the tenures
acquired will be utilized. The statute
941
provides in section 34 for the establishment of a land
commission whose function it will be to advise the Govern-
ment as to its agrarian policy. Be that as it may, it seems
to me that in spite of the criticism levelled against the
Act by the learned counsel, it cannot be said that the Act
would fall because it fails to postulate a public purpose.
The Act is intituled “The Bihar Land Reforms Act, 1950”. The
preamble of the Constitution says that India has been con-
stituted into a Sovereign Democratic Republic to secure to
all its citizens justice, social, economic and political.
Article 39 of the Directive Principles of State Policy
states as follows :-
“The State shall, in particular, direct its policy
towards securing that the ownership and control of the
material resources of the community are so distributed as
best to subserve the common good; and that the operation of
the economic system does not result in the concentration of
wealth and means of production to the common detriment.”
Now it is obvious that concentration of big blocks of
land in the hands of a few individuals is contrary to the
principle on which the Constitution of India is based. The
purpose of the acquisition contemplated by the impugned Act
therefore is to do away with the concentration of big blocks
of land and means of production in the hands of a few indi-
viduals and to so distribute the ownership and control of
the material resources which come in the hands of the State
as to subserve the common good as best as possible. In
other words, shortly put, the purpose behind the Act is to
bring about a reform in the land distribution system of
Bihar for the general benefit of the community as advised.
The legislature is the best judge of what is good for the
community, by whose suffrage it comes into existence and it
is not possible for this Court to say that there was no
public purpose behind the acquisition contemplated by the
impugned statute. The purpose of the statute certainly is in
accordance with the letter and spirit of the Constitution of
India. It is fallacious to contend that the object of the
Act is
942
to ruin five and a half million people in Bihar. All lands
in khas possession of all these persons have not been made
the subject-matter of acquisition. Their homesteads, their
mineral wealth except mines not in operation have not been
seriously touched by the provisions of the Act. Various
other exemptions have also been made in their favour in the
Act, apart from the provisions as to compensation which in
the case of small zamindaris can by no means be said to be
of an illusory character. It is difficult to hold in the
present day conditions of the world that measures adopted
for the welfare of the community and sought to be achieved
by process of legislation so far as the carrying out of the
policy of nationalization of land is concerned can fall on
the ground of want of public purpose. The phrase “public
purpose” has to be construed according to the spirit of the
times in which particular legislation is enacted and so
construed, the acquisition of the estates has to be held to
have been made for a public purpose
These observations, however, have no application to the
acquisition of arrears of rent. On the face of the stat-
ute, acquisition of fifty per cent. of these arrears was
for the private purpose of the zemindars and the other fifty
per cent. was either for supplementing the revenues of the
State or for securing means for payment of compensation to
the zemindars. The purpose is to discharge the obligation
of the acquirer to pay the price. The same observations
apply to clause 23 (f) of the statute. That provision has
been made for the purpose of negativing partially the provi-
sions of the Act regarding payment of compensation. Clause
(4)of article 31 affords no protection against the invalidi-
ty of these clauses.
The learned Attorney-General contended that the acqui-
sition of arrears was an acquisition of choses in action and
that the compensation paid for it was fifty per cent. of the
amount of arrears. I regret I am unable to accept this
suggestion. It is a well accepted
943
proposition of law that property of individuals cannot be
appropriated by the State -under the power of compulsory
acquisition for the mere purpose of adding to the revenues
of the State. “The principle of compulsory acquisition of
property,” says Cooley (in Vol. II at p. 113, Constitutional
Limitations) “is founded on the superior claims of the whole
community over an individual citizen but is applicable only
in those cases where private property is wanted for public
use, or demanded by the public welfare and that no instance
is known in which it has been taken for the mere purpose of
raising a revenue by sale or otherwise and the exercise of
such a power is utterly destructive of individual right.
Taking money under the right of eminent domain, when ‘it
must be compensated in money afterwards is nothing more or
less than a forced loan. Money or that which in ordinary use
passes as such and which the Government may reach by taxa-
tion, and also rights in action which can only be available
when made to produce money, cannot be taken under this
power.
Willis in his Constitutional Law, at page 816, offers
the same opinion. Nichols on “Eminent Domain” (Vol. 1, at
page 97) has expressed a contrary opinion and reference has
been made to the decision in Cincinnati v. Louisville etc.,
R. Co. C). An examination of this case, however, does not
disclose that any such proposition was stated therein. It
was held in that case that a Bill to restrain the enforce-
ment of a State statute regulating fire insurance rights was
a valid law in the State of Kansas. It was not necessary to
decide in this case whether under the compulsory acquisition
power the State has the power to acquire choses in action or
money, but it cannot be seriously disputed that such an
acquisition amounts to a forced loan and that the desired
result can be more appositely obtained in exercise of the
police power of the State than of the power of eminent
domain or compulsory acquisition of property and that com-
pensation in such a ease is the same amount of money
(1)223 U.S. 390.
944
that is being taken and in the case of a chose in action the
amount of money that it would produce. In this situation it
cannot be held that fifty per cent. of the outstanding
arrears was compensation in any sense of that expression for
this acquisition. The true position is that the State took
over all the arrears and decided to refund fifty per cent.
of them and forfeit the rest. The validity of this acquisi-
tion has to be decided independently of the acquisition of
the estates. It has no connection with land reform or with
any public purpose. It stands on the same footing as other
debts due to zamindars or their other movable properties,
which it was not the object of the Act to acquire. As al-
ready stated, the only purpose to support this acquisition
is to raise revenue to pay compensation to some of the
zamindars whose estates are being taken. This purpose does
not fall within any definition, however wide, of the phrase
“public purpose” and the law therefore to this extent is
unconstitutional.
One or two illustrations of the public purpose involved
in this provision will bring out its true character. In
Appeal No. 299 of 1951, the arrears of Darbhanga Raj on
26th September, 1950, was a sum of Rs. 30,81,967. Half of
this amount is payable to the Raj and the other half stands
forfeited. In the case or Raja P.C. LaI (Appeal No. 330 of
1951), the rents due were Rs. 10,26,103, and in Appeal No.
339 of 1951, the amount is Rs. 9,52,937.
Next it was contended that the impugned Act is a fraud
on the Constitution and therefore void. It was said that
the Act, while pretending to comply with the Constitution,
evades and invades it; that the Act merely pretends to
comply with the Constitution when it says that it provides
for payment of compensation but in effect it has produced a
scheme for non-payment of compensation by shift and contri-
vance. Reference was made to certain provisions of the Act
of a confiscatory nature, already noticed in this judgment.
Section 9 was mentioned under which mines in the course of
development and fetching no income yet
945
vest in the State without payment Of compensation. No com-
pensation has been made payable in respect of forests or
trees which were not fetching any income at the date of
vesting. In a nutshell, it was contended that the object of
the Act was to acquire properties of the zemindars by pay-
ment of compensation (so-called) out of the moneys belonging
to the zemindars themselves and that in some cases they had
not only to give up their estates for nothing but would have
to pay something, in addition, to the State, if the princi-
ples specified in the Act were to apply. It was pointed out
in the case of the Maharaja of Darbhanga that his zemindari
would be acquired by the State Government without paying
anything but that the Maharaja would have to pay out of his
own money six lakhs to the Government. In Case No. 330 of
1951 (Raja P.C. Lall), it was said that Government would get
the zemindari free, while in Case iNTo. 339 of 1951 the
State will get the zemindari and two and half lakhs out of
the arrears, while in Case No. 331 of 1951, (Chota Nagpur
appeal) the zemindari will be acquired on payment of a small
sum of Rs. 14,000 only. Nothing will be payable to the
zamindars out of the public exchequer. Attention was drawn
to the observations of Shearer J. in the following passage
:-
“The legislature, it is clear, are optimistic enough to
hope that this reform may conceivably be effected without
raising any great loan. The conclusion, to my mind, is
irresistible that the intention is to take over the great
estates in the province, paying no compensation or the most
inadequate compensation, and out of the considerable profits
which are likely to be derived from them, to take over, in
course of time, the remaining estates and tenures. In other
words, a comparatively small minority belonging to this
particular class are to be expropriated without compensation
or with the most inadequate compensation in order that, when
the great majority are expropriated, they receive compensa-
tion which will not be inadequate and may, quite possibly,
in many cases, be more then adequate”
122
946
Mr. Das vehemently contended that the statute was a
fraud on republican Constitution which promised to deprive
no one of his property without payment of compensation;that
it pretended to make elaborate provisions for paying it but
that by shift and contrivance it has provided for the eva-
sion of its payment. Reference was made to a passage in
Moran Proprietary Ltd. v. Dy. Commissioner of Taxation for
New South Wales (1), which is in these terms :-
“Cases may be imagined in which a purported exercise of
the power to grant financial assistance under section 96
would be merely colourable. Under the guise or pretence of
assisting a State with money, the real substance and purpose
of the Act might simply be to effect discrimination in
regard to taxation. Such an Act might well be ultra vires
the Commonwealth Parliament. Their Lordships are using
the language of caution because such a case may never arise,
and also because it is their usual practice in a case deal-
ing with constitutional matters to decide no more than their
duty requires. They will add only that, in the view they
take of the matter, some of the legislative
expedients–objected to as ultra vires by Evatt J. in his
forcible dissenting judgment may well be colourable, and
such acts are not receiving the approval of their
Lordships.”
It was urged that a statute could be declared to be a
fraud on the Constitution on the same principles ,that are
applicable to cases of corporations or of executive bodies,
whenever they act in excess or in abuse of their statutory
powers. Reliance was placed in this connection on the
observations of Abbott C.J. in Fox v. Bishop of Chester (2),
which are in these terms :–
“Our judgment is founded upon the language of the Stat-
ute 31 Eliz. c. 6, and the well-known principle of law, that
the provisions of an Act of Parliament shall not be evaded
by shift or contrivance,”
(1) [1940] A.C. 838, at p. 858.
(2)107 E.R. 520 at p. 527.
947
In Fox v. Bishop of Chester(1), it was said that there
may be fraud on the law, an insult roan Act of Parliament,
though in the language and text of the law no such fraud may
have been mentioned. In Westminsyter Corporation v. London &
North Western Railway(2), it was observed: –
“It is well settled that a public body invested with
statutory powers such as those conferred upon the corpora-
tion must take care not to exceed or abuse its powers. It
must keep within the limits of the authority committed to
it. It must act in good faith. And it must act reasonably.
The last proposition is involved in the second, if not in
the first.”
In Maharaja Luchmeswar Singh v. Chairman of the Darbhan-
ga Municipality (3), it was pointed out that the offer and
acceptance of one rupee was a colourable attempt to obtain a
title under the Land Acquisition Act without paying for the
land. In Alexander v. Brame(4), it was observed that if it
had appeared that sufficient ground existed for holding that
the deed in question was a device on the part of Mr. Brame
for the purpose of evading and eluding the statute, by
keeping seemingly and colourably clear of 1t, while meaning
substantially to infringe it, a view might have been taken
favourable to the appellants.
All these principles are well-settled. But the question
is whether they have any application to the present case.
It is by no means easy to impute a dishonest motive to the
legislature of a State and hold that it acted main fide and
maliciously in passing the Bihar Land Reforms Act or that it
perpetrated a fraud on the Constitution by enacting this
law. It may be that some of the provisions of the Act may
operate harshly on certain persons or a few of the zamindars
and may be bad if they are in excess of the legislative
power of the Bihar Legislature but from that circumstance
it-does not follow that the-whole enactment is a fraud on
the Constitution. From the premises that the estates of
half a dozen zemindars may be expropriated
(1)6 E.R. 581 (3) 17 I.A. 90.
(2) [1905] A.C. 426 at p. 430. (4) 44 E.R. 205.
948
without payment of compensation, one cannot jump to the
conclusion that the whole of the enactment is a fraud on the
Constitution or that all the provisions aS to payment of
compensation are illusory. At best they are illusory only
in the case of some only of the large body of persons af-
fected by it.
Section 23 (f), however, in my opinion, is a colourable
piece of legislation. It has been enacted under power con-
ferred by legislative entry 42 of List III.It is well-set-
tled that Parliament with limited powers cannot do indirect-
ly what it cannot do directly. (Vide South Australia v. The
Commonwealth(1) and Madden v. Nelson & Port Sheppard R.W.
Co.(2). In Deputy Federal Commissioner of Taxation (N.
S.W.) v.W.R. Moran Proprietary Ltd. (3), it, was observed
as follows :–
“Where the law-making authority is of a limited or quali-
fied character, obviously it may be necessary to examine
with some strictness the substance of the legislation lot
the purpose of determining what it is that the legislature
is really doing. In such cases the court is not to be over
persuaded by the appearance of the challenged
legislation …… In that case, this court applied the
well known principle that in relation to constitutional
prohibitions binding a legislature,that legislature cannot
disobey the prohibition merely by employing an indirect
method of achieving exactly the same result ……… The
same issue may be whether legislation which at first sight
appears to conform to constitutional requirements is colour-
able or disguised. In such cases the court may have to look
behind names, forms and appearances to determine whether or
not the legislation is colourable or disguised.”
The provision herein impeached has not been arrived at
by laying down any principles of paying compensation but in
truth, is designed to deprive a number of people of their
property without payment of compensation. The State legis-
lature is authorised to pass an Act in the interests of
persons deprived of
(1) 65 C.L.R. 373. (3) 61 C.L.R. 735 at p. 793.
(2) [1899] A.C. 626.
949
property under entry 42. They could not be permitted under
that power to pass a law that operates to the detriment of
those persons and the object of which provision is to de-
prive them of the right of compensation to a certain extent.
In this connection it is now convenient to examine the
contention of the learned Attorney-General as to the inter-
pretation of legislative head entry 42 of List III. He
contended that under this head it was open to the Parliament
or the State Legislature to make a law laying down the
principles which may result in non-payment of compensation
or which may result in not paying any compensation whatsoev-
er. I cannot possibly assent to any such construction of
this entry The entry reads thus :–
“Principles on which compensation for property acquired
or requisitioned for purposes of the Union or of a State or
for any other public purpose is to be determined, and the
form and manner in which-such compensation is to be given.”
This head of legislation seems to have been expressly
mentioned in the Concurrent List not only in view of the
accepted principle of law that in cases of compulsory acqui-
sition of property compensation has to be made, but also in
view of the clear and mandatory provisions of article 31(2)
which require that a law authorising the taking or acquisi-
tion of property will be void if it does not provide for
payment of compensation for the property acquired or does
not either fix the amount of compensation or specify the
principles on which and the manner in which the compensation
is to be determined and given. The power of legislation in
entry 42 is for enacting the principles of determining such
compensation and for paying it. The principles to be enact-
ed are for determining such compensation and for paying it.
The principles to be enacted are for determining the equiva-
lent price of the property taken away. It may be that the
determination of the equivalent may be ‘left for ascertain-
ment on the basis of certain uniform rules;
950
for instance, it may be laid down that the principles lot
determining compensation will be the rental basis or the
market value of the property etc. But it is difficult to
imagine that there can be any principles for nonpayment of
compensation or for negativing the payment of compensation.
No principles are required to be stated for non-payment of
compensation. A simple statement that no compensation will
be paid is quite enough to attain the object. I know of no
principles for determination of compensation which result in
its nonpayment except in the Act under notice. All legisla-
tive heads have to be reasonably construed and the power
given under entry 42 is a positive power given to bring
about the result of payment of compensation and not non-
payment of the same. The key words in the entry are “compen-
sation” and “given”. Anything that is unrelated to compen-
sation or the giving of it cannot be justified by legisla-
tion under entry 42. Reference was made in this connection
to the United Provinces v. Atiqa Begum (1) in which it was
held that the descriptive words under the legislative,head ‘
‘collection of rents” are wide enough to permit legislation
in respect of remission of rents and that under item 22. of
the Government of India Act, 1935, the legislative head
“forests” include the power to legislate with respect not
only to afforestation but also to disafforestation and that
the legislative head “fisheries” would include the power to
legislate on the prohibition of fishing altogether. In my
opinion, these analogies have no application to the con-
struction of the language employed in entry 42. These en-
tries are not in pari materia to entry 42. Perhaps a more
analogous case on the point is the decision in AttorneyGen-
eral for Ontario v. Attorney-General for the Dominion (2)
The question there was whether the legislative head “Regula-
tion of Trade and Commerce” included the power to abolish it
also. Their Lordships of the Privy Council made the
following observations which appear at page 363 of the
report :–
(1) [1940] F.C.R. 110 at p. 135. (2) [1896] A.C. 348.
