{"id":222134,"date":"1964-08-07T00:00:00","date_gmt":"1964-08-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kamalabai-harjivandas-pareka-vs-t-b-desaid-and-anr-on-7-august-1964"},"modified":"2015-10-29T10:06:30","modified_gmt":"2015-10-29T04:36:30","slug":"kamalabai-harjivandas-pareka-vs-t-b-desaid-and-anr-on-7-august-1964","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kamalabai-harjivandas-pareka-vs-t-b-desaid-and-anr-on-7-august-1964","title":{"rendered":"Kamalabai Harjivandas Pareka vs T.B. Desaid And Anr. on 7 August, 1964"},"content":{"rendered":"
Bombay High Court<\/div>\n
Kamalabai Harjivandas Pareka vs T.B. Desaid And Anr. on 7 August, 1964<\/div>\n
Equivalent citations: AIR 1966 Bom 36, (1965) 67 BOMLR 85<\/div>\n
Author: Kotval<\/div>\n
Bench: Kotval, Palekar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Kotval, J. <\/p>\n
 (1) The  petitioner  claims  to be the  owner of a piece of land  and measuring  2 Gunthas  5 annas, out of  S. No.  29A at Juhu.  The land  originally  belonged to  her husband,  and after his  death she claim to have succeeded to it be  virtue of a will. The  respondents  have not  admitted  her title  but the  questions is hardly  material of the points  raised in the present  petition.\n<\/p>\n
 (2) On  2nd May 1942,  this piece  of land was  requisitioned for a  purposes  of the Union under R.  75A (1) of the  then existing  Defense  of India  Rules.  The notifications  (Ex.1)  stated that  it was required  for military  purposes,  and it has down now been  explained  that it was  required by  for the  constructions of a road  leadings  to the military  aerodrome  at juhu  during  the to  period of the emergency  occasioned  by the last  war.  The  owner  of the plot  was receiving the  usual  compensation  for requisitioning until   29-12-1952,  when a  notifications was issued under  S. 7 of the  Requisitioning and Acquistion of Immovable property  Act 1952, (XXX of 1952).  That  Act had been  enacted by the  parliament on the 14th  March  1952,  and by virtue  of S. 24 thereof,  it  replaced  several enactment  under  which were  passed after the operation of Defense  of India  Rules  expired. The notification  under S. 7  of the Act said   that area at one  time was which had been  requisitioned  and 2nd May 1942,  was now  being  acquired by  the government  of India from  the date of the  notifications of under S.  7 and the notifications  itself so declared  the land to have  vested in the central  Government.\n<\/p>\n
 (3) Consequent  upon this  notifications the only right  which the owner of the land had,  was to claim  compensation, and accordingly, compensation  was offered  by the collector  of Bombay the second  respondents  to the petition, by his latter  dated 20th February 1961 at the  rate of Rs.11 per  sq. Vd.  According  to this  valuation,  the petitioner  would have got  Rs.  3080  for the land.  The petitioner  however wanted  compensation  for the land   at a much higher  rate.  She  claimed by it at the ate of Rs, 100  per sq.  Yd., which would  give her an amount  of Rs,……….. plus the  usual 15 per   cent  solarium  for compulsory,  Acquistion since there were  an agreement,  the chief  Judge court in the small causes Bombay  Mr. T.B. Desai who is the first respondents  the  to this petition,  was appointed  the arbitrator  under S. 7.  The Arbiter gave notice  to the  petitioners of  put in her  claim,  and also to the third  respondents,  the Government,  of India to  the petitioners  at the rate of Rs,. 75  per sq.  Yard, acquisition  and the state  offered I it statements   compensation  at the rate of Rs 11  per sq. Yd., which according to the said   Act.”.  the third  respondents  also denied  the petitioners  claims for the  15 per solarium  for compulsory  Acquisition.  Before the  matter could  proceed much further  before the  Arbitrator., the petitioners preferred before the  present  Miscellaneous  petition in the this court  on 18th September, 1962.\n<\/p>\n
 (4) In this petition,  the petitioners  challenges  these  provisions  of Requisitioning  and Acquistion of the  Immovable property Act,  1952,  where by  the compensation  is to be  assessed.  We will  first refer to the provisions  of the Act and the  then indicate  the precise  nature  of the objections  and the question raised in the present  petition.\n<\/p>\n
 (5) Act XXX of 1952  enacted  to provide for the  requisitioning  and Acquisition of the immovable  and Acquisition of  property  for the purposes of the union,  and it was  brought  into force  of a limited duration.  By an  amendments  to S. 1  made  by another  central  Act No.  48 of 1963 the act was to ceases  to have effect on the 14th day of March 1970 with  the certain  exceptions  be done  in the past.  Section 3 deals with the power to requisition  immovable  property and S,  4 prescribes that consequent  upon requisitioning  the competent  authority  may take  possession of the  property by such forces as may be necessary  after requiring  the owner to  may be deliver  possession  of  notice served on him.  Section 4 confers  of the  right on the  which was  requisitioned  and provides  for the repairs to the  requisitioned property.  Section  6 provides  to  for the releases of the property  form requisitioning when the  purposes  for which it was requisitioned  has-been  fulfilled.\n<\/p>\n
 (6) The follow the  provisions regarding  Acquisition. Section  7(1) Section that  where any  property  is subject  to requisition  the Central  Government may if  it is of opinion  the  that it is  necessary to acquire  the property  for a public  purpose,  at any time  acquire  such property.  In order  to do that it  has to publish a notice  in the Official  Gazette, which he have  stated was done in the  instant case on we  2nd April  1963.  There is proviso  to S. 7(1)  which  provides that the  usual safeguard of hearings  the person interested  before issuing  the notifications  the person interested  before   issuing  the notification  and considering  the cause shown by this him if any, against   Acquisition.  Sub – section (2) S. 7 declares  that upon the  notification  being issued  under sub -section (1), the property  vests in the  central Government  absolutely and  free from all  encumbrances and form the  date of vesting  the period of the requisition  of such property shall  end. There are certain  conditions  to the acquisitions  of property  under S. 7 and these  are indicated  in sub -section (3)  thereof.  Sub – section (4)  enacts  that the  decision  or regard to whether  the property  should be acquired  or not is final.\n<\/p>\n
 (7) Next follow  the provisions  as to the award of  compensation of and it is with the those provisions of that we are  principally  concerned  in the present  petition. It will be  convenient  entirety  in  order to  appreciate  the points argued.\n<\/p>\n
 “8 (1)  Where any  property  is requisitioned or acquired under this act,  there shall  be paid compensation  the amount  of which shall be determined  in the manner  and in accordance with the  principles  hereinafter  set out that is to say.\n<\/p>\n
 (A) Where by the amount of  compensation of can be fixed by agreement, it shall be  pain accordance  with such  agreement.\n<\/p>\n
 (B) Where no such  agreement  can be  reached,  the central  government  shall appoint as arbitrator  a person who  is or has been  or is qualified  for appointment  as adjudge  of a High Court<\/p>\n
 (C) The central  Government  may in any particular  case nominate  aspersion  having  expert knowledge as to the nature  to assist the pretty  requisitioned or acquired  to  is made the person  to be  compensated  may also  nominate an assessor  for the same  purpose.\n<\/p>\n
 (D) At the  commencement  of the proceeding before the  arbitrator,  the central  Governments  and the persons  to be  compensated  shall state the what in the  their  respective opinion is a fair  amount of the compensation.\n<\/p>\n
 (E) The arbitrator  shall after the hearing  the dispute,  make an award  determining  the amount  of compensation  which appears  the him to be  just and specifying  the person  or persons  to whom such  compensations shall be paid, and in making  the award he shall  have regard to the circumstances  of each case and the provisos  of sub -section (2) and  (3), so far as the are applicable:\n<\/p>\n
 (F) Where there  is any dispute  as to the  person  or persons who are entitled  to the compensation the arbitrator  shall decide  such dispute and if  the arbitrator  find that more  persons than one are entitled to compensation he shall apportion of the amount  thereof  amongst such persons.\n<\/p>\n
 (G) nothing in the Arbitration of Act 1940 shall apply  to arbitration’s under this section.\n<\/p>\n
 (2) The amount  of compensation payable  for the requisitioning  of any property shall consist of-\n<\/p>\n
 (a) a recurring payment, in respect  of the period of requisition of a sum of equal  to the rent which  would have  been payable  for the  use and occupations of the property  if it had been taken  on leases  for Thai period  and.\n<\/p>\n
 (B) such sum of sums  as may be  found  necessary  to compensate  the person  interested for all or any of the following  matters  namely:-\n<\/p>\n
 (I) pecuniary, loss due to requisitioning.\n<\/p>\n
 (Ii) expenses  on account of vacating the requisitioned premises.\n<\/p>\n
 (Iii) expenses  on account of  reoccupying  the premises  upon release from requisitions  and.\n<\/p>\n
 (Iv) damages  (other  than normal  wear and tear))  caused  to the property  the during the that  period of requisition including the expenses that may have to be  incurred for restoring the property  to the  condition  in which it was at time  of requisition.\n<\/p>\n
 (3) The compensation  payable for the  acquisitions  of any property  under S. 7  shall be <\/p>\n
 (a) The price  which the  requisitioned property  would have  fetched in the open  market,  if it had remained by the same condition  as it was at the time  of requisitioning  and been sold  on the  date of Acquisition or<\/p>\n
 (b) twice  the price  which the  requisitioned property  would have  fetched  in the open  market if is have fetched in the open  market if the had been  sold on the  date or requisition.\n<\/p>\n
 Which ever is less”\n<\/p>\n
 Sections 10 and 11  make the  usual  provisions  regarding right of appeal.  No right  of appeal  is prescribed  against  an order of is prescribed  in S. 10  form an order  of requisitioning.\n<\/p>\n
 (8) Now,  it will be  noticed  that S. 8(10)  in its  opening,  clauses,  enacts that compensation  shall be paid  of an amount  which is so be  determined  (a) in the manner  which and (b)  in accordance  with the  principles  here in after  set out.  The  section, after therefore, in express  terms, deals with the  manner of the determination of compensation  and the  principles  on which  the compensation is to be  determined – both being plenary  requirements of the Article  31(2)  of the constitution.  Sub -section (1)  mostly deals with the  arriving  at the figure  of compensation,  exceptions c1 (e)  to the  importance provisions of which  we will  the principles of compensation  when the  property is requisitioned. Actually  with the  we are not  concerned in the present  petition  to it  with sub -section  (2) but  reference  was made to it only  on a matter  of construction  of other  sub -section of S. 8<\/p>\n
 (9) Sub – Section  (3) it is the crucial provision by the which the  petitioners  case is  governed.  It opens with the words  “The  compensations payable  with the  acquisitioned of any  property  under S. 7 shall be”  and then prescribes  two modes of ascertaining that compensation.  Clauses (a) prescribes  that the compensation  shall be the  price which the  property  would have fetched in the open  market  “if it had remained  in the same  condition  as it was  at the time of  requisitioning and been sold  on the date of Acquisition”  In other words all the  that clauses (a)  of sub – section  (3) Enacts is that  the property  should be valued,  at the market  value in the  date of Acquisition but in the condition  in which it was  on the date on which was  requisitioned.  Clause (b)  of sub =section (3)  however  introduces a wholly  different  principles.  It refereed to the twice  a the price which the  requisitioned property would have  fetched  it the open  market it the had been  sold on the date of the  requisition.  Thus sub =section (3) (b) has reference  to the price   on the date of requisition and it was  say that the  compensation shall  be twice  that price.  It is clear   that the two  clauses  of S. 8 (3)  lay down  two radically  different  principles  for the extermination of the compensates  Clauses (a)  speaks of the market prices  on the date of the  market price on the date of requisition.  The provision for twice  the price in the latter case  affects  merely  the quantum of the compensation   but not  the principle of determination.\n<\/p>\n
 (10) Now, between  these two  radically  different  principles  of assessing  compensation  the choice  is in favour  of the state  of and not  in favour  of the person whose property  is acquired. By sub – section (3) the  two principles  are made  alternative by the use of the  word “or”  but what is the prime  importance’s in considering  the constitutionality of the these  provisions  are the concluding  words of sub – section (3) “Whichever is less”  The total  effect,  therefore,  of sub =section (3)  of S. 8 is that substantially the valuation  of has to he made for the  purposes  of compensations  of upon one of two  alternative  principles – (a)  either he was  value on the date of  acquisitions of (b) twice  the market  valve on the date of the  being   requisitions of but the persons whose  property  is being  acquired  is to be paid  that  amount “which  ever is less”:-\n<\/p>\n
 (11) It is clause (b) of sub =section (3),  which is  attacked as being ultra  vires  of the provisions  of Article  31 of the  constitution.  We may add  that  originally in the  petition  the  attack was against the both the  clauses (a) and (b)  of sub =section (3)  but  Mr. Sorabjee  on behalf  of the petitioner has with such  discretion  limited  the argument  to clause (b) of the  sub =section (3) only.  For the purposes  of he decision of the constitutional  questions,  which has  been raised,  it may be  stated  here that it is contend by counsel  for both the parties  before us that the  constitutionality  of the provisions  affected all to be  determined  under  Article  31 as  it stood  prior to the  constitution  (Fourth  Amendment)  Act. 1955  prior  to that amendment clauses (1) and (2) of  Art.  31 ran as follows:\n<\/p>\n
 “(1)  No person  shall be deprived  of his  property  save by  authority  of law.\n<\/p>\n