951
“A power to regulate assumes the conservation of the
thing which is to be made the subject of regulation. In
that view, their Lordships are unable to regard the prohibi-
tive enactments of the Canadian statute as regulations of
trade and commerce …. there is marked distinction be-
tween the prohibition or prevention of a trade and the
regulation or governance of it.”
An entry concerning payment of compensation in no sense
includes legislative power of non-payment of compensation.
The whole purpose of this head of legislation is to provide
payment of compensation and not the confiscation of proper-
ty.
The provision that four per cent. to twelve and a half
per cent. has to be deducted out of the net income on ac-
count of costs of works for the benefit of raiyats etc. has
no relation to real facts. Even the earlier provision in
clause (d) that costs of management have to be deducted up
to twenty per cent. has in its entirety no real relation to
actual state of affairs. As already pointed out, it is
partially of a confiscatory character in sufficient number
of cases. The deduction under clause (f) from the gross
income is merely a deduction of an artificial character, the
whole object being to inflate the deductions and thus bring
about non-payment of compensation. Such legislation, in
my opinion, is not permitted by entry 42 of List III. Sup-
pose, for instance, instead of a twelve and a half per cent.
it declared that a deduction of seventy per cent. be made on
that account. Could it be said by any reasonable person
that such a piece of legislation was legislation on princi-
ples of determining compensation or of making payment of
compensation, This provision, therefore, in my opinion has
been inserted in the Act as a colourable exercise of legis-
lative power under entry 42 and is unconstitutional on that
ground. The power has not been exercised under any other
legislative head authorizing the State legislature to pass
such a law. Legislation ostensibly under one or other of
the powers conferred by the Constitution but in truth and
fact not falling within the content of that
952
power is merely colourably constitutional but is really not
so. (Vide Quebec v. Queen Insurance Co. (D; Russell v. The
Queen(2).] Reference in this connection may also be made to
the decision of the Privy Council in Madden v. Nelson & Fort
Sheppard R.W. Co. (3). This clause therefore is unconstitu-
tional legislation made colourably valid under exercise of
legislative power under entry 42 of List II.
It was contended by Mr. Das that if some provisions in
the Act are ultra vires, the statute as a whole must be
pronounced to be ultra vires and that it could not be pre-
sumed that the legislature intended to pass it in what may
prove to be a truncated form. The real question to decide
in all such cases is whether what remains is so inextricably
bound up with the part declared invalid that what remains
cannot independently survive, or, as it has sometimes been
put, whether on a fair review of the whole matter it can be
assumed that the legislature would have enacted at all that
which survives without enacting the part that is ultra
vires. Looking at the Act as a whole, it seems to me that
the offending provisions of the Act are not so inextricably
bound up with the part that is valid as to hit or kill the
remainder also. In this case a presumption cannot be drawn
that the legislature would not have enacted the Act leaving
out the two or three provisions which have to be declared to
be invalid.
Mr. Das also raised a minor point that the Bihar. Act
was unenforceable. Reference was made to section 32(2) of
the Act which runs as follows :–
“The amount of compensation so payable in terms of a
compensation Assessment-roll as finally published shall be
paid in cash or in bonds or partly in cash and partly in
bonds. The bonds shall be either negotiable or non-negotia-
ble and non-transferable and be payable in forty equal in-
stalments to the person named therein and shall carry inter-
est at two and a half per centum per annum with effect from
the date of issue,”
(1) (1878) 3 App. Cas. 1090. (3) [1899] A.C. 626,
(1) 7 (1882) App. Can. 841.
953
It was contended that as no date has been mentioned for
payment of compensation and no interval has been stated
between the instalments mentioned therein and it has not
been mentioned how much would be payable in cash and how
much in bonds, the Act could not be enforced. Section 43 of
the Act empowers the State Government to make rules for
carrying out the purposes of the Act. Clause (p) is in
these terms :–
“The proportion in which compensation shall be payable
in cash and in bonds and the manner of payment of such
compensation under sub-sections (2) and (3) of section 32.”
It seems clear that the Act has made sufficient provi-
sion for enforcing its provisions if section 32(2) is read
with the provisions contained in section 43 and it cannot be
said that the Act is unenforceable for this reason.
The last point urged by M. Das was that section 32 (2) of
the Act was void as in it legislative functions had been
abdicated by the legislature in favour of the executive. A
two-fold attack was levelled against this provision. First-
ly, it was said that the Constitution having in entry 42 of
List III of the Seventh Schedule vested authority in the
legislature to make laws on the question of the principles
as to the payment of compensation and the manner and form of
its payment, in other words, it having trusted these matters
to the care, judgment and wisdom of the legislature, it had
no power to delegate these matters to the executive. Second-
ly, it was contended that section 32 (2) delegated essential
legislative power to the executive which it was incompetent
to do. Reference was made to the opinion of this Court in
Special Reference No. 1 of 1950.
The matters alleged to have been delegated are these :–
1. The determination of the proportion of the cash
payment to the payment by giving bonds, negotiable or non-
negotiable.
123
954
2. The determination of the period of redemption of
these bonds.
3. The period of interval between the several instal-
ments.
The section enacts that the compensation payable shall
be paid in cash or in bonds or partly in cash and partly in
bonds. It therefore determines the principle that the pay-
ment of compensation will be in these two forms. It further
enacts that bonds shall be either negotiable or non-negotia-
ble and non-transferable. It therefore also determines the
nature of the bonds that would be issued. It further enacts
that the payment, if made in bonds, will be paid in forty
equal instalments. It is obvious that the time of redemp-
tion of the bonds will be co-terminous with the period of
the instalments. It has further enacted that the bonds will
carry interest at the rate of two and a half per cent. What
has been left to the executive is the question of the deter-
mination of the proportion in which compensation is to be
paid in cash or in bonds and the fixation of the interval of
the instalments. It seems to me that the delegation to this
extent is permissible in view of the decision of this Court
in The State of Bombay v. Narottamdas Jethabai (1) and the
decision of their Lordships of the Privy Council in Queen v.
Burah (2). The legislature applied its mind to the question
of the method and manner of payment of compensation. It
settled its policy and the broad principles. It gave the
State Government the power to determine matters of detail
after having settled vital matters of policy. It cannot be
said that the legislature did not apply its mind to the
subjectmatter of the legislation and did not lay down a
policy. The proportion in which compensation was payable in
cash or in bonds or whether the whole of it was to be paid
in cash is a matter which only the State Government could
fix and similarly, the interval of instalments and the
period of redeemability of the bonds were also matters of
detail which the executive could
(1) [1951] S.C.R. 51. (2) (1877) 5 I.A. 178,
955
more appositely determine in exercise of its rule-making
power. It cannot be said in this case that any essential
legislative power has been delegated to the executive or
that the legislature did not discharge the trust which the
Constitution had reposed in it. If the rule-making authori-
ty abuses its power or makes any attempt to make the payment
illusory, the expropriated proprietor will not be without a
remedy.
For the reasons given above, I am of the opinion that
section 32(2) of the Act cannot be held bad on the ground
that it is a piece of unregulated delegation of legislative
power.
Mr. Das’s contention in Cases Nos. 319, 327, 330 and 332
of 1951 and in the other cases in which he appeared were the
same.
Mr. Choudhury appearing in Cases Nos. 309 and 328 of
1951 raised a large number of points, some of which are
covered by the arguments of Mr. P.R. Das, which I have
discussed already. The rest seem to me to be unsubstantial
but it is necessary to notice a few of them upon which great
stress was laid by the learned counsel. Mr. Choudhury
contended that the field of legislation on the question of
principles of determination of compensation and the mode and
manner of payment of such compensation was already occupied
by the Land Acquisition Act which was an existing law of
Parliament and, therefore, the State Legislature could not
enter on this field and legislate on the principles of
payment of compensation. This argument really has no force,
because the provisions as to assessment of compensation
enacted in the Land Acquisition Act only apply to acquisi-
tions that are made by notification under that Act. Its
provisions have no application to acquisitions made under
either local or central laws unless they are specifically
made applicable by the provisions of these statutes.
Another point put forward by him, that articles 31-A and
31-B of the Constitution cannot affect pending cases
cannot be seriously entertained because retrospectivity is
writ large on the face of those
956
articles. Similarly, I cannot but regard as unsubstantial
his contention that transference of estates of zamindars
to the State under the provisions of a statute requires
registration. The only other point seriously pressed by him
is that the Bihar Legislature had no power to issue bonds
without complying with the procedure laid down in article
293 of the Constitution. It is enough to state with regard
to this point that the stage for issuing bonds has not
arrived as yet. When the State legislature issues bonds
which are unenforceable or which it is not competent to
issue, the contention can possibly be raised.
Mr. Chakravarty who appeared in three cases, Nos. 326,
337, and 344 of 1951, urged that as regards trust proper-
ties, the Bihar legislature had no power to acquire them
without payment of full compensation as certain educational
and charitable institutions would thereby be seriously
affected. He was, however, unable to point out how the Bihar
Legislature had no power to acquire trust properties.
Mr. Raghav Saran who appeared in Cases Nos. 310, 311 and
329of 1951, raised a novel point that the Act not being
reasonable and just, the Supreme Court had jurisdiction to
declare it void on that ground. He was unable to support
his argument on any reasonable basis. The constitutionality
of a statute passed by a competent legislature cannot be
challenged on the ground that the law made is not reasonable
or just.
Counsel who appeared in Cases Nos. 807, 313, 815, 320,
321, 822 and-331 and Petition No, 612 of 1951 merely adopted
the points urged by Mr. P.R. Das.
The result is that the provisions of the Bihar Land
Reforms Act contained in sections 4 (b) and 23 (f) are held
not constitutional. The rest of the Act is good. The ap-
peals are therefore allowed except to the extent indicated
above. A writ of mandamus will issue to the State Government
not to give effect to the two provisions mentioned above and
held unconstitutional.
957
Petition No. 612 of 1951 under article 32 is dismissed as it
is not maintainable; no infringement of any fundamental
right has been alleged therein. There was no appearance for
the respondents in Cases Nos. 18 of 1950 and 299 of 1951 and
no opposition to the appeals being allowed. They are accord-
ingly allowed. I will make no order as to costs in any of
these appeals and petition.
MUKHERJEA J.–I had the advantage of going carefully
through the judgment of my learned brother Mahajan J. and I
concur entirely in the conclusions arrived at by him. In my
opinion, the Bihar Land Reforms Act of 1950 is not unconsti-
tutional, with the exception of the provisions contained in
section 4 (b) and 23(f) of the Act and these provisions
alone must be held to be void and inoperative.
As regards section 23(f) of the Bihar Land Reforms Act,
my learned brother has based his decision on the ground that
the provision of this clause constitutes a fraud on the
Constitution, and although in enacting the provision, the
legislature purported to exercise its powers under entry
42 of the Legislative List III in Schedule VII of the Con-
stitution,. in reality it is a clourable exercise of that
power under which a thing has been done which is not
contemplated by that entry at all and lies outside its
ambit. I agree with the line of reasoning adopted by my
learned brother in this connection and there is nothing
further which I can usefully add.
As regards section 4 (b)it has been held by my learned
brother that the provision of this clause is unconstitution-
al as it does not disclose any public purpose at all. The
requirement of public purpose is implicit in compulsory
acquisition of property by the State or, what is called, the
exercise of its power of eminent domain. This condition is
implied in the provision of article 31 (2) of the Constitu-
tion and although the enactment in the present case fulfills
the requirements of clause (3) of article 31 and as
958
such attracts the operation of clause (4) of that article,
my learned brother has taken the view that the bar created
by clause (4) is confined to the question of compensation
only and does not extend to the existence or necessity of a
public purpose which, though implicit in, has not been
expressly provided for by clause (2)of the article. For my
part I would be prepared to assume that clause (4)of article
31 relates to everything that is provided for in clause (2)
either in express terms or even impliedly and consequently
the question of the existence of a public purpose does not
come within the purview of our enquiry in the present case.
Even then I would hold that the same reasons, which have
weighed with my learned brother in declaring section 23 (f)
of the impugned Act to be unconstitutional, apply with
equal, if not greater, force to section 4 (b) of the Act and
I have no hesitation in agreeing with him as regards his
decision on the constitutionality of this provision of the
Act though I would prefer to adopt a different line of
reasoning in support of the same.
Section 4 (b) of the Bihar Land Reforms Act lays down,
as one of the results of the publication of a notification
under section 3 (1)of the Act that “all arrears of
rents ………. and all cesses together with interest, if
any, due thereon for any period prior to the date of vesting
which were recoverable in respect of the estate or tenure by
the proprietor or tenureholder and the recovery of which was
not barred by any law of limitation shall vest in and be
recoverable by the State”. The explanation attached to the
clause further provides that for purposes of the clause the
expression “arrears of rent” shall include arrears in re-
spect of which suits were pending on the, date of vest-
ing or in respect of which decrees were obtained before
that date together with costs allowed by such decrees.
Under section 24 of the Act, 50% of these arrears of rent
are directed to be added to the amount of compensation money
payable lot the estate or interest calculated in accordance
with the provisions of the Act.
959
The arrears of rent whether merged in decrees or not,
which were due to the landlord for a period anterior to the
date of notification under section 3(1) of the Act, were
undoubtedly the property of the landlord, irrespective of
his interest in the estate or tenure which is the subject-
matter of acquisition. Such arrears could not vest in the
State as a normal result of acquisition of any estate or
interest therein, and it is conceded by the learned
Attorney-General that article 31-A of the Constitution has
no application so far as these arrears of rent are con-
cerned. The arrears of rent, therefore, are the subject-
matter of separate and indipendent acquisition under the
Bihar Land Reforms Act, if the word “acquisition” can at all
be appropriate to cases of this description.
It cannot be disputed that in every Government there is
inherent authority to appropriate the property of the
citizens for the necessities of the State and constitutional
provisions do not confer this power though they generally
surround it with safeguards. The restraints invariably are
that when private property is taken, a pecuniary compensa-
tion must be paid(1). Thus eminent domain is an attribute
of sovereign power supposed to be tempered by a principle of
natural law which connects its exercise with a duty of
compensation
Possibly under the impression that the sacredness of
private property should not be confided to the uncertain
virtues of the party in power for the time being, the Con-
stitution-makers of our country have declared it as one of
the fundamental rights that no property shall be taken
possession of or acquired for public purpose unless the law
directing its appropriation makes provision for compensation
in the manner laid down in article 31 (2). Clause (4) of
article 31 does not do away with the obligation to pay
compensation; it merely lays down that laws which are re-
ferred to in clause (3) of the article would be immune from
judicial scrutiny on the ground of inadequacy of the
(1)Vide Cooley on Constitutional Limitations, Vol. II, p,
1110
(2)Vide Encyclopaedia of Social Science, Vol. V, p. 493.
960
amount of compensation or the impropriety of the principle
for assessing the same as provided for in the enactment. The
clause presupposes however that the enactment is the result
of a valid exercise of a legislative power conferred on the
legislature by the appropriate entries in the Legislative
Lists and if the legislature acts outside these entries or,
under the pretence of acting within them, does something
which is in flat contradiction with its contents, clause (4)
of article 31 could not be invoked to afford any protection
to such legislation.
Clause (4) (b) of the impugned Act read with the provi-
sion of section 24 of the same, empowers the State Govern-
ment to appropriate all the arrears of rent due to a land-
lord at a particular time and the only obligation it casts
on the Government in this respect is to allow 50% of the
amount thus appropriated as solatium for the so-called
acquisition. On the face of it the legislative provision
purports to have been made in exercise of the powers con-
ferred on the State legislature under entry 30 of List II
and entry 42 of List III of Schedule VII of the Constitu-
tion. In my opinion, this is a mere device or pretence and
the real object which the legislation intended to accomplish
is to deprive a man of his money which is not ordinarily a
subject-matter of acquisition, in exercise of what are known
as powers of eminent domain by the State, without giving him
anything in exchange; and under the guise of acting under
entry 42 of List III, the legislature has in truth and
substance evaded and nullified its provisions altogether.