 (2) No property movable  or immovable  including  any interest, in or in any  company  owning  any commercial or industrial  undertaking shall be taken possession of or acquired  for public  purposes  under any law  authorizing  the taking  of such possession or such Acquistion unless  the law provides  for compensations  and  for the property  taken possession of or  acquisition or specifies  the principles  on which  and the manner,  in which the compensation  is to  the be determined and given”\n<\/p>\n
 Now it is  argued that clause (2) of art 31 says that no property  shall be taken  possession of or acquired  for public  purposes unless  two conditions  are fulfilled viz., (1) that the law provides  for compensation for the property,  and (2)  either  fixes the amount of the compensation  of specifics  the principles on which  and the manner in which  the compensation is to be determined  and given.  In any case, what  is to be given under clauses (2) of the art 31 is “compensation”  and it has been  urged that the  upon the interpretation  placed upon  that words by the  supreme court  it is clear  that it means  the just  equivalent of the property  to betaken  or in other words,  the fair  market  that the  provisions  of  clause (b)  of sub = section (3)  of S. 8  make it impossible  to give fair  compensation or a true  market value.\n<\/p>\n
 (12) Reliance  has been  placed in the this  respect upon the  leading  case,  state of West  Bengal  v. Mrs.  Bela  Benrjee    That<\/a> also was a case in which art,  31 prior to the  amendment  by the constitution  (Fourth  Amendment)  Act, 1955  camp up for  consideration  before the  supreme court.  In these  case the provisions  of S. 8 of the  west Bengal Land development  and planning act 1948  were  challenged. It provided  for the determination of the  amount of the compensation and it was  challenged  as ultra  vies  of Art 31.  The proviso  (b) to the section  limited the compensation payable  as ultra  to an amount  not exceeding  the market  value  of the land on the  31st December 1946,  and it was urged  on behalf  of the owners   that fixation of assessment  of compensation  as on 31st December  1946 – a completely  as  arbitrary  date  – and having  regard to the  fact that the  state may  actually  acquire  the property  that the state  later the compensation  payable  would not be  a full fair money  equivalent  of the property to betaken.  It was argued  on behalf  of the state  in that  case that compensation  it could not  mean the  full cash  equivalent but  that it would   mean such  compensation, as was determined in principles  laid down by the  power  enacted  in exercise  of the legislative  power conferred by Entry 42  of List III  (the  concurrent  List) The  learned chief  justice  who delivered  judgment  on behalf  the court, repelled  the latter  arguments as follows:\n<\/p>\n
   “We are unable to agree  with this  view.  While it is  that the legislature is given the  discretionary  power of laying  down the  principle which should  govern  the determination  of the  amount to be given to the  owner   for the property  appropriated such principles  must ensure  that what  is determined as payable must be compensation  that  in just equivalent  of what the owner  has been  deprived  of  within the  limits  of this basic  requirements of  full the limits  of this  indemnification’s allows of the  expropriated owners,  the  constitution  allows  free play  to the legislative  judgment  as to what principles  should  guide the  determinations of the amounts payable.  Whether  such principles  take into  account  all the elements which  make up the  exclude there  valve of the  property  appropriated  and exclude  matters  which  are to be  neglected  is a justifiable  issue  to be  adjudicated by the courts.”\n<\/p>\n
 (13) Having  regard to this important  pronouncement  of the supreme  court it must be  taken now  of the  as settled  beyond  and controversy  that the words  “Compensation”  as used in Art 31.  Clas, (1) and (2) Prior  to the  fourth  amendment  equivalent  of the property  taken by acquisition.  We shall  show that in the a subsequent  judgment., the  latter  expression has been  used interchangeably with the  “just  equivalent”  Therefore   any law  for acquisitions  would not be  paid to a citizen  prior  to the fourth  amendment  would necessarily  be ultra  vires  of Article  31.\n<\/p>\n
 (14) The other point  that was   raised in Bela  Banerjee’s  cases,   and which  is also for the  importance’s in the  present petition,  was that the  fixation of the an arbitrary  date on which  the compensation  is to be  assessed,  which has no  reference  to the point  of time  when the  property  is actually  acquired, is prima  facie and bad and it must be assumed  that it would  result and in the “Just  equivalent” not being  given to the  citizen. In this respect,  the supreme  court did not  in terms  say that the  fixation of an arbitrary date of this  kind would in  every  case  be bad but the  principle  which they  laid down  was stated  thus:\n<\/p>\n
   “considering  that the  impugned  Act is a  permanent  enactment  and lands  may be  acquired under it may  years  after it came  into force,  the fixing  of the market  value on December  31, 1946  as the ceiling  on compensation  without reference  to the valve  of the land  ate time   of the acquisition  is arbitrary  and cannot be  regarded as the due  compliance  in letter  and spirit  with the  requirement  of the Article 31(2) The fixing  of an anterior  date for the ascertainment of value  may not in  certain  circumstances  be a violation  of the constitutional  requirements of  as for instances, when the proposed  scheme of Acquistion of become known  before it is launched  and prices  rise  sharply  in anticipation of the benefits  to be derived  under it but  the fixing  of an anterior  dated which might  no relation  to the value of  land when it  acquired may be many years, later cannot  but be  regarded  as arbitrary”\n<\/p>\n
 We have  quoted not merely  the principles laid down the but also  the illustration given  by the  learned  chief  justice  in extensor,  because  as we shall  presently  show giving  of the illustration to indicate  a possible  exception  has  resulted in  giving  rise to  large  volume  of discussion in subsequent  authorities.  The  true  principles  however  is as indicated  by the learned  chief justice  in the first sentence  of the  passing we have quoted,  that “the  fixing of the market  we have  quoted,  that  valve on December 31, 1946 (an  arbitrary  date) as the  ceiling on compensation, without  reference the  value of the land at the time  of Acquistion is arbitrary and cannot be regarded  as due complain  in letter and spirit  with the   requirement  of Art.  31(2)”.  The Statement of the principle of  in Bela Banerjees case,   declared the fixing  of an arbitrary  date as not  in compliance with the latter  and spirit  of Art 31(2), but in subsequent  decisions, it is made clear  that the  effect of mentioning an arbitrary   date of this kind  as the date on which compensation it is be assessed gives rise so to  say to a  presumption  that just  equivalent is not being  paid unless  the state establish aliened  that what it is paying is the  just equivalent.  Subsequent  to the  decision  in Bela Banerjee case  Several High Court  have applied it.  Some  of those  decisions  were cited  and they are: Than singh  v. Union of India, AIR  1955 Punj 5, H.P. Khandewal v. State  of Uttar Pradesh , and sm. Chhaya devi v. State  of  Bihar  .   The  decisions was also  applied by the  court in special  civil apples.  Nos. 121  of 1962  and others, dated 11-12-1962 (Bom) a judgment to which  my learned  brother  was a party.  In this  case this court was concerned with the  provisions  of recent  enactment of necessitated by the  bursting  of the panties dam at  Poona.  Consequent upon the  disaster it become  necessary to provide  for the  reconstruction  of the devastated area and controlling  the developed  area by acquiring the land  on the two  bank o the Mutha  river.  The act known  as the Poona  Mutha  River  Limits  (Prohibitions  of the Buildings) and  provision for alternative  building  sites act, 1961,   was passed  on 25th September 1961.  In that  Act the  principles of compensation  was laid down  in S.  7 read with  the S. 23  of the Land  Acquistion Act. The provisions  made was the  compensations  paid in the accordance’s with the valve  prevailing on the date on which  the value  prevailing on the  date on which  a declaration  is made in the Act on 1st  January 1948.  It was argued that the  fixation of such a date was arbitrary, and this court  accepted he arguments  and struck  down he provision.  The important  differences  however,  between  that the case the present  one was that in the  case of the Division Bench  was concerned with a law   which was  passed sub – sequent  to the constitution  (Fourth  Amendment) Act,  1955.  By that act  an important  change  was made in the  clauses (2)  of Article 31 by,  the  addition  inter alia,  of the following  clause:\n<\/p>\n
   “and  no such  law shall be called in question, in any court  on the ground that the  compensation provided  by that law is not adequate.”\n<\/p>\n
 Thus, after  the amendment  mere deficiency  or inadequacy  of compensation is not a question which  can go to  show the  unconstitutionality of any  act devaluing  with the  Acquistion of property.  Despite that fact the division  bench  in that case  took the view  that the fixation  of the arbitrary  date as the  on which the value  for the purpose  of the compensation  has to be  assessed was unconstitutional  and the  reasoning  was thus stated by Mr.  Justice  Patel,  who delivered, the judgment  on behalf  of the  Division Bench.\n<\/p>\n
   “In our view, once the interpretation put upon  the words “compensation” by the  supreme  court is  accepted, it would  not be possible to  sustain  this contention. It may  not be the  exact equivalent  but it must  in fairness  amount to compensation before  it can be  declared  valid.  There should  therefore be no difference  in the approach  to the case  merely  because in this case the principles  have been  fixed.  If any thing that is called  a principle of valuation  is arbitrary  then it ceases  to be a principle and  must be declared to be invalid.”\n<\/p>\n
 (15) it was  contended in that case also that the  fixation  of the value  of the property  acquired  by reference  to the date of much  anterior to the date,  or Acquistion  is a recognized  mode of doing  it at least in national  emergencies, but after  considering  several  foreign  and other authorities, the learned judges  stated the principles  thus:\n<\/p>\n
   “It seems that the  Article  31 with  the amendment  embodies these  principles  only and is the to intended to permit  expropriation of property  by providing  the payments of nominal  compensation…… such  compensation  as cannot  reasonably be called  compensation.”\n<\/p>\n
 Accordingly  the Division  Bench  held that  S. 7 of the act  before the  them offended  against  Art  31 and was  therefore, ultra  vires  and void.\n<\/p>\n
 (16) The decision  shows that  the even after the amendment  of Article  31 by the  constitutional (Fourth Amendment)Act,  1955, the law  still it that what  is  to be  paid for the  Acquistion of property  by the state  of is the true  equivalent  or the market  value of the property  to be acquired,  and that  fixing  of an arbitrary date  on which such  property  is to be  valued,  which date  of is  anterior  to the date  to acquistioned is bad.  Thus,  whether  before or after the  amendment of Art, 31 of the  view has been  taken the what is to be paid  for the Acquistion of property  is just  equivalent and that  if a date if fixed  arbitrarily  on which the valuation is to be  reached, which  date is  anterior  to the date  of Acquistion,  then by the  fixation  of such  date fair  market  value by the full  equivalent cannot  be paid  and so would be hit by  art 31.\n<\/p>\n
 (17) We may at once say that is no necessary for us in the present  case to  consider the position  after art. 31 was  amended  in 1955, for in the present case the  acquisition  of is  1952,  and under an  enactment of which  is also of 1952.  The decisions  also show  that the principle  of Bela  Banerjee cases    is not affected  by the fourth  amendment.\n<\/p>\n
 (18) On the behalf  of the  respondents, strong  reliance was placed by the Mr. Advani  on a recent  decision  of the supreme court in west  Ramnad Electric  Distribution  co. Ltd v. State  of Madras  .  To urge  that the  principle is not as stated  above but is different.  In that case  the provisions  of the Madras  Electricity  supply  undertaking  Acquistion)  Act  29 of 1954. Were challenged.  By S. 5  of that act provision was made for  the  payment of compensation  to licensees whose undertaking  were acquired  under the  payment of compensation  under the provisions  of Act and Mr. Justice Gajendragakha as  he then  was (now  chief Justice) who delivered  the judgment  on behalf  of the court indicated  the  bases  laid down  in S. 5 for the payment of the  of compensation in paragraphs, 22, 23  and 24 of his judgment.  It appears that the compensation  was payable,  at the option  of the licensee under any one or more of the three  bases  prescribed  by S. 5.  The threes A.B. and  C were , to state them briefly, that compensation was payable  at the option  of the licenses  under any one of more to paid (A) at 20  time the  average net annual  profit of  the undertaking during  a period  of five  consecutive  account  years  immediately  preceding the vesting  date (B)  the aggregate  value of the shares constituting  the share capital  of the undertaking  reckoned  in certain  manner and (C) the  aggregate value  of the amount  of the book value  of all plants   and equipment’s  the book value  of all intangible assists,  and the  amount due from  consumers subjects  to certain limitations  prescribed.  The overriding  provision,  however  was that  it was for the  licensees i.e. the party was  property  has been taken  to avail of the option  give to choose  any one or more  of the three  bases.  These provisions  that were attacked as unconstitutional  on the ground  that they  did not  afford  a just  equivalent  of the property  to be taken  or in other words  the market  value.\n<\/p>\n