The general principles, which distinguish the powers of
eminent domain from other powers of the State under which
the sacrifice of the proprietary interest of a citizen could
be demanded or imposed, are fairly well-known. As has been
observed by Cooley in his Constitutional Limitations “every
species of property which the public needs may require and
which the Government cannot lawfully appropriate under any
other right, is subject to be seized and
961
appropriated under the right of eminent domain (1). Money as
such and also rights in action are ordinarily excluded from
this List by American jurists and for good reasons(2). There
could be no possible necessity for taking either of them
under the power of eminent domain. Money in the hands of a
citizen can be reached by the exercise of the power of
taxation, it may be confiscated as a penalty under judicial
order and we can even conceive of cases where the State
seizes or confiscates money belonging to or in the hands of
a citizen under the exercise of its ‘police’ powers on the
ground that such fund may be used for unlawful purposes to
the detriment of the interest of the community. But, as
Cooley has pointed out (3), taking money under the right
of eminent domain when it must be compensated by money
afterwards could be nothing more or less than a forced loan
and it is difficult to say that it comes under the head of
acquisition or requisitioning of property as described in
entry 36 of List II and is embraced within its ordinary
connotation.
It is said by the learned Attorney-General that the
subject matter of acquisition in the present case is. not
money but choses in action. It seems to me that there is no
difference in principle between them because a chose in
action can be available to the acquiring authority only when
it is made to produce money; Otherwise it is useless alto-
gether (3).
Assuming however that entry 36 of List II is wide enough
to include acquisition of money or a right of action, I have
no hesitation in holding that in providing for compensation
in respect of such acquisition the legislature has made a
colourable use of entry 42 of List III and has thereby
defeated the purpose of that entry altogether. Entry 42 of
List III speaks of “principles on which compensation for
property acquired or requisitioned for the purposes of the
Union or of a State or any other public purpose is to be
(1) See Cooley on Constitutional Limitations. Vol. II, p.
1113.
(2) Cooley, Vol. 11, p. 1118; Willis on Constitutional law,
p 816.
(3) Vide Cooley on Constitutional Limitations, Vol. 11, p.
1118, F.N.
124
962
determined, and the form and the manner in which such com-
pensation is to be given”. This is a description of legis-
lative head and I agree with the learned Attorney-General
that in deciding the competency of the legislation under
this entry, we are not concerned with the justice or propri-
ety of the principles upon which the assessment of compensa-
tion is to be made under a particular legislation nor are we
concerned with the justice or otherwise of the form or
manner in which such compensation is to be given. I do not,
however, agree with the learned Attorney-General for the
reasons already given by my learned brother in his judgment
that legislation under this head need not provide for any
compensation at all and that a legislative provision which
declares that no compensation is to be given comes within
the ambit of this legislative head. Such construction is
repelled by the very language of the entry which speaks of
giving compensation and not of denying or witholding it.
Stripped of all disguise, the net result of the impugned
provision is that it would be open to the State Government
to appropriate to itself half of the arrears of rent due to
the landlord prior to the date of the acquisition without
giving him any compensation whatsoever. Taking of the whole
and returning a half means nothing more or less than taking
half without any return and this is naked confiscation, no
matter in whatever specious form it may be clothed or dis-
guised. The impugned provision, therefore, in reality does
not lay down any principle for determining the compensation
to be paid /or acquiring the arrears of rent, nor does it
say anything relating to the form of payment, though appar-
ently it purports to determine both. This, in my opinion,
is a fraud on the Constitution and makes the legislation,
which is a colourable one, void and inoperative. The
learned Attorney-General has contended that it is beyond the
competency of the Court to enter into a question of bona
fides or mala fides of the legislature. In a sense this is
true. If the legislature is omnipotent, the motives, which
impel it to enact a particular law, are absolutely irrele-
vant; and
963
on the other hand, if it tacks competence the question of
motives does not at all arise. But when a legislature has a
limited or qualified power and has got to act within a
sphere circumscribed by legislative entries. the question,
whether in purporting to act under these entries, it has, in
substance, gone beyond them and has done certain things
which cannot be accomplished within the scope of these
entries, is really a question affecting the competency of
the legislature. In such cases, although the legislation
purports to have been enacted under a particular entry, if
it is really outside it, it would be void (1). It has been
suggested in course of the argument on behalf of the State
that in the present case the Government in the exercise of
its powers of acquisition could acquire the arrears of rent
and as the arrears were still unrealised, it was quite
legitimate and proper for the Government to deduct half of
the gross amount as consideration for the trouble and ex-
pense that it would have to undergo in the matter of realis-
ing these arrears. This would mean that what the legisla-
ture intended is simply to enable the Government to help the
zamindars in realising the arrears of rent and as a return
for the help which it is to render, the Government is given
the right to retain half of the arrears that were actually
due. This could not possibly have been the real intention
of the legislature and I do not think that there is any item
in the long legislative lists framed by the Constitution
which empowers the legislature to interfere with the legal
rights of the landlord in this manner apart from special
circumstances like indebtedness or otherwise and impose upon
him an onerous obligation to which he is not a consenting
party. A legislation of this character is a complete novel-
ty, the like of which has seldom been witnessed before. The
result is that I concur in the order which has been made by
my learned brother Mahajan J. in this case and I allow the
appeals subject to the two modifications indicated above.
There would be no order as to costs.
(1) See Lefroy on Canadian Constitution. pp. 79-80.
964
DAS J.–The proceedings out of which these appeals have
arisen were initiated by different proprietors of estates in
Bihar challenging the constitutional validity of the Bihar
Land Reforms Act, 1950 (Bihar Act XXX of 1950) which will
hereafter in this judgment be referred to as “The Act”.
On January 26, 1950, when our Constitution came into
force, the Bill which eventually became the Act was pending
before the Legislature of the State of Bihar. After the Bill
had been passed by the State Legislature, it was reserved
for the consideration of the President. On September 11,
1950, that Bill received the assent of the President and
became the Act. The provisions of the Act have been analysed
and summarised in the judgment just delivered by Mahajan J.
and it is not necessary for me to burden this judgment by
recapitulating the same. On September 25, 1950, the text of
the Act was published in the Official Gazette with a notifi-
cation under section 1 (3) dated September 24, 1951), bring-
ing the Act into operation. A notification under section :3
of the Act dated September 25, 1950 vesting the estates of
certain named proprietors was published in the Official
Gazette on the next day. This notification having been
published in the Official Gazette, some of the proprietors
affected thereby instituted suits in the Subordinate Courts
in Bihar after giving the requisite notice under section 80
of the Code of Civil Procedure and prayed for a declaration
that the Act was unconstitutional and void and that their
title to the properties remained unaffected. Some of the
other proprietors filed applications in the High Court at
Patna under article 226 of the Constitution praying for the
issue of appropriate writs, directions or orders. The State
of Bihar filed its written statements in the suits which
were transferred to the High Court for disposal in exercise
of its extraordinary Original Civil Jurisdiction, The suits
and the applications were heard together. As the issues
involved grave questions of interpretation of the Constitu-
tion, the suits and applications were placed before a Spe-
cial Bench
965
of the Patna High Court and were disposed of on March 12,
1951. All the learned Judges, for one reason or another,
repelled all the main contentions of the proprietors but
held that the Act was unconstitutional in that it denied to
the proprietors equal protection of the laws guaranteed by
article 14 of the Constitution. The High Court rejected the
plea of the State that article 31 (4) of the Constitution by
reason of the words “notwithstanding anything in this Con-
stitution” excluded article 14 at least in its application
to the alleged inequality of compensation. Article 31 (4) is
in these terms :-
“If any Bill pending at the commencement of this Consti-
tution in the Legislature of a State has, after it has been
passed by such Legislature, been reserved for the considera-
tion 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).”
The State of Bihar obtained leave of the Patna High
Court under article 132 (1) of the Constitution to appeal to
this Court and preferred these appeals before us.
It may be mentioned here that the States of Uttar Pra-
desh and Madhya Pradesh also passed legislation for the
abolition of zamindaries in their respective States and the
validity of those legislations was also contested by the
proprietors affected thereby. The respective High Courts of
those States, however, upheld the validity of the respective
State legislations and the aggrieved proprietors came up to
this Court either on appeal or on substantive application
under article 32. It was at that stage that the Constituent
Assembly passed the Constitution (First Amendment) Act,
1951. Sections4 and 5 of the Act which are material for our
purpose are as follows :-
Insertion of new 4. After article 31 of the Constitution
article 3I-A. the following article shall be inserted,
and shall be deemed always to have been inserted, namely :–
966
31-A. (1)Notwithstanding anything in the fore-
saving of laws going provisions of this Part, no law
providing for ac- providlng for the acquisition by the
quisition of estates, State of any estate or of any rights
etc. therein or for the extinguishment or
modification of any such rights shall be deemed to be void
on the ground that it is inconsistent with, or takes away or
abridges any of the rights conferred by any provisions of
this Part:
Provided that where such law is a law made by the Legis-
lature of a State, the provisions of this article shall not
apply thereto unless such law, having been reserved for the
consideration of the President, has received his assent.
(2) In this article,–
(a) the expression “estate” shall, in relation to any
local area, have the same meaning as that expression or its
local equivalent has in the existing law relating to land
tenures in force in that area, and shall also include any
jagir, inam or muafi or other similar grant;
(b) the expression “rights”, in relation to an estate,
shall include any rights vesting in a proprietor, sub-pro-
prietor, under-proprietor, tenure-holder or other interme-
diary and any rights or privileges in respect of land reve-
nue.
5. After article 31-A of the
constitution as inserted by
section 4, the following arti
cle shall be inserted namely :-
Insertion of new article 3I-B,
31-B. Without prejudice to the
Validation of generality of the provisions con-
certain Acts and tained in article 31-A, none of the
Regulations
Acts and Regulations specified in the
Ninth Schedule or any of the provisions thereof shall be
deemed to be void, or ever to have become void, on the
ground that such Act, Regulation or provision is inconsist-
ent with, or takes away or abridges any of the rights con-
ferred by, any provisions of this Part,
967
and notwithstanding any judgment, decree or order of any
court or tribunal to the contrary each of the said Acts and
Regulations shall, subject to the power of any competent
legislature to repeal or amend it, continue in force.”
A new Schedule called the Ninth Schedule specifying
thirteen several Acts and Regulations of which the Bihar
Land Reforms Act, 1950. was the first was added to the
Constitution. The legal validity of the Constitution (First
Amendment) Act, 1951, has been recently upheld by this Court
and all Courts must give effect to the two new articles
which are now substantive parts of our Constitution. Arti-
cle 31-A relates back to the date of the Constitution and
article 31-B to the respective dates of the Acts and Regula-
tions specified in the Ninth Schedule. It has not been
disputed that the provisions of the above two newly added
articles_ have to be taken into consideration in disposing
of these appeals.
Learned counsel appearing for the respondents accept
the position that as a result of the constitutional amend-
ments the impugned Act has been removed from the opera-
tion of the provisions of Part III of the Constitution
including article 14 and that the respondents cannot, there-
fore, complain of the breach of the equal protection of the
laws under article 14 which was the only ground on which the
respondents succeeded in the High Court. Learned counsel,
however, maintain that although they cannot now challenge
the constitutionality of the Act on the ground that it
contravenes or is inconsistent with or takes away or
abridges any of the rights conferred by any of the provi-
sions of Part III of the Constitution; it is, nevertheless,
open to them to call the Act into question on other grounds
founded on other parts of the Constitution or on general
principles of law. Accordingly Mr. P. R. Das formulates the
following five principal grounds of attack against the Act,
namely:
A, On a proper interpretation of articles 245 and 246
read with entry 36 in List II and entry 42 in
968
List III the Bihar Legislature had no power to enact the
said Act inasmuch as it makes no provision for the payment
of just compensation for the proposed acquisition of the
zamindaries and tenures.
B. Even if the Court does not accept the correctness of
the arguments based on entry 36 in List II and entry 42 in
List III and holds the respondents barred from going into
the question of compensation by reason of articles 31(4),
31-A and 31-B the respondents are still entitled to chal-
lenge the Act on the ground that the proposed acquisition is
not for a public purpose.
C. The Act constitutes a fraud on the Constitution.
that is to say, while it purports to be in conformity with
the Constitution it in fact, constitutes a defiance of it.
D. The Act is unenforceable in that section 32(2)
provides for payment of compensation in 40 equal instalments
without specifying the period of interval between the in-
stalments.
E. The Act delegated essential legislative functions to
the executive Government.
The heads of objections thus formulated by Mr. P.R.
Das apparently look formidable and it is necessary, there-
fore, to consider with close attention the arguments ad-
vanced by him in support of each of them.
Re Ground A: That article 31 (‘2) imposes upon a law for
the compulsory acquisition of private property the obliga-
tion to provide for compensation and that such obligation
is, therefore, a provision of article 31 (2) is not chal-
lenged. Nor is it claimed, in view of articles 31 (4), 31-A
and 31-B, that it is still open to the respondents to call
in question the validity of the impugned Act on the ground
that it contravenes or is inconsistent with or takes away or
abridges the provision for compensation made in article 31
(2). What is urged is that the obligation to provide for
compensation is not a provision to be found exclusively in
article a 1 (2) but that it is also provided for in other
parts of the Constitution and
969
that, in so far as such obligation is found provided else-
where, the impugned Act can well be challenged on the ground
that it contravenes or is inconsistent with or takes away or
abridges the provisions of those other parts of the Consti-
tution, for that ground of challenge has not been taken away
by articles 31 (4), 31-A and 31-B, by reason of the delimit-
ing words used therein. The argument is developed in the
following way. The State’s power to acquire private property
is, in essence, a power to compel the owner to sell his
property when the public interest requires it. Authority
for this proposition is to be found in Blackstone’s Commen-
tary (Broom’s Edn.) p. 165 and in Cooley’s Constitutional
Limitations, 8th Edn., Vol. II, p. 1201, Footnote (8).
Indeed, in some of the English statutes for compulsory
acquisition of lands and hereditaments (e.g., 5 & 6 Vic. C.
94 and 8 & 9 Vic. C. 18) the word “purchase” was used to
denote acquisition. As there can be no sale without a
price, there can be no compulsory acquisition of private
property without a provision for payment of just compensa-
tion, i.e., its equivalent value in money. That the obliga-
tion to pay just compensation for compulsory acquisition of
private property is a principle of natural equity recognised
by all temperate and civilized governments, that the right
to compensation is an incident to the exercise of the power
of eminent domain and that the one is so inseparably con-
nected with the other that they may be said to exist, not as
separate and distinct principles but, as parts of one and
the same principle are well-established by a series of
decisions of the American courts quoted by Harlan J. in
Chicago, Burlington and Quincy Railroad Company v.
Chicago(1). In England Lord Dunedin in Attorney-General v.
De Keyser’s Royal Hotel Ltd.(2), described the obligation to
pay compensation as “a necessary concomitant to taking”. It
follows, therefore, that the obligation to pay compensation
is inseparable from and is implicit in the power of acquisi-
tion. This obli-
(1) 166 U.S. 216; 4r L. Ed. 979, (2) [1920]
A.C. 508.
970
gation flows from the mere use of the word ,’acquisition” in
entry 36 in List II, as in entry 33 in List I. That word, by
itself, according to Mr. P.R. Das, connotes a compound
concept, namely, the concept of a power of taking on just
terms and confines the very legislative competency under
those entries within the limits of that compound concept.
If, however, the word “acquisition” in entry 36 in List II
and entry 33 in List I does not by itself imply the obliga-
tion to pay just compensation, then, urges Mr. P.R. Das in
the alternative, the words “subject to the provisions of
entry 42 of List III” occurring at the end of entry 36 in
List II certainly brings in that obligation. On a plain
reading of entry 36 in List II the power to make law with
respect to matters specified therein is “subject to”, that
is to say, “conditional upon” the exercise of legislative
power under entry 42 in List III.Those concluding words, Mr.
P.R. Das says, import the obligation to provide for compen-
sation as provided in entry 42 in List Iii into entry 36 in
List II and thereby enlarge the content of the last men-
tioned entry so as to make it a legislative head comprising
the compound concept referred to above. The third alterna-
tive position is that if the word “acquisition” in entry 36
in List II does not, by itself, imply the obligation to
provide for. compensation and if the words “subject to the
provisions of entry 42 of List III” do not import that
obligation as stated above, entry 42 in List Iii should,
nevertheless, be construed as conferring a power coupled
with a duty, so that if the law-making power under entry 33
in List I or entry 36 in List II is at all exercised, the
lawmaking power under entry 42 in List III must, on the
principle laid down by the House of Lords in Julius v.