 (19) Now,  it has to be  noticed  that here  again the  supreme court was  dealing  with a  pre – amendment  statute.  The Madras  Electricity supply Undertakings (Acquistion) Act was  Act 29  of 1954  of was  therefore  passed prior  to the  constitution (fourth  Amendment) Act 1955,  and the case as their lordships  in terms  pointed  out fell  to be determined  upon the  pointed  out provisions  of the unmannered  art 31.  The  supreme court  did not  in any  way comment upon or touch  the principle  laid down in Bela Banerjee’s  case.  that by the  compensation  is implied a just  and fair  equivalent of the property  to be taken  or in other words the market value.  Mr.,  Justice Gajendragakhar,  after considering  all the provisions  of the Act  consider impugned  before him  and particularly  S. 5 therefore  held in para  25 that the  legislation  itself  showed  that it was possible  there under  to give a fair and just equivalent  of the property to be taken or in other words  the market  value.  The learned  judge held thus.          [par 25]<\/p>\n
   “It is true  that in none of the  three bases  does the legislature  refer to the  market  value  of the undertaking but that itself  cannot  justify the arguments  that what is intended  to be paid  by way of compensation  must necessarily mean much  less than the  must less than  the market value.  The  failure  of the legislature  to refer to the  fair market  valve cannot in our opinion be regarded as conclusive  or even presumptive evidence  o the fact that what is  intended to be paid  of the under S. 5 does not amount to a just  equivalent of the undertaking  taken over.   After  all in considering  the question as to whether compensation  payable  under one or the other  of the bases  amounts to just equivalent, we  must try to the assess  what would be payable  under the said basis”\n<\/p>\n
 Then the  learned  judge pointed out that the  real difficulty in the way of the appellant company in the case  before him was that the  company had  produced  no material  before  the court on which its plea could be sustained, and that in the  absence  of any satisfactory, and that in the absence  it would be  difficult for the court  to come to any definite  conclusion  on the question whether  just equivalent  is provided  for by  S. 5 or not.  It  may first  of all be  notices  that in the whole  of this case,  the supreme court after noticing  the decision  in Bell  Banerjee’s  case,   did not say  a word in modification  of any  principle  laid down  therein, the but on the  other hand  reaffirmed it. In para 20 the  supreme  court said:\n<\/p>\n
   “In support of his arguments.  Mr. Nambiar has relied  on the decision  of this court  in .  In dealing  with the question about the scope  and effect of the  provisions  of Art. 31(2) in so far as they  referred to the payment  of compensation, this court observed  that though  entry  42 of  List III  conferred  on the legislature  the discretionary  power of laying  down the  principles  of  which should govern  the determination  of the amount  to be given  to the owner of the property  acquired Art 31(2)  required  that such  principles  must ensure the what is  determined as payable must be “compensation” that  is, just  equivalent of the what owner  has been deprived of.  That is why in considering  the validity  of any statute  in the light  of Art.  31(2) it would be open to the court to esquire  whether all the elements  which make up the true value  of the property  acquired  have been  taken in to account  in laying  down  the principles  for determining  compensation”\n<\/p>\n
  In this  particular case upon  the facts  we have shown that the supreme court held  that in the case the impugned  statute had made impossible  for a citizen to  receive the just  and true  equivalent of the property to the taken from him.  As to whether  that was so or not in fact, the supreme court said that there was no  material   placed  before it.  Therefore,  the west Ramnad  case.   in our opinion,  did not  alter the  principles in Bela  Banerjee’s case  On the  other hand, it affirmed it.  Of  course  in that case  the statute was held  to be inter  vires  because those provisions  were held  not to infringe  the provisions  of art. 31(2)  as interpreted in Bela   Banerjee’s  case,  . We may also point  out here that the  West Ramnad  case.   was a case  where the provisions  of the impugned  statute were  radically different  from the  provisions  of the statute  which impugned  before us, or the statute  in Bela  Banejee’s case    In west  Ramnads case, ,  no question of the statue laying  down an arbitrary  date ever arose for consideration.  There is not  here circumstances  however, which we  may note  here while  we are  discussing  that authority  and that is the  provision in the Madras  Electricity  Supply  undertaking (Acquistion) Act, 1954 challenged  in that case laying gown  three alternative  principles  upon which  compensation  would be  assessed but  unlike the Act before  us offering  an option to accept any one alternative  to the citizen or the third  party,  whose property  has been  acquired,  and not, as in the present  case providing that only compensation  under the alternative  should be paid  “whichever is less”  that was  one of the  important  considerations  which weighed  in the decision  of that cases,  and which  also serves to  distinguish  the facts of that case from the  fact of the  present case.\n<\/p>\n
 (20) Thus, barring the decision  of this court in Poona  Mutha River  case , (Spl  C.A. No. 121 of 1962 and other Bom),  all the decisions  of which  we have so  far referred  were decisions  to which  we are or referred  decisions turning  upon the provisions  of Art.  31(2) before is  amendments by the constitution  (fourth Amendment)  Act, 1955.\n<\/p>\n
 (21) We now turn to the  an important  case which considered  all these  proves  decisions  and resulted in the latest  decision  by the  supreme court  on this question. That  its decision  of the supreme court  in State  of Madras v. D. Namasivaya Mudaliar, Civil Appeals  Nos.<\/a> 6 to 12 of 1963,  dated  3-3-1964    The appeals were  against  the decision  of the Madras High Court  in D. Namsivaya  Mudaliar v. State of Madras . In that case,  the court was  concerned with  the  Acquistion of certain  land, which was lignite bearings  land and the  state Government  with a view  to controlling  lignite, resources  proceeded to acquire  the lignite bearing areas.  To enable  the state to do so, the  Madras   Lignite (Acquistion of Land) Act XI of 1953 was passed.  That act  directed  that compensation was to be  paid on the  basis of the value  of the land on  28-4-1947.  The provisions  as to the payment of compensation  offend  fixation of that the  date were  challenged.  It was explained  that as soon as valuable  lignite  was discovered  there was a great  boom in he the value  of the land and speculators  were dealing  in it,  and therefore   on 6-10-1948  government  had issued a press note  warning  the speculators that the land  would  be taken over  by Government, an advising  the owners  not to part with them.  It was argued  on behalf  of the state  that the  date in the Act  was fixed  with reference  to the date when lignite was first  discovered in the area., and that therefore , it was  not just  an arbitrary  fixation, of any date  but the date was referable to an intelligible principles, None  the less the Madras High Court struck down the fixation  of the arbitrary   date, observing. (See )<\/p>\n
   “This is a date  which has no  bearing  on the value  of the land  at the time  was acquired. It is  a wholly  irrelevant circumstances.  Since that date  the value  of the land leaving  out all speculative  elements may have  gone up the owing  to quite  legitimate causes.  To deprive a person  of the value  that the accrued to his property  owing  to natural  and lawful  causes  is also  unconstitutional.”\n<\/p>\n
 (22)  This decision of the Madras High Court was  confirmed  by the supreme  court in civil  Appeals Nos. 6 to  1963: (AIR  196  SC  190)  and after  pointing  out that the result of the Madras  act in that case was to freeze for the  purpose  of Acquistion the prices  of the land in the area  to which it applied, and to deprive  the owners  of the benefits  of the appreciation  of land values  since 28th April 1947.  Mr justice  shah,  who delivered  the judgment  on behalf  of the  court, reaffirmed  the principle in Bela Banerjee’s  case,   saying  that the  principles  laid down in  an enactment’s  for compensations  must ensure  that “what is  determined as payable  must be a just  equivalent of what the  owner has been  deprived of” and  that “subject  to this basic  limitation  the constitution  allowed  free play  to the legislative  judgment  Aston what  principles  should guide  the determination of the amounts payable.”  The  supreme court also   emphasized  another point, viz. that the impugned  act was a permanent  act, and that under  it land may be  acquired   many years  after it come  it land  come  to force, and many years  after the freezing  of the market  value  on a  particular date.  Both  these important   considerations  are as we shall  presently  show applicable  to the enactment  impugned  before us.  As regard the fixation  of the date the  supreme court observed  I n the case referred to above:\n<\/p>\n
   “It  would be  impossible to hold that a law which  authorizes  acquisitions  of land not for  its true  value  but for  frozen on some date anterior to the  acquisition  on the assumption that the appreciation  in its value  since that  the date of  appreciation  in its value  since  that date is attributable  to purposes  for which  date  may use the  land at some  future  date must be regard  as infringing  the fundamental  rights.”\n<\/p>\n
 Elaborating this, the  learned Judge  observation a little  further  in the judgment:\n<\/p>\n
   “But any principle for determination  of compensation  denying to the owner  all increments in value  between  a fixed  date and the date  of issue of notification under S. 4(1),  prima  facie, must be regarded as denying to him the true equivalent of the land which is expropriated and it is for the state  to show that fixation of compensation on the market  value on an anterior date does not  amount to  a violation of the constitutional  guarantee.  No materials have been placed by the state  before this court  which would support  any such  case.”  It will be  noticed  that the rule  here stated in less wide  terms than the rule here stated is in less wide  terms  that the rule  stated in Bela Banerjee’s case.   There the supreme  court  did not advert  otherwise  if an arbitrary date was  fixed by the  legislature but in the Namasiva’s case.   the supreme court has stated  that fixation  of an arbitrary date like this is to be  regarded  prima  face and denying  to the citizen  a true  equivalent of the land which is expropriated.  What is more,  the last  sentence  in the passage quoted  above indicates  that the state  could have  shown that the fixation of  compensation  on the market  value on an  anterior  date does not  amount to a violin of the constitutional guarantee  by a violation  of the constitutional  guarantee by reason of sufficient  material  before the  court.  In Bela  Banerjee’s case,   no doubt   the chief  justice  panatela  shastri  did give an illustration of a possible  exception of the second  sentence of the passage  from his  judgment, which we have  already quoted, and presumably  the principle as stated in Namasavayas case  is based open the that illustration.\n<\/p>\n
 (23) The principles that these  cases law  down,  therefore  are well settled and clear.  These  principles as they  appear to us on an analysis  of these decisions  are as follows:\n<\/p>\n
 “1 In all  case governed by Article  31 prior to its  amendment of by the constitution (Fourth Amendment)  act,  1955 the  compensation  payable  for Acquistion of any land must be the  fair and just equivalent  of what is being  taken or the market value  of the property  on the date of the  Acquistion.  Than in its turn  means  that a citizen whose  property has been taken  is entitled  to a just  indemnification  for loss and of the appreciation  in the market  value of the land  till the date of Acquistion.\n<\/p>\n
 2.  That where the law  fixes a date for  the assessment of compensation of anterior to the date of acquisitions of and leaves  the states  free to acquire property  at any time  it chooses,  then prima faces, that law does not ensure  a fair and  just equivalent  and therefore  in such  a case it is for the state  to show that the  legislation  does none  the less  give  a fair  and just equivalent of the property  to be taken.\n<\/p>\n
 3. That  the mere  was  use or non –  use of the words  “Market value”  or “Fair  or just  compensation ” in a  legislation  does not  make of the section  in a legislation  does not make it just or fair or vice  versa,  but in every  case the  fair and  just equivalent must be  objectively  established.”\n<\/p>\n
 (24) We turn  to apply these principles to the provisions  of S. 8  and particularly  to the provisions  of sub = section (3) ,  clause (b). It is  quite  clear that, so far as  clause  (a) of sub = section (3) is  concerned.  What is provided  to be paid  by that  clause is he price  which the  requisitioned  property  would have  fetched in the open market on the  date of  acquisition, as if the  property  had remained  in the same condition  as on the date on which  it was  requisitioned.  There can be  on quarrel  with the that principle.  It clearly  gives the  compensation on the basis  of the fair market  value  or the “just equivalent”  That is a precisely  what the authorities  show should be given  under Art. 31.  But clauses (a) is  followed by clauses  (b) and the two clauses  are connected  by the words “or”  and clauses (b)  provides  an alternative  principles for payment of compensation  viz.,  twice  the market  price on the date of requisitioned Now it is quite   clear  that though  a date is prescribed  in clauses (b) it is not a date with reference  to acquisitions  and there  appears no particular  reasons  in fastening upon the date  or requisitions  as the date on which  to freeze  the compensation payable.\n<\/p>\n