Lord Bishop of Oxford(1) and adopted by this Court in
Chief Controlling Revenue Authority v. Maharashtra Sugar
Mills Ltd.(2), also be exercised. It is urged that the
Bihar Legislature having purported to exercise its power to
make a law for compulsory acquisition of property under
entry-36 in
(1) L.R. 5 App. Cas. 214. (2) [1950] S.C.R.
971
List II but not having made any law laying down any princi-
ple for determining what may, in the eye of the law, be
regarded as just compensation at all, the Act is ultra vires
and void. The arguments thus developed by Mr. P.R. Das
undoubtedly have the merit of attractive ingenuity and
apparent cogency and certainly call for very careful consid-
eration,
To cut at the root of the above argument the learned
Attorney-General appearing for the appellant State contends
that the impugned Act is a law made with respect to matters
mentioned in entry 18 in List II and not under entry 36 in
List II. The contention is that it is essentially a legisla-
tion for land reforms and alteration of land tenures. It is
pointed out that the Act eliminates the interests of all
zemindars and intermediate tenure-holders so that the State
and the actual tiller of the soil may be brought into direct
relationship. Incidental to this primary object is the
acquisition of the various interests in the land. Reference
is made to the cases of The United Provinces v. Mst. Atiqa
Begum and Others(1), Thakur Jagannath Baksh Singh v. The
United Provinces(2) and Megh Raj and Another v. Allah Rakhia
and Others(s) in support of the proposition that each entry
in the list, which is a category or head of the subject-
matter of legislation, must be construed as widely as possi-
ble so as to inelude all ancillary matters. This line of
reasoning found favour with Shearer J. but was rejected by
Reuben J. and S.K. Das J. There is no doubt that “land” in
entry 18 in List II has been construed in a very wide way
but if “land” or “land tenures” in that entry is held to
cover acquisition of land also, then entry 36 in List II
will have to be held as wholly redundant, so far as acquis-
tion of land is concerned, a conclusion to which I am not
prepared tO assent. In my opinion, to give a meaning and
content to each of the two legislative heads under entry 18
and entry 36 in List II the former should be read as a
legislative
(1) [1940] F.C.R. IIO at p. 134- (3) [1947]
F.C.R. 77.
(2) [1946] F.C.R. III at p. 119.
972
category or head comprising land and land tenures and all
matters connected therewith other than acquisition of
land which should be read as covered by entry 36 in List II.
Further, the impugned Act purports to acquire all arrears of
rent and a law for acquisition of the arrears of rent cannot
possibly be said to be a law with respect to matters speci-
fied in entry 18 in List II for it cannot be supposed to be
a law relating to the collection of rent within the meaning
of that entry. On this point I find myself in agreement
with Reuben J. and S.K. Das J. and I cannot accept the
arguments of the learned Attorney-General to the contrary.
Therefore, the arguments of Mr. P.R. Das founded on entry 36
in List II and entry 42 in List III cannot be rejected in
limine but have to be considered and I proceed to do so
immediately.
That the obligation to pay compensation is concomitant
to, that is to say, accompanies, the power of compulsory
taking of private property by the State cannot be disputed.
The first important question is whether this obligation is
implicit in the term “acquisition” as used in entry 36 in
List II, or in other words whether this obligation is to be
inferred simply from the use of that term as a part of the
content or meaning thereof. In Attorney-General v. De Key-
ser’s Royal Hotel Limited (supra) Lord Dunedin pointed out
that the power of acquisition was. in its origin, derived
from the prerogative of the Crown and that the payment of
compensation was originally a matter of negotiation and
bargain between the Crown and the subject, but came to be
determined later on by statutes of local application and
finally by statutes of general application and that, there-
fore, the Crown, which is an assenting party to every stat-
ute, must, in effect, be regarded as having consented to the
exercise of its prerogative being made subject to payment of
compensation regulated by statutes. In that case, however,
it was not disputed in arguments that the taking itself was
a matter of prerogative right. In the United States of
America the power of eminent domain was not originally, in
terms, conferred on
973
the United States by any provision of the Federal Constitu-
tion, but this power has always been recognised to exist
as an inherent attribute of the sovereignty of the State.
So far as the United States are concerned, the Fifth Amend-
ment by providing that private property shall not be taken
for public use without just compensation gave a constitu-
tional recognition to the right of eminent domain and, to
protect the subjects, imposed a limitation on the exercise
of that right by the State. This indicates that the power
of acquisition and the obligation to pay compensation are
two separate and distinct concepts although the second
follows the first. If the obligation to pay compensation
were an integral part of the concept or the meaning of
“taking” itself, then this part of the Fifth Amendment was
wholly unnecessary. It follows, therefore, that the expres-
sion “acquisition” does not, by itself and without more,
import any obligation to pay compensation. It is urged by
Mr. P.R. Das that entry 42 in List III really implements the
obligation implicit in entry 36 in List II and the two
entries are complementary to each other. If this obligation
were not implicit in entry 33 in List II then where else, it
is asked, is the obligation to pay compensation to be found
? The obvious answer is that obligation is to be found in
article 31 (2) in Part III of our Constitution. The
obligation to pay compensation may be introduced as a part
of the legislative power itself, in which case it becomes a
composite power, namely, a power to make law with respect to
acquisition circumscribed by the obligation to provide for
compensation. Thus in section 31 (XXXI) of the Commonwealth
of Australia Constitution Act the acquisition of property on
just terms has been made a head or category of legislative
power of the Commonwealth Parliament. There the power is
not to make a law for the acquisition of property simplicit-
er but is to make a law for the acquisition of property on
just terms which connotes that the legislative power itself
is circumscribed by the necessity for providing just terms.
But there is no overriding
974
necessity of constitutional law that I know of, or that has
been brought to our notice, which requires that the obliga-
tion to pay compensation for the acquisition of property
must be made part and parcel of the very legislative power
to make a law with respect to the compulsory acquisition of
private property. It must depend on the provisions of the
particular constitution under consideration. What do we
find in our Constitution ? We find that under article 246
Parliament has exclusive power to make laws with respect,
inter alia, to matters specified in entry 33 in List I,
namely, “acquisition or requisitioning of property lot the
purposes of the Union, that the State Legislatures have
exclusive power to make laws with respect, inter alia, to
matters specified in entry a6 in List II, namely, the
,acquisition or requisitioning of property except lot the
purposes of the Union subject to the provision of entry 42
of List III” and that both Parliament and the State Legisla-
tures may make laws with respect to matters set forth in
entry 42 in List III, namely, the principles for determining
the compensation and the form and manner of giving such
compensation. This legislative power of Parliament or of
the State Legislatures is, by article 245, made “subject to
the provisions of this Constitution.” One of the provisions
of the Constitution is article 31 (2) under which no proper-
ty can be “taken possession of or acquired for public pur-
poses under any law authorising the taking of such posses-
sion or such acquisition unless the law provides for compen-
sation for the property and either fixes the amount of
compensation or specifies the principles on which, and the
manner in which, the compensation is to. be determined and
given.” The scheme of our Constitution obviously is to
provide the three things separately, namely, the power of
making a law for acquisition of property in article 246 read
with entry 33 in List I and entry 36 in List II, the obliga-
tion of such law to provide for compensation in article
31(2) and the power of making a law laying down the princi-
ples for determining such compensation in article 246 read
with entry 42 in List III.
975
According to this scheme it is not necessary at all to
regard entry a3 in List I and entry 36 in List, II, which
are mere heads of legislative power, as containing within
themselves any obligation to provide for the payment of
compensation. In other words, it is not necessary to treat
the obligation to pay compensation as implicit in or as a
part or parcel of these legislative heads themselves, for it
is separately and expressly provided for in article 31
(2). The well-known maxim expressum facit cessare tacitum
is, indeed, a principle of logic and common sense and not
merely a technical rule of construction (See Broom’s Legal
Maxims, 10th Edn, p. 443 at p. 452). The express provision
in article 31 (2) that a law of acquisition, in order to be
valid, must provide for compensation, will, therefore,
necessarily exclude all suggestion of an implied obligation
to provide for compensation sought to be imported into the
meaning of the word “acquisition” in entry 36 in List II. In
the face of the express provision of article 31 (2) there
remains no room for reading any such implication in the
legislative heads.
Mr. P.R. Das suggests, in the alternative, that if the
obligation to provide for compensation is not implicit in
the word “acquisition” itself as used in entry 36 in List II
that obligation is attracted and made a part and parcel of
that entry by reason of the words “subject to the provisions
of entry 42 of List III”. The last mentioned words are,
however. not to be found in entry 33 in List I and this part
of Mr. P.R. Das’s argument would lead to this anomalous
result that while the obligation to provide for compensation
is made a part of the legislative power under entry 36 in
List II by virtue of its last few words quoted above, no
such obligation is attracted and made part of the legisla-
tive power under entry33 in List I, and that, therefore, in
making a law with respect to acquisition of property under
entry 33 in List I Parliament, unlike the State Legisla-
tures, will not be bound to provide for any compensation at
all. This cannot possibly be the intention of the framers
976
of our Constitution. Further, Mr. P.R. Das reads the words
“subject to” as meaning “conditional upon” the exercise of
the legislative power under entry 42 in List III, that is to
say, conditional upon fulfilling the obligation to provide
for compensation and the form and the manner in which such
compensation is to be given. I agree with S.K. Das J. that
the words “subject to” have not the meaning sought to be
given to them by Mr. P.R. Das but that they mean “but not”
so as to indicate that the scope of entry 36 in List II is
restricted, that is to say, that the subjectmatter of entry
42 in List III is not within the content of entry 36 in List
II. If entry 42 in List III were, by reason of the words
“subject to the provisions of entry 42 of List III” occur-
ring in entry 36 in List II, to be read as having been made
a part of the content of entry 36 in List II then it may
well be argued that, in view of article 246, Parliament will
not be competent to maintain law with respect to princi-
ples on which compensation is to be determined. It is in
order to prevent this argument and out of abundant caution
that the subjectmatter of entry 42 in List III has been
excluded from the content of entry 36 in List II by the
words “subject to” et cetera and Parliament may, therefore,
freely make a law with respect to the matters thus excluded
from entry 36 in List II and set forth as a separate and
independent item in entry 42 in List III. This consideration
was not material in connection with entry 33 in List I which
explains the omission of the words “subject to” et cetera
from that entry.
Mr. P.R. Das finally urges that if the obligation to provide
for compensation is not implicit in the word “acquisition”
in entry 36 in List II and if that obligation is not to be
read into that entry even in view of the words “subject
to ……………. “at the end of it, even then if the
State exercises its power to make a law with respect to
acquisition of property under entry 36 in List II it is the
duty of the State Legislature to make a law also with re-
spect to matters specified in entry 42 in List III on the
principle that as
977
entry 42 in List III confers a power on the Legislature for
the protection of the interest of persons whose property is
compulsorily acquired, such power must. therefore, be re-
garded as coupled with a duty to exercise it. No authority
has been brought to our notice establishing or even suggest-
ing that the principle laid down by the House of Lords in
Julius v. Lord Bishop of Oxford (supra) has been extended to
the exercise of legislative power and I am not prepared to
assent to the proposition. Article 246 does not make it
obligatory for Parliament or the State Legislatures to make
a law under any of the entries in any of the Lists in the
Seventh Schedule. Entry 42 in List III does not, therefore,
impose any duty upon Parliament or the State Legislatures to
make any law for payment of compensation. What requires
Parliament or State Legislatures, when making a law for
compulsory acquisition of private property, to provide for
compensation and either to fix the amount thereof or specify
the principles on which and the-manner in which the compen-
sation is to be determined and given is the provision of
article 31 (2). Entry 42 in List 111 only constitutes a
legislative head under which Parliament or the State Legis-
latures may make a law so as to give effect to the obliga-
tion expressly imposed on them by article 31 (2). In view
of the clear provision of that article it is wholly unneces-
sary to read entry 42 in List III as imposing an implied
duty on the Legislature on the principle referred to in the
House of Lords case.
That the obligation to provide for compensation is not
included in the content of the legislative power under entry
36 in List II, by itself or read with entry 42 in List III,
will be made further clear when we come to consider closely
clauses (4) and (5) of article 31 and article 31-A. Article
31(4) protects a law of the description mentioned therein
against the provisions of article 31(2). It follows, there-
fore, that what is sought to be protected by article 31(4)
is a law for the acquisition or taking possession of proper-
ty which does not, amongst other things, provide for compen-
sation or
978
does not fix the amount or specify the principles on which
and the manner in which the compensation is to be determined
and given, for otherwise there would be no necessity for any
protection. The question at once arises as to whether there
is any legislative entry in List 11 under which a law for
acquisition or taking possession of property without compen-
sation can be made by a State Legislature. To test the
validity of Mr. P.R. Das’s argument and to avoid the compli-
cation arising out of the residuary powers of Parliament
under article 248 and entry 97 of List II I have taken the
case of a law of acquisition made by the legislatures of a
State which also come within article 31 (4). Is there,
then, any entry in List II under which a State Legislature
can make a law for acquisition without compensation or
public purpose ? Obviously there is none, except entry 36 in
List II. If that entry by itself or read with entry 42 in
List III has any implication as suggested, namely, that a
law for acquisition of property-made under entry 36 in List
II without a provision for compensation will be beyond the
legislative competency of the State Legislatures, then
there is no other entry under which such a law can be made
by a State Legislature and there can, therefore, be no point
in making a provision in article 81(4) for protecting,
against article 31(2), a law which, on this hypothesis.
cannot be made at all. Article 81(4) postulates a law which
offends against 31 (2) and so far as the State Legislatures
are concerned there is no entry in List II except entry 36
under which such an offending law may be made by the State
Legislatures. This circumstance unmistakably establishes
that entry 36 in List II, by itself or read with-entry 42 in
List III, has not any such implication as is imputed to it.
Likewise take article 81 (5) (b) (ii) which protects the
provisions of any law which the State may hereafter make for
the promotion of public health or the prevention of danger
to life or property. The law which is thus sought to be
protected must also involve acquisition of property without
any provision for compensation, for otherwise there can be
no occasion or necessity for
979
any protection against article 31 (2). A law of this kind,
in so far as such law provides for acquisition of property,
must necessarily be made by a State Legislature. if at all,
under entry 36 in List II. If Mr. P.R. Das’s contentions
were correct, a law for the promotion of health or the
prevention of danger to life or property involving the
acquisition of property without a provision for compensa-
tion, which is what is sought to be protected from article
31 (2), can never be made, for the obligation to provide for
compensation is, according to him, implicit in entry36 in
List II, by itself or read with entry 42 in List III, and
there is no other entry under which a law may be made by a
State Legislature with respect to acquisition of property.
It is futile to attempt to get over this anomaly by suggest-
ing that clauses (4) and (5) (b) (ii) of article 31 have
been inserted in the Constitution ex abundanti cautela, for,
if Mr. P.R. Das were correct in his submission, no amount of
caution was necessary for protecting a law that, ex hypoth-
esi, cannot be made at all. Similar arguments may as well be
founded on article 31-A, for that article also protects a
law from article 31 (2) which is in Part III of the Consti-
tution. It is suggested that article 31-A postulates a valid
law made by a competent legislature within the ambit of its
legislative powers. If a State Legislature in making a law
for the acquisition of property for a public purpose under
entry 36 in List II must provide for compensation then a law
made conformably with this supposed requirement of that
entry by a State Legislature will require no protection at
all against article 31 (2), and article 31-A must be regard-
ed as meaningless and unnecessary. Surely, that conclusion
is manifestly untenable. In my opinion clauses (4) and
(5)(b) (ii) of article 31 and article 31-A clearly negative
Mr. P.R. Das’s proposition. In my judgment, for the reasons
stated above, the major premise in the arguments advanced
by Mr. P.R. Das under ‘the first head, namely, that the
obligation to pay compensation is implicit in entry 36 in
Lis II by itself or read with entry 42 in List III is un-
sound.
980
The obligation to provide for compensation being, as I hold,
a provision of article 31(2) and not being implicit in or a
part and parcel of the legislative power itself under entry
36 in List II read by itself or in conjunction with entry 42
in List III, the impugned Act cannot, by virtue of articles
31(4), 31-A and 31-B, be called in question on the ground
that it contravenes or is inconsistent with or takes away or
abridges any of the rights conferred by the provisions of
clause (2) of article 31, that is to say, that it does not
provide for compensation.