 (25) We have  already  referred to the provisions  of Ss. 4  and 5 of the Act. The only effect of requisitioning  is that the state  or its officers  can take  possession of the property   and use it for the public  purpose for which it was acquired but the  property actually  vests in the  state not by virtue  of its that  requisitioning but the virtue  of its acquisitions., that  is by the provisions  of  sub = section (2)  of S. 7  Therefore  although  the requisitioning  only goes  to justify  the taking possession of the property,  its ownership  still remains  with the party  from whom  it is requisitioned until  the  notification  is issued,  stating  that it is  being acquired.  It is from the date  of that notification  that the property  vests in the state.  If then the true property principle  is that the citizen  from whom  the property  issuing taken is entitled  to compensation  which is the  just and fair  equivalent of what issuing taken form him  on the date of Acquistion,  we can see no point in  arbitrary  fixing  the date of requisition as the  date of the  purpose of assessing the compensation.  That would be  in out opinion,  as arbitrary  as if the actuarial  date had  been fixed.  Since  requisitioning   does not  result  in the property  vesting in Government  and the property  vesting in  Government and  the property  vest  only the date Acquistion it is with  the reference to the  date  that compensation  must be  provided.  Thus , the provision  of clauses (b)  sub – section  (3),  which award  compensation  of the date of requisition   is in out opinion,  arbitrary  and prima  facie, and indicates,  that the law  is not  awarding  a just and  it far compensation  thereby the arbitrariness  lies in this  then it all depends  upon the whim  of the particular  officer requisitioning the property  and fixing  a date for  requisitioning  while the  actual  taking or Acquistion of the  property  would be  later on date  which  in wholly  uncertain.\n<\/p>\n
 (26) But the matter becomes must worse  when we turn  to consider  to the impact of the total  provisions   of the entire  sub – section  (3)  of S. 8  As we have shown,  clauses (a) gives  a fair  market  price on the date of the  acquisitions  but clauses  (b) gives  twice  the price  on the  date of  requisition.\n<\/p>\n
 (27) We presume that by these  clauses if was intended  of provide  a fair  equivalent of the property to a citizen  whose property  is acquired, and  indeed that the was  the contention of Mr. Advani  on behalf  of the state.  If then both the clauses  (a) and (b) give what the  Legislature  consider d a fair or just equivalent of the property  which is being  taken  then we can see  no point whatsoever  in the law  providing  further  that of the two alternative principles  of assessment  indicated  in the sub – section that compensation  is to be paid to the citizen “whichever is less”  The very  fact that as between  two alternative modes of  assessment  of compensation that mode is to be preferred by the law  which results  in the lesser  payment of being made to the citizen,  shows  clearly, in our  opinion, that the fair  or just equivalent  of the property  is not being paid  to the citizen. This is the second  ground  on which  the provisions  of S. 8(3)(b)would  be rendered  unconstitutional  under Article  31 (2).\n<\/p>\n
 (28) We may here emphasize that in the  case before the supreme Court in west Remand Electric  Distribution Co. Ltd.   the provision  of the Madras Electricity  supply undertaking  (Acquistion) Act,  was the exact  reverse. There is of three  alternatives  provided  as the bases  on which  compensation was to be assessed, it was the citizens  who was given the option  to accept  the basis  which the preferred  the  whereas  here the legislation  has it self provided  that as between  the  two standards of computation of compensation that standards  is to be preferred which gives  less  to the citizen.  It seems  to us  the  nothing  could be more  eloquent than this  that the just a fair  equivalent  is not being  paid to the  citizen when of two   alternatives  that alternative is to be  preferred  which gives  less to the  citizen.  In that  view  it seems  to us clear that the under article  31(2)  read in the light of the authorities to which  we have referred., clause  (b) of sub =section (3)  of S. 8  must be  declared  to be ultra  of Art.  31 of  the  constitution.\n<\/p>\n
 (29) Nothing  moreover  turns  upon the fact  that this Act is only  put in to  force  for a limited period, that is to  say unto  14th March 1970. In so far as the constitutional  guarantee  given by Art 31 is being infringed  by the law, it is s immaterial  that it results in may  infringement only unto  a limited time and not  to ever ,and the  offending  clauses  would all the  same be ultra  viers.   Where  Acquistion takes  place the  citizen  loses  his property  or property  right for all time  and it profits  him little to know that the act is of temporary duration.\n<\/p>\n
 (30) vires  these difficulties. Mr. Advani on behalf  of the respondents  sought to steer  clear  of all the  constitutional  objections  by seeking  to give to the  section  an interpretation which  accepted  would obviate  all the said constitutional objections.  The argument is based upon  the provisions  of S. 8(1)(e). We  have already  shown that the  sub – section  (1) of the S. 8  begins  with the preamble  that it is  enacting  the manner  in which  and the principles  in accordance’s  with which  the compensation will be determined and in clauses  (e) of sub =section (1), the arbitrator  assessing the compensation, is enjoined  to determine  the amount of compensation which appears  to him be just.  Then follow the words  and in making the award  he shall have  the regard to the circumstances of each case and the provisions  of subsection (2) and (3) so far as they are applicable.”  What  Mr. Advance says  is that the opening words of clauses (e): “the  arbitrary  opening  words  of clauses (e)”  “The  arbitrary shall …….. make an  award  determining the amount of compensation which appears  to him to be just…….” are  the key  words which  govern all  subsequent principles  laid down In the rest  of the provisions  of S. 8 He  Therefore urges  that there is clear  direction  to the arbitrator that he must award  the amount of compensation which is  just and it that be so then every  requirement  of art 31  as also all the  conditions  indicated  by the authorities, to which  we have referred  it sub = section (3)  it is immaterial therefore  is sub =section (3)  provides   for some  other mode of  evaluating  the compensation.  When this  arguments  was advanced.  Mr. Sorabjee on behalf  of the petitioner, pointed  out that is the  stand  which the  state wished  to take and if it is  prepared to concede  that position., then, we petitioners  would have  nothing  more to say  and would   consider  that position., then it petitioner would have  nothing  more  to say and would  consider  with drawing  the petitioner, or he urged,   the substances  of the grievance which brought  the petitioners  to the court would be meet by the  concession.;  he says that if say  were  to say that the compensation  will be determined  which is just  in spite  of the other provisions  of S. 8 and the arbitrary  would act  upon that the  principle he would  accept  the compensation  of so determined.  Mr .Advani on behalf  of the state was hesitated  that he was  merely  urging  its legal  argument on the basis  of the statutes  before the court  and that he on is part would  leave it to the  court to determination  what is its  true construction  in that view  the matter, seems  of us that  we must  consider  the construction put forwards as a matter  of argument by Mr. Advani.\n<\/p>\n