Assuming that the obligation to pay compensation which
is expressly provided in article 31(2) is also implicit in
entry 36 in List II by itself or read with entry 42 in List
III, the respondents cannot. even then, be permitted to call
in question the validity of the impugned Act on the ground
that it does not provide for compensation, for then they
will be doing exactly what they are forbidden to do by
article 31 (4) and the newly added articles. Article31(4)
and the added articles debar the respondents from question-
ing the validity of the Act on the ground, inter alia, that
it contravenes or is inconsistent with or takes away or
abridges any of the rights conferred by the provisions of
clause (2) of article 31. The emphasis in those articles is
rather on the “provisions” than on the number of the article
or the Part of the Constitution. It is obvious that the real
substance of the matter is that articles 31(4), 31-A and
31-B expressly seek to prevent a challenge to the validity
of the Act based on the ground, inter alia, that it does not
provide for compensation. This obligation to provide for
compensation is no doubt one of the provisions of article 31
(2) but if as contended by Mr. P.R. Das, the self same
provision be found elsewhere in the same Constitution, e.g.,
entry 36 in List II or entry 42 in List III, then that
“provision” must also be regarded as having been covered by
article 31(4) and the two added articles, for otherwise
those articles will be rendered nugatory. In my opinion, if
two constructions are possible, the Court should adopt that
which
981
will implement and discard that which will stultify the
apparent intention of the makers of the Constitution.
Further, it must be borne in mind that article 31 (4) which
applies “notwithstanding anything in this Constitution”,
will, by force of the very words, protect the Act against
even legislative incompetency, if any, arising out of the
alleged noncompliance with the suggested implied provisions,
if any, of entry 36 in List II and entry 42 in List III. In
my judgment the respondents are not, by reason of articles
31(4), 31-A and 31-B, entitled to call the Act in question
on the ground that it does not provide for compensation,
whether the ground is formulated as a breach of article 31
(2) or of the implied provision, if any, of the legislative
heads mentioned above.
It will be noticed that the argument that the Act is
unconstitutional is founded on the assumption that it has
not laid down any principle for determining compensation as
required by entry 42 in List III and that the provision for
compensation is wholly illusory. Chapter V of the Act deals
with assessment of compensation. Shortly put, the scheme is
to start with the gross assets which are taken to be synony-
mous with the gross income and then to make certain deduc-
tions therefrom and to arrive at the net assets. Then the
compensation is to be calculated at a sliding scale of rates
varying from 20 to 3 times of the net income. To the amount
thus determined is to be added a moiety of the accumulated
arrrears of rent etc. and the compensation for the mines and
minerals as determined under section 25. Ex facie, it cannot
be disputed that the Act does prescribe some principles for
determining the compensation payable to the proprietor or
tenure-holder. It is, however, pointed out that the deduc-
tion of 5 to 20 per cent. of the gross assets as and by way
of cost of management is quite arbitrary. It is said that
although it is well known that the percentage of cost of
management in relation to the income of a small estate is
greater than that of a larger estate, yet the Act provides
for deducting 20 percent. of the gross assets in the case of
proprietors
982
of the larger estates but only 5 per cent. in the case of
the smaller estates. Objection is next taken to the deduc-
tion of any amount under the head of works of benefit to
raiyats the and also to the scale of such deduction. These
arguments, to my mind, do not on close scrutiny, amount to
saying that the Act does not lay down any principle for
determining the compensation. The real underlying implica-
tion of these arguments, as I understand them, is that the
principles are not good enough in that they do not produce
fair compensation. I do not think the Court can go into the
policy of the legislation. All that the Court is concerned
with is to see whether any principle has been laid down as
mentioned in entry 42 in List III. It is true that the
percentage of costs of management calculated on the basis of
the income of a big estate is less than that of a smaller
estate, but it is quite clear that the Act has fixed the
scale of deduction under this head and under the head of
works of benefit according to the capacity of the proprietor
or tenureholder to bear it. It is impossible to say that
the provision for deduction for works of benefit to the
raiyats is not supported by any principle. A landlord is
expected to spend money on works of benefit to his raiyats,
e.g., providing tanks and wells, irrigation, charitable
dispensary, schools and so forth and be it said to the
credit of some of the landlords that in practice they do
spend money on this account. Therefore, there is nothing
wrong, when calculating the net income of a landlord, to
deduct something which the’ landlords should and some of
them often do, in practice, spend under this head. I see no
absence of principle in this provision. The rate of deduc-
tion, I have said, has been fixed according to the capacity
of the proprietors or tenure-holders. It has been shown.
and it is not denied that in many cases a calculation of the
net income on the basis of the principles laid down in the
Act operates to reduce the gross income to a very small net
income. To take only one instance, the gross annual income
of the Darbhanga estate is about Rs. 47,85,069, the
deduction
983
allowed by the Act is about Rs. 44.88,585 and the net income
computed according to the principles laid down in the Act
comes to about Rs. 2,96,484 or say Rs. 3 lacs and the com-
pensation payable to the Maharajadhiraj of Darbhanga will
be only rupees 9 lacs. It has also been shown that at least
in one case, e.g., in the case of the Raja of Purnea the
compensation calculated according to the principle laid down
in the Act works out at a deficit figure. The fact that in
one isolated case the calculation may work out in this way,
does not, however, prove that no principle has been laid
down. Indeed, in all other cases the principle laid down in
the Act actually produces compensation, however inadequate
it may be said to be in some cases. If a principle has been
laid down, then the provisions of entry 42 in List III are
amply satisfied and no question of legislative incompetency
can arise. If a principle has been laid down in the Act but
that principle does not in fact produce any compensation in
any rare case or adequate compensation in some cases then
the real complaint should be, not that no principle has been
laid down but, that the principle laid down does not produce
what may be called just compensation. That result may
offend against the provisions of article 31 (2) but certain-
ly not against entry 42 in List III and in view of articles
31 (4), 31-A and 31-B the Act cannot be challenged for non-
compliance with article 31 (2). On the other hand, even if
it is held that no principle has, in fact, been laid down by
the Act, as contended, then that fact not only amounts to a
breach of the provisions of entry 42 in List III but also
constitues a breach of the provisions of article 31 (2)
which clearly and emphatically requires the law to either
fix the compensation or lay down the principles on which and
the manner in which the compensation is to be given and a
breach of this “provision”, call it a provision of article
31(2) or one of entry 42 in List III. cannot. for reasons
already stated, be questioned in view of articles 31(4),
31.A and 31-B. It should also be remembered that article
31(4): by reason of the words “notwithstanding
984
anything in this Constitution” occurring therein will also
protect the Act even against the alleged legislative incom-
petency arising out of the noncompliance with all provisions
of the Constitution relating to the payment of compensation
or the existence of a public purpose including the supposed
requirement of producing actual compensation said to be
implicit in the provisions of entry 42 in List III. In my
judgment, the Act cannot be called in question on the ground
of legislative incompetence of the Bihar Legislature to
enact it under entry 36 in List II or entry 42 in List III.
What I have stated above is sufficient to repel the
first ground of attack levelled against the Act by Mr. P.R.
Das. But before passing on to the second main ground of
attack I think it right to deal with a few subsidiary points
canvassed before us.
It is said that section 3 of the Act, which is its main
operative section, does not contemplate or authorise the
acquisition of arrears of rent at all, for the notification
under that section only refers to the vesting of the estates
or tenures in the State. It is, however, to be noticed that
the consequence of issuing that notification is that the
arrears of rent including all that are mentioned in clause
(b) of section 4 are also to vest in, and be recoverable by,
the State. This vesting of the arrears of rent in the State
necessarily implies the transfer of the rights of the pro-
prietors or tenureholders to the State and this process
must, therefore, amount to the acquisition of that right by
the State. Therefore, in effect, the Act does contemplate
the acquisition of the arrears of rent by the State.
On the authority of a passage in Willis’ Constitutional
Law, p. 816, it is argued that the power of eminent domain
cannot be exercised with respect to money and choses in
action besides certain other unusual forms of property.
This passage is founded on certain earlier decisions of the
American Courts. It is, however, clear from Nichols on
Eminent Domain, Vol. I, p. 99, paragraph 2, and the case of
Cincinnati
985
v. Louisville & N.R. Co.(1) cited therein that the modern
view is that the right of eminent domain can be exercised on
choses in action. In any case, we are t0 consider whether
arrears of rent are “property” in the sense in which that
expression is used in our Constitution and understood in our
law. What are the arrears of rent but rents that have
fallen due but have not been paid ? It is not at all money
in the till of the landlord but it is a debt due by the
tenants. It is, therefore, nothing but an actionable claim
against the tenants which is undoubtedly a species of “pro.
perry” which is assignable. Therefore, it can equally be
acquired by the State as a species of “property. ”
It is finally urged that the Act makes no provision for
payment of compensation for taking this item of property.
It is true that in section 24 the word “compensation”
is used in connection with the taking of the estates or
tenures and also the taking of mines and minerals but not in
connection with the fifty per cent. of the arrears of rent
which are directed to be added to the compensation. But
this provision for adding the fifty per cent. of the arrears
also appears in the chapter headed “Assessment of Compensa-
tion” and, therefore, the fifty per cent. of the arrears is
added in the process of the assessment of the compensation.
Further, why is this fifty per cent. given to the proprie-
tors or tenure-holders at all unless it were for compensa-
tion ? It is pointed out that when the State takes away a
lac of rupees and returns 50,000 rupees, it, in reality,
pays no compensation but by this shift and contrivance only
takes away the other 50,000 rupees for nothing. This argu-
ment sounds plausible at first but is not founded on any
good principle. This argument arises only because a moiety
is paid back, as it were, in the same coin. If compensation
for money were made, say, by giving some land of the value
of a moiety of the money taken, the same argument would not
have been available and all that could be said
(1) 223 U.S. 390, 50 L.Ed. 481. 127
986
would have been that the land so given, not being equivalent
in value to the money compulsorily taken away, could not be
said to be a just compensation. That argument, in view of
articles 31 (4), 31-A and 31-B, would, of course, have been
futile. But I see no difference in principle or law when
compensation for acquisition of arrears is made in money. In
such a case if only a moiety of the amount of arrears is
returned the obvious complaint will be that the return of
50,000 rupees is not fair or adequate compensation for
taking away Rs. 1,00,000 and that complaint may have pre-
vailed had there been no provision like those we have in
articles 31(4), 31-A and 31-B. Apart from this, the argument
completely overlooks the fact that the arrears of rent are
not really cash in the till of the proprietor or tenure-
holder but is only a debt due by the tenants. What is the
market value of this book debt ? This debt will have to be
realised, possibly by suit followed by execution proceedings
involving time and money in costs. Part of it, quite con-
ceivably, may not be realised at all. Therefore, the State
takes the risk of realising or not realising the arrears of
rent but irrespective of the results of its efforts for
their realisation the fifty per cent. of the arrears is in a
lump added to the compensation. This, to my mind, indicates
clearly that compensation is in fact paid for the arrears of
rent and I am not prepared to say that the payment of a
moiety of the book debts as compensation is so illusory as
to amount to nothing, as contended by Mr. P.R. Das. Even if
it be inadequate, the grievance will be, not that no princi-
ple has been laid down in the Act as required by entry 42 in
List III but, that the principle so laid down does not
produce adequate compensation and there is, therefore, a
contravention of the provisions of article 31 (2). That
defect cannot, however, be made a ground of attack in view
of articles 31(4), 31-A and 31-B for reasons explained
above.
Re Ground B: The second point urged by Mr. P.R. Das is
that even if the Court does not accept the argument as to
the necessity for providing for compensation
987
being implicit in entry 36 in List II and entry 42 in List
III and holds that the respondents are, by reason of the
provisions of articles 31 (4), 31-A and 31-B, debarred from
questioning the validity of the Act on the ground that it
does not provide for compensation the respondents are,
nevertheless, entitled to challenge the Act on the ground of
the absence of a public purpose. That the existence of a
public purpose is an essential prerequisite to the exercise
of the power of compulsory acquisition has not been disputed
by the learned Attorney-General. The contention put forward
on behalf of the respondents is that the necessity for the
existence of a public purpose as a condition precedent to
compulsory acquisition of private property is not a “provi-
sion” of article 31 (2) but is a requirement of entry 36 in
List II or entry 42 in List III. The words “for public
purposes” do occur in article31(2) but it is said that there
is a distinction between a “provision” and an assumption. It
is urged that article 31(2) assumes a law authorising the
taking of possession or the acquisition of property for a
public purpose and provides that the property shall not be
taken possession of or acquired even for that public purpose
unless the law also provides for compensation. It is,
therefore, concluded that the only “provision” of article
31 (2) is that the law authorising the taking of possession
or the acquisition of property for a public purpose must
provide for compensation and it is this “provision” only
that cannot be made a ground of attack on the Act by reason
of articles 31 (4), 31-A and 31-B of the Constitution. This
argument has found favour with Reuben J. and S.K. Das J.
The latter learned judge, after referring to a passage in
his own judgment in the earlier case of Sir Kameswar Singh
v. The Province of Bihar (1) concludes as follows :–
“Clause (2), strictly speaking, does not, in express
words, make” public purposes” a condition precedent to
compulsory acquisition but rather assumes that such acquisi-
tion can be for public purposes only; it does so by neces-
sary implication.”
(1) A.I.R. 1950 Pat. 392.
988
The learned Judge then refers to the following passage
in the judgment of my learned brotherMukherjea J. in
Chiranjit Lal Choudhury v. The Union of India & Others
(1):__
“Article 31(2) of the Constitution prescribes a twofold
limit within which such superior right of the State should
be exercised. One limitation imposed upon the acquisition
or taking possession of private property which is implied in
the clause is that such taking away must be for public
purpose. ‘the other condition is that no property can be
taken unless the law which authorises such appropriation
contains a provision for payment of compensation in the
manner laid down in the clause.” ‘
I do not, however, see how the above observations of
Mukherjea J. in any way support the arguments of Mr. P.R.
Das that the existence of a public purpose is not a provi-
sion of article31 (2) but is an inherent condition of any
legislation for compulsory acquisition of private property.
It is significant that Mukherjea J. recognises that article
31(2) “prescribes” a two-fold limit. Surely, a limit which
is “prescribed” by the articles must be a provision thereof.
In any case, what is implied in the clause must, neverthe-
less, be a provision of the clause, for the expression
“provision” is certainly wide enough to include an implied
as well as an express provision. Be that as it may, I am
prepared to go further and say, for reasons I shall present-
ly explain, that the requirement of a public purpose as an
essential prerequisite to compulsory acquisition is, if
anything, essentially a provision of that clause and an
integral part of it.
Article 31 is one of a group of articles included in
Part III of the Constitution under the heading “Fundamental
Rights”. It confers a fundamental right in so far as it
protects private property from State action. Clause (1) of
the article protects the owner from being deprived of his
property save by authority of law. A Close examination of
the language of clause (1)will
(2) [1950] S.C.R. 869.
989
show that this immunity is a limited one and this will at
once be clearly perceived if we convert the negative lan-
guage of clause (1) into positive language. In its positive
form clause (1) will read :-
“Any person may be deprived of his property by authority
of law”.
The only limitation put upon the State action is the
requirement that the authority of law is a prerequisite for
the exercise of its power to deprive a person of his proper-
ty. This confers some protection on the owner in that he
will not be deprived of his property save by authority of
law and this protection is the measure of the fundamental
right. It is to emphasise this immunity from State action
as a fundamental right that the clause has been worded in
negative language. Likewise, clause (9.) is worded in nega-
tive language in order to emphasise the fundamental right
contained therein. The enunciation of this fundamental right
necessarily requires a statement of the ambit and scope of
the State action and to fix the ambit and scope of the State
action it is necessary to specify the limitations on the
State action, for that limitation alone is the measure of
the fundamental right. Clause (2) of the article, in its
positive form, omitting words unnecessary for our present
purpose, will read as follows:–
“Any Property …………………………….may be taken
possession of or acquired for public purposes under any
law authorising the taking of such possession or such
acquisition if the law provides for compensation for the
property taken possession of or
acquired ………………………………….”
Put in the above form, the clause makes it clear at once
and beyond any shadow of doubt that there are three limita-
tions imposed upon the power of the State, namely, (1) that
the taking of possession or acquisition of property must be
for a public purpose, (2) that such taking of possession or
acquisition must be under a law authorising such taking of
possession or acquisition and (8) that the law must provide
for compensation
990
for the property so taken or acquired. These three limita-
tions constitute the protection granted to the owner of the
property and is the measure of his fundamental right under
this clause. Unless these limitations were provisions of the
article, the article would have afforded no immunity at all.
I am, therefore, clearly of opinion that the existence of a
public purpose as a prerequisite to the exercise of the
power of compulsory acquisition is an essential and integral
part of the “provisions” of clause (2). If the requirement
of a public purpose were not a provision of article 31(2),
then it will obviously lead us to the untenable conclusion
that Parliament will be free under its residuary powers
under article 248 and entry 97 of List I of the Seventh
Schedule to make a law for acquiring private property with-
out any public purpose at all and to the still more absurd
result that while Parliament will have to provide for com-
pensation under article 31(2) in a law made by it for acqui-
sition of property for a public purpose it will not have to
make any provision for compensation in a law made for acqui-
sition of property to be made without a public purpose. Such
could never have been the intention of the framers of our
Constitution. The existence of a public purpose as a condi-
tion precedent to the exercise of the power of compulsory
acquisition being then, as I hold, a “provision” of article
31 (2), an infringement of such a provision cannot, under
articles31 (4), 31-A and 3 I-B, be put forward as a ground
for questioning the validity of the Act.
Mr. P.R. Das’s second line of argument on this main head
is that the necessity for the existence of a public purpose
is implicit in entry 36 in List II and that the existence of
a public purpose is also a requirement of entry 42 in List
III which is made a part of entry 36 in List. II by virtue
of the words “subject to” etc., appearing at the end of that
entry and his conclusion is that in the absence of a public
purpose the Bihar Legislature had no legislative competency
under those two entries to enact the impugned Act and that
this ground of attack is still available
991
to him notwithstanding the provisions of articles 31(4),
31-A and 31-B. He does not rely on any other part of the
Constitution as insisting on the existence of a public
purpose as a prerequisite for compulsory acquisition of
private property. Entry 36 covers any purpose except the
purpose of the Union and is not, in terms,limited to
public purpose. Secondly,the argument based on the words
“subject to” etc. at the end of entry 36 in List II which
are supposed to import the provisions of entry 42 in List
III into entry 36 in List II is not well-founded and it
becomes obvious when we look at entry 33 in List I. There
are no words at the end of that entry as “subject to” etc.
and, therefore, the alleged requirement of a public purpose
under entry 42 in List III cannot be said to be incorporated
in entry 33 in List III would, therefore, follow that where-
as under entry36 in List II which is to be read with entry
42 in List III by reason of the words “subject to” etc. in
entry 36 in List II the Legislature of a State can only make
a law for compulsory acquisition of property for a public
purpose, Parliament may, under entry 33 in List I which does
not attract entry 42 in List Iii, make a law for compulsory
acquisition of property without a public purpose. Such a
result could never have been intended by the Constitution.
Besides, turning to entry 42 in List III, I find nothing in
support of Mr. P.R. Das’s contention. The words “acquired or
requisitioned for the purposes of the Union or of a State or
for any other public purpose” in that entry are merely words
descriptive of the preceding word “property”. The matters
comprised in entry 42 in List III, as a legislative head,
are the principles for the determination of compensation and
the form and manner of giving the compensation for property
which is described as having been acquired or requisi-
tioned for the stated purposes. That entry cannot possibly
be regarded as a legislative head for acquisition of
property and much less is the purpose or province of that
entry to lay down any requirement of a public purpose as a
condition precedent for the
992
acquisition of any property. In my opinion entry 42 in List
III is of no assistance to Mr. P.R. Das for this part of his
argument. Further, the reasons for which I have discarded
his arguments as to the obligation to provide for compensa-
tion being implied in entry 36 in List 11 by itself or read
with entry 42 in List III will also apply to this contention
mutatis mutandis and they need not be restated here. To put
it shortly, the provisions of article31(2) which, as I have
explained, require the existence of a public purpose, will
exclude the implication sought to be read into entry 36 in
List 11 and entry 42 in List III. Secondly, what articles
31(4), 31-A and 31-B exclude is a challenge to the Act on
the ground of contravention of the “provision” of clause
(2). If the “provision” of clause (2) of article 31 as to
the necessity for the existence of a public purpose as a
prerequisite to compulsory acquisition of property is also
to be regarded as implicit in those two legislative entries,
surely articles 31 (4), 31-A and 31-B and in particular
article31(4) which contain the words “nothwithstanding
anything in this Constitution” will protect the Act from
such implied provision, for reasons I have already ex-
plained. Mr. P.R. Das’s second main point must accordingly
be rejected as untenable.
Assuming that the necessity for the existence of a
public purpose is not a provision of article 31(2) but is a
provision only of entry 36 in List 11 and/or of entry 42 in
List III and that consequently articles 31 (4), 31-A and
31-B do not preclude the respondents from challenging the
validity of the Act on the ground of the legislative incom-
petency arising out of the absence of a public purpose, the
question still remains whether there is in fact a public
purpose within the meaning of our Constitution to support
the Act. It is to be noted that there is no recital of any
public purpose in the Act itself, but it is conceded that
this circumstance is not fatal to the validity of the Act.
It is, however, urged that this circumstance, nevertheless,
shows that the Legislature had, at the time of the passing
of the Act, no public purpose in its view. It is claimed
993
that, apart from the absence of any such recital, there is
no indication whatever as to the existence of any public
purpose in any of the operative provisions of the Act. It
is not disputed that as a result of this enactment a very
large sum of money now payable by the tenants as and by way
of current rent and arrears of rent to their respective
landlords will be intercepted by the State but it is urged,
on the authority of certain passages in Cooley’s Constitu-
tional Limitations, 8th Edn., Vol. II, p. 1118 (Footnote 1)
and in Professor Willis’ Constitutional Law, p. 817, that
the exercise of the power of taxation and not that of the
power of eminent domain is the legitimate means for swelling
the public revenue. That the Act has no public purpose to
support it is sought to be established by saying that in
Bihar the recorded proprietors are about 13,35,919 in number
and that assuming that there are four persons in a family,
nearly five and a half million people will be ruined as a
result of this legislation, although the actual tillers of
the soil will derive no benefit whatever therefrom, for they
will remain where they are and will have to continue, as
heretofore, to pay their rent, instead of to their present
landlords, to the State which, they will find, is no better
than a ruthless machine unsusceptible to any humane feeling.
The contention is that the public purpose must be something
definite, something tangible and something immediate and
that there must be some indication of its existence in the
Act itself and that the State cannot take private property
to-day and say that it will think of the public purpose at
its leisure. This leads me to a consideration of what is a
public purpose within the meaning of our Constitution.
We have been referred to some American authorities for
ascertaining the meaning and implication of “public use”, an
expression which obviously is of a more limited import than
the expression “public purpose” used in our Constitution.
Apart from this, a perusal of the text books, e.g., Consti-
tutional Law by Professor Willis, p. 817 et seq., will
immediately make it clear
128
994
that the notion as to what is a “public use” is rapidly
changing in America. Formerly “public use” meant a use by
the public. According to the modern view “public use” means
useful to the public. The passage in Cooley’s Constitutional
Limitations, Vol. II, pp. 1139-40 quoted by S.K. Das J. of
the Patna High Court summarises the position thus :–
“No satisfactory definition of the term” public use” has
ever been achieved by the Courts. Two different theories
are presented by the judicial attempts to describe the
subjects to which the expression would apply. One theory of
“public use” limits the application to “employment”–“occu-
pation”. A more liberal and more flexible meaning makes it
synonymous with “public advantage”, “public benefit”. A
little investigation will show that any definition attempted
would exclude some subjects that properly should be included
in, and include some subjects that must be excluded from,
the operation of the words “public use”. As might be ex-
pected, the more limited application of the principle ap-
pears in the earlier cases, and the more liberal application
has been rendered necessary by complex conditions due to
recent developments of civilization and the increasing
density of population. In the very nature of the case,
modern conditions and the increasing inter-dependence of the
different human factors in the progressive complexity of a
community make it necessary for the Government to touch upon
and limit individual activities at more points than former-
ly”.
To the like effect are the following observations to be
found in Corpus Juris, Vol. XX, article 39, at pp. 552 and
553 under the caption “What is a public use” :–
“No general definition of what degrees of public good
will meet the constitutional requirements for a “public use”
can be framed, as it is in every case a question of public
policy. The meaning of the term is flexible and is not
confined to what may constitute a public use at any given
time, but in general it may be said to cover
995
a use affecting the public generally, or any number thereof,
as distinguished from particular individuals. Some Courts
have gone so far in the direction of a liberal construction
as to hold that “public use” is synonymous with “public
benefit”, “public utility”, or “public advantage”, and
to authorise the exercise of the power of eminent domain to
promote such public benefit, etc., especially where the
interests involved are of considerable magnitude, and it
is sought to use the power in order that the natural
resources and advantages of a locality may receive the
fullest development in view of the general welfare”.
The learned author thereupon proceeds to discuss the
more restricted meaning given to that expression. Mr. P.R.
Das has drawn our attention to the decision of the Judicial
Committee in Hamabai Framjee Petit v. Secretary of State for
India(1). It should be borne in mind that the Judicial
Committee in that case had to consider the meaning of the
words “public purposes” occurring in a lease of the 19th
century. Even in 1914 the Judicial Committee did not
think fit to attempt a precise definition of the expression
“public purpose” and was content to quote with approval the
following passage from the judgment of Batchclor J.:-
“General definitions are, I think, rather to be avoided
where the avoidance is possible, and I make no attempt to
define precisely the extent of the phrase ‘public purposes’
in the lease; it is enough to say that, in my opinion, the
phrase, whatever else it may mean, must include a purpose,
that is, an object or aim, in which the general interest of
the community, as opposed ‘to the particular interest of
individuals, is directly and vitally concerned”.
And it is well that no hard and fast definition was laid
down, for the concept of” public purpose” has been rapidly
changing in all countries of the world. The reference in the
above quotation to “the general
(1) (1915) L.R. 42 I.A. 44.
996
interest of the community”, however, clearly indicates that
it is the presence of this element in an object or aim which
transforms such object or aim into a public purpose.
From what I have stated so far it follows that whatever
furthers the general interests of the community as opposed
to the particular interest of the individual must be regard-
ed as a public purpose. With the onward march of civiliza-
tion our notions as to the scope of the general interest of
the community are fast changing and widening with the result
that our Old and narrower notions as to the sanctity of
the private interest of the individual can no longer stem
the forward flowing tide of time and must necessarily give
way to the broader notions of the general interest of the
community. The emphasis is unmistakably shifting from the
individual to the community. This modern trend in the
social and political philosophy is well reflected and given
expression to in our Constitution. Our Constitution, as I
understand it, has not ignored the individual but has endea-
voured to harmonise the individual interest with the para-
mount interest of the community. As I explained in Gopalan’s
case (1) and again in Chiranjit Lal’s case (supra) our
Constitution protects the freedom of the citizen by article
19(I)(a). to (e) and (g) but empowers the State, even while
those freedoms last, to impose reasonable restrictions on
them in ‘the interest of the State or of public order or
morality or of the general public as mentioned in clauses
(2) to (6). Further, the moment even this regulated freedom
of the individual becomes incompatible with and threatens
the freedom of the community the State is given power by
article 21, to deprive the individual of his life and per-
sonal liberty in accordance with procedure established by
law, subject, of course, to the provisions of article 22.
Likewise, our Constitution gives protection to the right of
private property by article 19 (1) (f) not absolutely but
subject to reasonable restrictions to be imposed by law in
the interest of the general public
(1) [1950] S.C.R. 88.
997
under clause (5) and, what is more important as soon as the
interest of the community so requires, the State may, under
article 31, deprive the owner of his property by authority
of law subject to payment of compensation if the deprivation
is by way of acquisition or requisition of the property by
the State. It is thus quite clear that a fresh outlook
which places the general interest of the community above the
interest of the individual pervades our Constitution.
Indeed, what sounded like idealistic slogans only in the
recent past are now enshrined in the glorious preamble to
our Constitution proclaiming the solemn resolve of the
people of this country to secure to all citizens justice,
social, economic and political, and equality of status and
of opportunity. What were regarded only yesterday, so to
say, as fantastic formulae have now been accepted as direc-
tive principles of State policy prominently set out in Part
IV of the Constitution. The ideal We have set before us in
article 38 is to evolve a State which must constantly strive
to promote the welfare of the people by securing and making
as effectively as it may be a social order in which social,
economic and political justice shall inform all the institu-
tions of the national life. Under article 39 the State is
enjoined to direct its policy towards securing, inter alia,
that the ownership and control of the material resources of
the community are so distributed as to subserve the common
good and that the operation of the economic system does not
result in the concentration of wealth and means of produc-
tion to the common detriment. The words “public purposes”
used in article 23 (2) indicate that the Constitution uses
those words in a very large sense. In the neverending race
the law must keep pace with the realities of the social and
political evolution of the country as reflected in the
Constitution. If, therefore, the State is to give effect to
these avowed purposes of our Constitution we must regard as
a public purpose all that will be calculated to promote the
welfare of the people as envisaged in these directive prin-
ciples of State policy whatever else that expression may
mean. In
998
the light of this new outlook what, I ask, is the purpose of
the State in adopting measures for the acquisition of the
zamindaries and the interests of the intermediaries ? Sure-
ly, it is to subserve the common good by bringing the land,
which feeds and sustains the community and also produces
wealth by its forest, mineral and other resources, under
State ownership or control. This State ownership or control
over land is a necessary preliminary step towards the imple-
mentation of the directive principles of State policy and it
cannot but be a public purpose. It cannot be overlooked that
the directive principles set forth in Part IV of Constitu-
tion are not merely the policy of any particular political
party but are intended to be principles fixed by the Consti-
tution for directing the State policy whatever party may
come into power. Further, it must always be borne in mind
that the object of the impugned Act is not to authorise the
stray acquisition of a particular propery for a limited and
narrow public purpose but that its purpose is to bring the
bulk of the land producing wealth under State ownership or
control by the abolition of the system of land tenure which
has been found to be archaic and non-conducive to the gener-
al interest of the community. The Act also sets up a Land
Commission to advise the State Government generally with
regard to the agrarian policy which it may from time to
time follow. It is impossible to say that there is no public
purpose to support the Act. This very Bihar Act was before
the Constituent Assembly when it passed article 31 (4) and
again when it took the trouble of amending the Constitution
for saving this very Act. Would the Constituent Assembly
have thought fit to protect these Acts unless it were con-
vinced that this Act was necessary in the general interest
of the community ? I find myself in agreement with Reuben J.
and S.K. Das J. that these circumstances also clearly indi-
cate that the Constituent Assembly regarded this Act as well
supported by a public purpose. To put a narrow construction
on the expression “public purpose” will, to my mind, be to
999
defeat the general purpose of our Constitution and the
particular and immediate purpose of the recent amendments.
We must not read a measure implementing our mid-twentieth
century Constitution through spectacles tinted with early
nineteenth century notions as to the sanctity or inviolabil-
ity of individual rights. I, therefore, agree with the High
Court that the impugned Act was enacted for a public pur-
pose.
Mr. P.R. Das then puts up a narrow argument. Assuming,
says he, that, there is in the Act a general public purpose
for compulsory acquisition of zamindaries and tenures, there
cannot conceivably be any public purpose in support of the
Act in so far as it authorises the taking of the arrears of
rent or the taking away of 4 to 12 1/2 per cent. of the
gross assets on the specious plea that the landlords must
be supposed to spend that percentage of their gross income
on works of benefit to the rayats of the estates and, there-
fore, that part of the Act is beyond the legislative compe-
tence of the Bihar Legislature. I regard this argument as
unsound for more reasons than one. In the first place the
existence of a public purpose being, as I hold, a provision
of article 31 (2), its absence, if any, in relation to the
arrears of rent cannot, by reason of articles 31 (4), 31-A
and 31-B be made a ground of attack against the Act.Second-
ly, it is an entirely wrong approach to pick out an item
out of a scheme of land reforms and say that item is not
supported by a public purpose. One may just as well say
that there is no public purpose in the acquisition of for-
ests or of mines and particularly of undeveloped mines, for
such acquisition has no bearing on a scheme of agrarian
reforms in that it does not improve or affect the conditions
of the tillers of the surface of the soil. This, I appre-
hend, is not the right way of looking at things. The proper
approach is to take the scheme as a whole and than examine
whether the entire scheme of acquisition is for a public
purpose. Thirdly, I do not regard the deduction of 4 to
121/2 per cent. of the gross assets as acquisition or
confiscation
1000
at all, but I regard it, for reasons stated above, as a part
of a principle laid down by the Act for the purpose of
determining the amount of compensation as required by arti-
cle 31 (2) and entry 42 in List III. Finally, I do not see
why the taking over of the arrears of rent, in the context
of the acquisition of zamindaries, is not for a public
purpose. As I have said, the acquisition of zamindaries and
tenures is a scheme for bringing about agrarian reforms and
ameliorating the conditions of the tenants. The object is,
inter alia, to bring the tillers of the soil in direct
contact with the States so as to free them from the clutches
of rapacious landlords and make them the masters of their
holdings subject to payments of the dues to the State. It
is well-known that the bulk of the tenants are in arrears
with their rents and once the rents fall into arrear the
tenants find it difficult to pay the current rent after
liquidating a part of the arrears so that while they clear
part of the old arrears the current rent falls into arrear.
According to annexure B (2) to-the affidavit of Lakshman
Nidhi affirmed on January 22, 1951, the total amount of
Raiyati rent payable by the various tenants in the different
circles of the Darbhanga Estate alone will exceed rupees
three lacs. It is not quite clear whether all these arrears
are due from the actual rayats in the sense of actual till-
ers of the soil. But leaving out from consideration for the
present purposes the arrears of rent due by the tenure-
holders to their immediate superior tenureholder or to the
zamindar it can safely be taken that the bulk, if not all,
of the actual rayats or tillers of the soil are habitually
and perpetually in arrear with the rent of their hold-
ings on account of financial stringency resulting from
their chronic indebtedness. In these circumstances if the
zamindaries and the tenures only are acquired under the Act
leaving the zamindars and the tenure-holders free to realise
the huge arrears of rent due by the actual cultivating
tenants by legal process it will eventually result in the
sale of the holdings of the actual tenants or, at any rate,
of their right, title and
1001
interest therein and the possible purchase thereof by the
zamindars or tenure-holders themselves at Court sales in
execution of decrees or by private sales forced upon the
tenants. The bulk of the actual tillers of the soil will
then become landless labourers and the entire scheme of land
reforms envisaged in the Act will be rendered wholly nugato-
ry. If the acquisition of the zamindaries and the tenures
is, as I hold, dictated or inspired by the sound public
purpose of ameliorating the economic and political condi-
tions of the actual tenants, the self same public purpose
may well require the acquisition of the arrears of rent so
as to avert the undesirable but inevitable consequences I
have mentioned. The Bihar Legislature obviously thought
that the tenants in arrears will have better treatment and a
more reasonable accommodation, in the matter of the liquida-
tion of the-huge arrears, from the State which will act
uNder the guidance of the Land Commission than from the
expropriated landlords whose sole surviving interest in
their erstwhile tenants will only be to realise as much of
the arrears as they can from the tenants and within the
shortest possible time without any mercy or accommodation,
The same remarks apply to the acquisition of decrees for
arrears of rent. The overriding public purpose of ameliorat-
ing the conditions of the cultivating rayats may well have
induced the Legislature to treat the arrears of rent and the
decrees for rent differently from the other ordinary move-
able properties of the zamindars or tenure-holders, e.g.,
their money in the bank or their jewellery or ornaments
with which the rayats have no concern and to provide for
the acquisition of the arrears and the decrees. In the
premises, the second main ground of attack levelled by
Mr. P.R. Das against the Act must be rejected. I am,
however, free to confess that if I could agree with Mr.
P.R. Das that these provisions of the impugned Act are bad
for want of a public purpose, I am not at all sure that I
would not have found it extremely difficult to resist his
further argument that the entire Act was bad, for it might
1002
not have been very easy to presume that if the Bihar Legis-
lature had known that these provisions of the Act might be
held bad it would nevertheless have passed the other parts
of the Act in that truncated form. The acquisition of the
arrears of rent appears to me to be an integral part of the
scheme and inextricably interwoven with it. Indeed, it may
well have been that the scheme of agrarian reform was not
considered by the Bihar Legislature to be at all capable of
easy implementation by the State without the acquisition of
the arrears of rent. As, however, I have taken the view that
no part of the Act is bad for want of a public purpose, I
need not pursue any further the question of the severability
of the Act or to refer to the judicial decisions relied on
by learned counsel on both sides.
Ground C: Mr. P.R. Das’s third point is that the Act
constitutes a fraud on the Constitution, that is to say,
while it purports to be in conformity with the Constitution,
it, in effect, constitutes a defiance of it. The Act,
according to him, pretends to comply with the constitutional
requirements in that it sets out to lay down certain princi-
ples on which compensation is to be determined and the form
and the manner in which such compensation is to be given
but, in effect, makes out a scheme for non-payment of com-
pensation. The Act, he urges, purports to pay back fifty per
cent. of the arrears of rent as compensation but in reality
confiscates the other fifty per cent. without any compensa-
tion. Further, under the guise of deducting 4 to 121 1/2
per cent of the gross income the State is in reality appro-
priating a large sum under this head. All this, he con-
cludes, is nothing but pretence or a mere shift and contri-
vance for confiscating private property. The argument,
when properly understood, will be found to resolve itself
into an attack on the legislative competency of the Bihar
Legislature to pass this Act. On ultimate analysis it
amounts to nothing more than saying that while pretending to
give compensation the Act does not really give it. It is
the absence of a provision
1003
for just and adequate compensation that makes the Act
bad, because, according to Mr. P.R.Das, the legislative
power under entry 36 in List II and entry 42 in List III
requires the making of such a provision. The failure to
comply with this constitutional condition for the exercise
of legislative power may be overt or it may be covert. When
it is overt, we say the law is obviously bad for non-compli-
ance with the requirements of the Constitution, that is to
say, the law is ultra vires. When, however, the noncompli-
ance is covert, we say that it is a fraud on the Constitu-
tion, the fraud complained of being that the Legislature
pretends to act within its power while in fact it is not so
doing. Therefore, the charge of fraud on the Constitution
is, on ultimate analysis, nothing but a picturesque and
epigrammatic way of expressing the idea of non-compliance
with the terms of the Constitution. Take the case of the
acquisition of the arrears of rent. It is said that the
provision in the Act for the acquisition of arrears of rent
is a fraud on the legislative power given by the Constitu-
tion. I ask myself as to why must it be characterised as a
fraud? I find nothing in the Constitution which says that
the arrears of rent must not be acquired and. therefore,
there is no necessity for any covert attempt to do what is
not prohibited. I have already explained that in a scheme of
land reforms such as is envisaged in the Act the acquisition
of the arrears of rent may properly accompany the acquisi-
tion of the zamindaries and the tenures. Where. then, does
this theory of fraud come in ? The answer must eventually
be that a moiety of arrears are taken away without compensa-
tion. Again, take the case of the acquisition of non-in-
come-yielding properties. Why, I ask, is it called a fraud
on the Constitution to take such property ? Does the Consti-
tution prohibit the acquisition of such property ? Obvious-
ly it does not. Where, then, is the fraud? The answer that
comes to my mind is that it is fraud because the Act pro-
vides for compensation only on the basis of income and,
therefore, properties which are at present non-income-
yielding but which have very rich
1004
potentialities are acquired without any compensation at all.
Similar answer becomes obvious in connection with the
deduction of 4 to 12 1/2 per cent. of the gross assets under
the head “Works of Benefit to the Rayats”. On ultimate
analysis, therefore, the Act is really attacked on the
ground that it fails to do what is required by the Consti-
tution to do, namely, to provide for compensation for the
acquisition of the properties and is, therefore, ultra
rites. This, to my mind, is the same argument as to the
absence of just compensation in a different form and ex-
pressed in a picturesque and attractive language. I have
already dealt with the question of absence of a provision
for just compensation while dealing with Mr. P.R. Das’s
first point and I repeat that the obligation to provide for
compensation is not implicit in entry 36 in List II by
itself or read with entry 42 in List III but is to be found
only in article 31 (2), that under entry 42 in List III the
Act has laid down a principle for determining compensation
and, therefore, there can be no question as to legislative
incompetency for any alleged non-compliance with any sup-
posed requirement said to be implicit in these entries. If
the principles so laid down in the Act do not in any rare
case produce any compensation or do not produce adequate
compensation in some cases, such absence of compensation may
be a contravention of article 31 (2) but in view of arti-
cles 31 (4), 31-A and 31-B and particularly due to the words
“notwithstanding anything in this Constitution” occurring in
article 31 (4) it cannot be made a ground of attack on the
Act, even though such ground is formulated in a different
but attractive language, namely, as a fraud on the Constitu-
tion. Accordingly, this point must also be rejected. I,
however, repeat that ii I took a different view I would
still have the same difficulty as to the inseverability of
the different provisions of the Act as I have hereinbe-
fore indicated.
Re. Ground D: Mr. P.R. Das’s fourth point is that the
Act is unenforceable in that section 32 (2)
1005
provides for compensation in forty equal instalments without
specifying the period of interval between the instalments.
In course of arguments, however, Mr. P. R. Das has thought
fit not to press this point and accordingly it does not
require any refutation.
Re. Ground E: Mr. P.R. Das’s last main point is that the
Act has delegated essential legislative functions to the
Executive Government and is, therefore, invalid. Article
31 (2) requires that the law authorising the taking posses-
sion or the acquisition of land for public purpose should
provide for compensation for the property taken possession
of or acquired and should either fix the amount or specify
the principles on which, and the manner in which the compen-
sation is to be determined and given. Entry 42 in List III
talks of principles on which compensation is to be deter-
mined and the form and the manner in which such compensation
is to be given. The argument is that the Constitution has
left to Parliament or the State Legislature the duty of
specifying the principles on which, and the form and manner
in which the compensation is to be determined and given but
the Bihar Legislature by sections (22)of the Act has simply
provided that the amount of compensation shall be paid in
cash or in bonds or partly in cash and partly in bonds and
that the bonds shall be either negotiable or non-negotiable
and non-transferable and be payable in forty equal instal-
ments and has not laid down any decisive provision but has
left the matter to the State Government to decide. It has,
therefore, failed to discharge the duty which was expressly
left to its knowledge, wisdom and patriotism. Mr. P.R. Das
complains that the Legislature has shirked its responsibili-
ty and delegated this essential legislative power to the
State Government to be exercised under rules made by itself
under its rulemaking power under section 43 (2) (p). The
question of the propriety and legality of the delegation of
legislative power has recently been considered by this Court
in In re The Delhi Laws Act, 1912 etc.(1). If I
(1) [1951] S.C.R. 747.
1006
were to deal with this matter according to my own notions, I
would have dismissed this argument in limine, for here the
Legislature has not abdicated or effaced itself in the sense
I have explained in my opinion in that case. When I look at
the matter on the basis of the principles laid down in that
case by the late Chief Justice and my learned brothers to
which Mr. P.R. Das has referred, I have to overrule his
contention all the same. Here section 32 clearly indicates
that the Legislature has applied its mind to the problem and
it has laid down the principle that the compensation may be
paid in cash or in bonds or partly in cash and partly in
bonds and that ii a payment is to be made either wholly or
partly in bonds, these bonds may be either negotiable or
non-negotiable and non-transferable. Having laid down the
principle, the Legislature has, by a rule made under section
43 (3) (p), left it to the Executive to determine the pro-
portion in which the compensation shall be payable in
cash and-in bonds and the manner of such payment of compen-
sation. These details, it will be observed, depend on
special circumstances, e.g., the extent of the ability, of
Government to pay, the extent of the necessities of the
proprietors and many other considerations, with which the
Executive Government would be more familiar than the Legis-
lature itself. I am unable to accept Mr. P.R. Das’s conten-
tion that this amounts to a delegation of an essential
legislative function within the meaning of the decision of
my learned brothers.
Mr. Sanjiva Chowdhuri has urged that the Land Acquisi-
tion Act, 1894 being continued by the Constitution and that
Act which is a Central Act having been extended by notifica-
tion in 1899 to Ramgarh State for which he appears, the
Central Act must apply to Ramgarh until the notification is
withdrawn and the impugned Act cannot apply for determining
the compensation, for the field is already occupied by the
Central Act of 1894. It may, however, be noticed that the
provision for compensation in that Act
1007
applies only to lands acquired under that Act. It has no
application to lands acquired under other statutes and,
therefore, the provision for compensation of the Land Acqui-
sition Act cannot apply to acquisitions under the Bihar Act
and, therefore,the doctrine of occupied field can have no
application. In my opinion there is no substance in this
contention.
For reasons stated above, I allow these appeals.
CHANDRASEKHARA AIYAR J.–The facts which have given rise
to these cases have been fully set out in the judgment just
now delivered by my learned brother Mahajan J. and need not
be repeated. The conclusions reached by him and Mukherjea
J. have my concurrence. Ordinarily, I would have stopped
with the expression of my agreement, but having regard to
the importance of the question argued and the stakes in-
volved, I desire to add a few words of my own on some of the
points discussed.
Article 31 (1) of our Constitution provides “No person
shall be deprived of his property save by authority of law”.
There are three modes of deprivation–(a) destruction,(b)
acquisition and (c) requisition. Destruction may take place
in the interests of public health or the prevention of
danger to life or property but with this we are not now
concerned. In the case of “acquisition”, there is an element
of permanency, and in the case of “requisition” there is an
element of temporariness. Except for this distinction, both
modes stand on the same footing, as regards the rights of
the State vis-a-vis the rights of the private citizens.
Under the Constitution, when property is requisitioned
or acquired, it may be for a Union purpose or a State pur-
pose, or for any other public purpose. Entry 33 in List I
(Union List) of the Seventh Schedule to the Constitution
speaks of acquisition or requisitioning of property for the
purposes of the Union. When we come to entry 42 of List 111
(Concurrent List), we find these words: “Principles on which
compensation for property acquired or requisitioned for the
purposes
1008
of the Union or of a State or for any other public purpose
is to be determined, and the form and the manner in which
such compensation is to be given.”
From very early times, law has recognized the right of
Government compulsorily to acquire private properties of
individuals for a public purpose and this has come to be
known as the law of eminent domain. But it is a principle of
universal law that the acquisition can only be on payment of
just compensation. Story on the Constitution, Vol. 2, page
534, paragraph 1790, has the following passage in discussing
the concluding clause of the Fifth Amendment of the American
Constitution:
“The concluding clause is that private property shall
not be taken for public use without just compensation. This
is an affirmance of a great doctrine established by the
common law for the protection of private property. It is
founded in natural equity, and is laid down by jurists as a
principle of universal law. Indeed, in a free government,
almost all other rights would become utterly worthless,
if the Government possessed an uncontrollable power over the
private fortune of every citizen. One of the fundamental
objects of every good government must be the due administra-
tion of justice; and how vain it would be to speak of such
an administration, when all property is subject to the will
or caprice of the legislature and the rulers.”
The payment of compensation is an essential element of
the valid exercise of the power to take. In the leading case
of Attorney-General v. De Keyser’s Royal Hotel, Ltd (1) Lord
Dunedin spoke of the payment of compensation as a necessary
concomitant to the taking of property. Bowen L.J. said in
London and North Western Ry. Co. v. Evans (2):’
“The Legislature cannot fairly be supposed to intend. in
the absence of clear words showing such intention, that one
man’s property shall be confiscated for the benefit of
others, or of the public. without any
(1) [1920] A.C.p. 508. (2) [1893] I Ch. pp. 16 & 28.
1009
compensation being provided for him in respect of what is
taken compulsorily from him. Parliament in its omnipotence
can, of course. override or disregard this ordinary princi-
ple …… if it sees fit to do so, but it is not likely
that it will be found disregarding it, without plain expres-
sions of such a purpose .”
This principle is embodied in article 31(2)of our Con-
stitution in these terms :-
No property, movable or immovable, including any inter-
est in, or in any company owning, any commercial or indus-
trial 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.”
We shall not here trouble ourselves with sub-clauses (3)
and (4) of the article and with articles 31-A and 31-B which
were introduced by way of amendment under the Constitution
First Amendment Act, 1951, dated 18-6-1951. They will be
considered later.
The argument of Shri P.R. Das that the payment of com-
pensation is a concomitant obligation to the compulsory
acquisition of properties by the State can be accepted as
sound; but when he went further and urged that it was found
in an implicit form in entry 42 of the Concurrent List, he
was by no means on sure ground. The entries give us the
bare heads of legislation. For ascertaining the scope or
extent or ambit of the legislation and the rights and the
duties created thereby, we must examine the legislation
itself or must have resort to general and well-recognized
principles of law of jurisprudence. No resort can be had to
anything implicit or hidden when the statute makes an ex-
press provision on the same subject. As just compensation
has to be paid when property is acquired for a public pur-
pose, the legislation has to
1010
formulate the principles for determining the compensation
and the form and the manner in which it is to be given.
Entry 42 means nothing more than a power conferred on the
Legislature for achieving this end. The power is conferred
but there is no duty cast to provide for compensation. For
any statement that the payment of compensation is a primary
condition for acquisition of property for a public purpose,
we have to look at the provisions of the Constitution itself
and this we find in article 31 (2)as stated already. Mr.
Das was obliged to take up the untenable position that entry
42 of its own force implies an obligation to pay compensa-
tion, as he couldnot otherwise jump over the hurdles created
in his way by sub-sections (3) and (4) of article 31 and the
new articles 31-A and 31-B.
The learned Attorney-General contended in dealing with
entry 42 that legislation under entry 42 can also lay down
principles that would lead to the non-payment of any com-
pensation and he cited Atiqa Begurn’s case(1) as an
authority in his support. This contention appears to me to
be as unsound as Mr. Das’s argument that the obligation to
pay or give compensation wasimplicit in the said entry. As
there can be no acquisition without compensation, the terms
of entry 42enable the legislature to lay down the principles
and provide further for the form and manner of payment. If
the principles are so formulated as to result in non-payment
altogether, then the legislature would be evading the law
not only covertly but flagrantly. There is nothing in Atiqa
Begum’s case that supports the argument. It was there held
that under the head “payment of rent” there could be legis-
lation providing for remission of rent. Payment of rent is
not a legal obligation of every tenureand the legislature
can enact that under certain circumstances or conditions
there shall be remission of rent. But as regards compensa-
tion for State acquisition, its payment is a primary requi-
site universally recognized by law. This is the essential
distinction to remember
(1) [1940] F.C.R, 110.
1011
when we seek to apply the case quoted. The last words in
entry 42 “form and the manner in which such compensation is
to be given” clearly mean that the principles determining
compensation must lead to the giving or payment of some
compensation. To negate compensation altogether by the
enunciation of principles leading to such a result would be
to contradict the very terms of the entry and such a meaning
could not be attributed to the framers of the Lists.
This, however, does not carry Shri P.R. Das anywhere
near success. Article 31(4) is the first stumbling block in
his way. It provides :–
“If any Bill pending at the commencement of this Consti-
tution in the Legislature of a State has, after it has been
passed by such Legislature, been reserved for ,.he consider-
ation 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).”
The Bill which subsequently became “The Bihar Land
Reforms Act, 1950” was pending at the commencement of the
Constitution in the legislature of the State, and after it
was passed by the legislature, it was reserved for the
consideration of the President and received his assent.
Therefore the bar that it shall not be called in question in
any court on the ground that it contravenes the provisions
of clause (2) becomes applicable. True, compensation has to
be provided for, by reason of sub-clause (2) of the article,
but sub-clause (4) postulates an exception and the right to
challenge the validity of the Act on the ground that no
compensation has been provided for or that the compensation
is really illusory or inadequate is taken away. As if this
were not enough, two more stiles have been erected in his
way and they are the new articles 31-A and 31-B brought in
by way of amendment. Article 31-A, sub-clause (1) is in
these terms :–
“Notwithstanding anything in the foregoing provisions.
of this Part, no law providing for the
1012
acquisition by the State of any estate or of any rights
therein or for the extinguishment or modification of any
such rights shall be deemed to be void on the ground that it
is inconsistent with, or takes away or abridges any of the
rights conferred by any provisions of this Part:
Provided that where such law is a law made by the Legis-
lature of a State, the provisions of this article shall not
apply thereto unless such law, having been reserved for the
consideration of the President, has received his assent.
Article 31-B provides :
“Validation of certain Acts and Regulations :–Without
prejudice to the generality of the provisions contained in
article 31-A none of the Acts and Regulations specified in
the Ninth Schedule nor any of the provisions thereof shall
be deemed to be void, or even to have become void, on the
ground that such Act, Regulation or provision is inconsist-
ent with, or takes away or abridges any of the rights con-
ferred by, any provisions of this Part, and notwithstanding
any judgment, decree or order of any court or tribunal to
the contrary each of the said Acts and Regulations shall,
subject to the power of any competent Legislature to repeal
or amend it, continue in force.”
When we look at the Ninth Schedule to the Amending Act,
the very first item mentioned is “The Bihar Land Reforms
Act, 1950.”
In the face of these almost insuperable obstacles, Shri P.R.
Das candidly admitted that he could urge nothing as regards
the adequacy or the illusory nature of the compensation
provided in the Act, if he was not able to convince the
Court on his main point that he could challenge the offend-
ing Act on grounds other than those mentioned in Part III of
the Constitution, and that there was something in entries
No. 36 of the State List and No. 42 of the Concurrent List
read together which imposed on the State Legislature an
obligation to provide lot the payment of just or proper
compensation and that the non-observance of this
1013
obligation entitles him to challenge the validity of the Act
as unconstitutional.
The acquisition of property can only be for a public
purpose. Under the Land Acquisition Act, I of 1894, a
declaration by the Government that land is needed for a
public purpose shall be conclusive evidence that the land is
so needed and Courts cannot go into the question whether the
public purpose has been made out or not. There is no such
provision in any article of the Constitution with which we
have to deal. It is true that sub-clause (2) of article 31
speaks of property being acquired for public purposes. The
bar created by sub-clause (4) of article 31 relates to the
contravention of the provisions of clause (2). The provi-
sion of clause (2) is only as regards compensation as can be
gathered from its latter part:-
“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.”
It is assumed, rightly, that the existence of a public
purpose is part and parcel of the law and is inherent in it.
The existence of a public purpose is not a provision or
condition imposed by article 31 (2) as a limitation on the
exercise of the power of acquisition. The condition pre-
scribed is only as regards compensation. Article 31 (4)
debars the challenge of the constitutionality of an Act on
this ground but no other. Whether there is any public pur-
pose at all, or whether the purpose stated is such a purpose
is open, in my opinion, to judicial scrutiny or review.
When the legislature declares that there is a public
purpose behind the legislation, we have of course to respect
its words. The object of the Act in question is to extin-
guish the interests of intermediaries like zamindars, pro-
prietors, and estate and tenure-holders etc., and to bring
the actual cultivators into direct relations with the State
Government. To achieve this end, several provisions have
been enacted for the
1014
transfer and the vesting of such interests in the State as
regards various items of properties. It is impossible to
deny that the Act is inspired and dominated by a public
purpose, but the question still remains whether the taking
over of particular items can be said to be for a public
purpose. It is in this connection that the two items of
“arrears of rent” and “cost of works of benefit to the
raiyats” dealt with in section 4, clause (b), and section
23, clause (f) respectively of the Act, have to be consid-
ered.
The taking over of “arrears of rent” does not seem to
have even a remote connection with any question of land
reform. It stands on no better footing than if the Act
sought to take over the cash on hand or in the banks of the
zamindars, proprietors or tenureholders. It is only an
accident that the rents in question were not realised before
the passing of the Act. Whether realised or not, they are
his moneys due and payable to him by the ryots. The conse-
quences of vesting of estates must have some relation to the
tenures themselves and have some connection, remote though
it may be, with the agrarian reforms undertaken or contem-
plated. Supposing that we have a legislation stating that as
it is necessary to eliminate rent collectors and farmers of
revenue and to apportion and distribute land on an equitable
basis amongst the tillers of the land and confer on them
rights of permanent occupancy and also to bring them direct-
ly into contact with the State, all moneys which the pro-
prietors had collected as and by way of rent from their
estates for three years prior to the commencement of the
Act, shall vest in and be payable to the State, could it be
said by any stretch of reason that any public purpose had
been established for the taking of the moneys ? Arrears of
rent stand on no better footing. Any public purpose in
taking them over is conspicuous by its absence. It is
fairly obvious that resort was had to the arrears either for
augmenting the financial resources of the State or for
paying compensation to the smaller proprietors out of this
particular item of acquisition. Property of individuals
1015
cannot be appropriated by the State under the power of
eminent domain for the mere purpose of adding to its reve-
nues; taxation is the recognised mode to secure this end.
If the latter was the real object, it must be observed that
to take one man’s property compulsorily for giving it away
to another in discharge of Government’s obligations is not a
legitimate and permissible exercise of the power of acquisi-
tion.
Sub-clause (1) of section 21 no doubt provides that 50
per cent. of the arrears of rents shall be added to the
amount of compensation. This means one of two things (a)
either the other 50% is taken without payment of any compen-
sation, which is confiscation virtually or (b) 50 per cent.
is taken as the consolidated value of the arrears of
rent–a lump sum payment for the acquisition of choses in
action or actionable claims. Taken either way, it is diffi-
cult to see wherein the public purpose consists. Whether
moneys could be compulsorily acquired at all by a State is a
moot question. Willis says in his Constitutional Law at page
816 :–“While, as stated above, any and all property is in
general subject to the exercise of the power of eminent
domain, there are certain rather unusual forms of private
property which cannot thus be taken. These are corpses,
money, choses in action, property used by the government in
its governmental capacity, property to be used for a mere
substituted ownership unless such substituted ownership is a
more necessary use, and perhaps trust property dedicated to
a State, mortgage liens, and suits to quiet title.” under
the heading “what property is subject to the right”, Cooley
observes in Vol. II of his book on Constitutional Limita-
tions, at page 1117 :”From this statement, however, must be
excepted money, or that which in ordinary use passes as
such, and which the Government may reach by taxation, and
also rights in action, which can only be available when
made to produce money; neither of which can it be needful to
take under this power.” In the footnote he points out :–
1016
“Taking money under the right of eminent domain, when
it must be compensated in money afterwards, could be nothing
more or less than a forced loan, only to be justified as a
last resort in a time of extreme peril, where neither the
credit of the government nor the power of taxation could be
made available.”
Nicols in his work on “Eminent Domain” does not disagree
with this view; on the other hand, he says at page 100 of
Vol. I, paragraph 2. 1 (3) :–
“The question has arisen whether money can be taken by
eminent domain and it has been held or intimated, at least
in so far as a state or. a private corporation is concerned,
that it is not subject to such taking. The objection is
not based on an implied inherent limitation upon the power
of government, but upon the difficulty of effecting a
taking of money that would be of any service to the public
without violating the Constitution. The use for which it
was needed might well be public. but, as compensation must
be paid in money, and, if not in advance, at least with such
expedition as conveniently may be had, the seizure of money
without compensation, or with an offer of payment in notes,
bonds or merchandise,–in other words, a forced sale or
loan–however it might be justified by dire necessity would
not be a constitutional exercise of the power of eminent
domain.”
The learned Attorney-General sought to justify this
acquisition on the ground that it was a compulsory taking of
choses in action. Even so, they stand on the same footing
as money, of less value no doubt than if they were coin or
currency notes. It seems that choses in action too cannot
be so acquired; reference has been made already to Cooley’s
observations.
The two cases Long Island Water Supply Company v. City
of Brooklyn (1) and City of Cincinnati v.’ Louisville &
Nashville Railroad Company(2) do not support the contrary
view. In the former ease,
(1) 166 U.S. 685 ; 41 I.. Ed. pp. 1, 165.
(2) 223 U.S. 389; 56 L. Ed. 481.
1017
a Water Supply Company was under a contract to supply water
to the town of New Lots (which subsequently became merged in
the city of Brooklyn) in consideration the town paying
for hydrants to be furnished and supplied as provided in the
contract. The contract was for a term of 25 years. When the
merger took place, the city of Brooklyn was given power to
purchase or to condemn the property of the company within 2
years but it did neither. In 1892, the legislature passed
another Act authorising the City of Brooklyn to condemn the
property of the company, provided the necessary proceedings
were commenced within one year after the passing of the Act.
The procedure for the acquisition was prescribed in the Act
itself. The power was exercised by the city and the compen-
sation payable was determined by the Commissioners at a
particular figure. The company objected to the acquisition
on the strength of article 1, Paragraph 10, of the U.S.
Constitution which forbids any State to pass a law impair-
ing the obligation of contracts and was not “due process of
law” as required’ by the 14th Amendment. On error, the
Supreme Court confirmed the condemnation and rejected the
argument that there was any impairment of the contract. Mr.
Justice Brewer points out that the contract is a mere inci-
dent to the tangible property and that it is the latter
which, being fitted for public uses, is condemned. The
contract is not the thing which is sought to be condemned
and its impairment, if impairment there be, is a mere conse-
quence of the appropriation of the tangible property. In
the present cases, it is untenable to state that the taking
over of arrears of rent is a natural consequence of the
acquisition of the estates.
In the latter case, a railroad company filed a suit to
condemn a right of way for an elevated railroad track across
the public landing at Cincinnati. The city objected on the
ground that the public landing had become property dedicated
to the public under an earlier contract and to allow the
condemnation under a
131
1018
statute of Ohio was an impairment of the contract, forbidden
by the 10th section of the first article of the Constitu-
tion of the United States. The court through Mr. Justice
Lurton held: The constitutional inhibition upon any state
law impairing the obligation of contracts is not a limita-
tion upon the power of eminent domain. The obligation of a
contract is not impaired when it is appropriated to a public
use and compensation made therefor. Such an exertion of
power neither challenges its validity nor impairs its obli-
gation. Both are recognised for it is appropriated as an
existing enforceable contract. It is a taking, not an im-
pairment of its obligation. If compensation be made, no
constitutional right is violated.”
It would thus be evident that they were not cases of the
compulsory acquisition of choses in action. Choses in action
unrelated to any tangible property can be useful for a
public purpose only when converted into money. Arrears of
money are particularly so. When it is said that money and
choses in action are exempt from compulsory acquisition, it
is not on the ground that they are movable property but on
the ground that generally speaking there could be no public
purpose in their acquisition.
The provisions in section 23, sub-clause (f) that 4 to
12 1/2 per cent. of the gross assets can be deducted from
the amount as representing “cost of works of benefit to the
raiyats”. This is an obvious device to reduce the gross
assets and bring it down to as low a level as possible. The
Act does not say that this charge represents the expendi-
ture on works of benefit, or improvements which the zamin-
dars and proprietors were under any legal obligation to
carry out and which they failed to discharge. Nor are we
told anything about the future destination of this deducted
sum. It is an arbitrary figure which the legislature has
said must be deducted from the gross assets. The deduction
is a mere contrivance to reduce the compensation and it is a
colourable or fraudulent exercise of legislative power to
subtract a fanciful sum from the calculation of gross
assets.
1019
Stripped of their veils or vestments, the provisions in
the act about “arrears of rent” and the “cost of works of
benefit” amount to naked confiscation. Where the legislative
action is arbitrary in the sense that it has no reasonable
relation to the purpose in view, there is a transgression by
the legislature of the limits of its power. Under. the
guise of legislating for acquisition, the legislature cannot
enable the State to perpetrate confiscation; and if it does
so, the Act to that extent has to be declared unconstitu-
tional and void. If the part that is void is so inextrica-
bly interwoven into the texture of the rest, the whole Act
has to be struck down. Such, however, is not the case here.
It is gratifying to note that the Madhya Pradesh Aboli-
tion of Proprietory Rights Act of 1950 and the Uttar Pradesh
Zamindari Abolition and Land Reforms Act of 1950 which are
also in question are free from this blemish of reaching at
arrears of rent due for any period anterior to the date of
vesting.
Appeals allowed: Petition No. 612 dismissed.
Agent for the appellant (State of Bihar): P. A Mehta.
Agent for the respondents in Cases Nos. 339,319,327,330,332
of 1951: J.N.Shroff. ”
" in Cases Nos. 309, 326, 328, 336, 337,344 of 1951 Ganpat Rai " " in Cases Nos. 310, 311, and 329 of of 1951 : R.C. Prasad. " " in Case No. 315 of 1951 : P.K.Chattargy " " in Cases Nos. 307,313,320,321, and 322 of 1951: Sukumar Ghose. " " in Case No. 331 of 1951: S.P.Varma
Agent for the petitioner in Petition No. 612 of 1951:
Ganpat Rai.
Agent for respondent No. 2 in Petition No. 612 of 1951:
P.A. Mehta.
1020