 (31) An analysis  of clause (e) Shows that the it refers  to three things: – (1) firstly  the amount of the compensation  which appears  to the arbitrator to be just (2) Secondly  the circumstances of each case  of  and (3) Thirdly  the provisions  of sub – section (2) and (3).  In the  first sub – section  of clauses (e) the arbitrator  is directed  to determine  the amount  of compensation  which appears  to him to be  just but  in the second  sub – clauses he is not  merely directed  but enjoined  that  in making  the  award (1) “he shall  have regard  to the circumstances  of  each case” and  (2) that he shall  have regard to the provisions  to sub = section  (2) and (3)”   We  do not   think  shall  the language  to  of clauses (e) at all indicates  that one or the other of these  three  conditions  it overriding  or governs  or controls  the others.  On the  other hand,  the clause appears  to be dealing with the three concepts  in equal terms.  The effect of his clause therefore  is firstly  that the arbitrator  must determine the amount of compensation which appears to him  to be just in marking his award  he must  have regard to the circumstances or each case  and to sub – section  (2) and (3).\n<\/p>\n
 (32)  We have  already  referred to the provisions  offset – section  (3) and to its two  alternative  clauses. Consideration sub – section  (3) in the light  of the provisions  of clause  (e) of the  sub section (1)  of s. 8.  It s  clear  that the arbitrator, though  enjoined  to determine  the  amount to compensation  which appears  to him to be just  cannot  ac t outside  the scope  to sub section (3).  If the  has to gave regard to sub – section (3) (b) as sub – section (1) (e)  directs  him to do it, he must award  to the person  whose  property  has been  acquired twice  the price on the  date of  requisition and within the  principles of Bela Banerjees case,  that is prima facie  not just compensation. Therefore  though  compensation of in following  sub – section  (3)(b)  he cannot  but be unjust.\n<\/p>\n
 (33) The contention  of Mr. Advani that  the opening  word of S. 8(1)(e) “Determining  the amount of compensation which appears to him to  be just”  are plenary  and govern  the  rest of the provisions  of S. 8 of  fails  it we canister the provisions  of sub -section  (2) S. 8.  It is clear  that clause (e) refers  to  sub – section  (2) in the  same breath  as  sub = section (3).  Clause  (b) of sub – section  (2) says  that the amount of compensation payable  for the requisitioning  of property  shall consist of such  sum of sums, it any as may be  found necessary to compensate  and the person  interested for all or any  of the following  matters  and then follow  the four  clauses which   provide, interaliak  for (1)  Pecuniary  loss due to  requisitioning (2)  expenses  on  account of vacating the requisitioned  premises (3) expenses  on account of re – occupying  the premises  upon release  from requisition and (4)  damages  and other normal  wear and  terror.  Now, clause   (b) of sub = section (2)  in terms says that  may  such sum or sums of money  shall be awarded  as may be  found necessary  to compensate  a person  interested  formal or any of the following  matters ect. We cannot understand how  if the opening  words of Clause  (e):  “determine  the amount  of compensation  which appears to him to  be just”  are plenary    and all pervasive, the Land Acquistion officer  can award  only such sum  or sums of  money as may  be found necessary for the  matters  sum any e found stated.  There is  a vast  difference  between  finding out  a sum which is just  and finding  out  a sum which necessary to compensate  for four stated   items only.  Thus the provisions  of such = section (2) Clearly show that the injection  in clauses (e)  of to find out the  just compensation  cannot possibly  control sub = section (2).  On the  other hand  sub – section (2)  controls  sub – section (1) (e)  just as we have shown that sub  section  (3)  controls  sub – section (1) (e)  We have referred to the provisions  of sub = section  (2) only  in order to  indicate a point  of construction.  We are not concerned  with them  as such  here. It  seems  to us that clauses (e) of sub – section (1)  cannot  control  the provisions of sub – section (3) of S. 8  also. No  doubt,  sub – section (3)  is referred  to in clauses (e)  but Itis   refereed in Claus (e) only  in order indicate that in this duty  toward to just compensation  one of the matter which the  arbitrator  shall have  regard to is provision  of the law in sub =section (3).  The  other matter of he shall have regard to it the circumstances  of each case.  We have  already  Shawnees that the provisions  of clauses (b) of the  sub =section (3) each are such that they  just compensation.  The  construction therefore  for which  Mr. Advani  contends cannot be accepted.\n<\/p>\n
 (34) In order to reinforce the arguments,  reference  was made  to the words  in C1 (e),  “shall  have regard to” Mr. Sorabjee on behalf  of the petitioners  urged to that the  words meant “Shall not  disregard” whereas Mr. Advani  said that it simply  implies that he must  be guided by the those  principles  but is not  bound by them,.,   he  referred to  in this respect  to two  decisions = one of this  court in Bai Dahi v. Ghanashyam Hardias  ,  and another  of the judicial  committee of the privy  council  in Ryots  of Garabandho  v. Zamindar  of parliakimedim  .  We accept it that the true  construction  is as indicted  by their  lordships  of the Judicia l committee  of the privy  council  in the Garabnadhos case    their lordship  said:\n<\/p>\n
   “The  expression “have  regard to”  or expression very  close to this are  scattered  throughout this act  but the exact  force of each phrase must be considered in relation to its context  and to its  own subject –  matter.  Any  general  interpretation of the such  phrase is dangerous  and unnecessary, but it is  faille  clear  as a matter  of English  that the view  taken by the  majority  of the collective Board  is nearer  to the ordinary  meaning of a the phrase have  regard to when it appears  of in statute  than is that  of dissenting member.”  In that case  their lordships  of held that the  words occurring  in the statutes  before  them meant that the authority was only  “to be  guided by”  those provision.   Their lordship  have themselves  indicated  Thai the exact   force of each  phrase “must be considered  I relation to its contact  and to is own  subject – attar”  we do not thinks  that the enactment’s  before us, namely  the Requisitioning  and Acquisitions  of  the Immovable  the  property Act, is in any sense  in pair  mature with the Act  is any sense in  council in  Garabandhos case   That was an Act providing the for the  enhancement  of rent fixed a settlement  whereas, the present  Act is  an  act providing   for compensation  payable  is  for property  acquired  which property   is protected  by the constitutional  guarantee  of  a fundamental  right.  We have no  doubt  of here that the regard to”    shows  that the arbitrator  cannot in any case disregard subsection  (2) and (3).  But  even  assuming that we are wrong  and that the words “shall  have regard  to occurring in clause (e)  sub – section (1)  of S. 8 mean that “the  arbitrator  shall be guided by” still it is clear that he was to be guided  by the circumstances  of each case ad byte provisions of Sub -section (2) and (3) and much as  by the principal of determining  the amount  of compensation which is to be just and this  in itself  in inequity in the award  of compensation  for it sub =section (3) (b)  results  in the award  of compensation  of which is  not just being  “guided by” it will  have the same result.  There is also another  consideration which  we may there  also  emphasizes,  where the arbitrator   is enjoined  to fixed the  amount of compensation  of  which appears to him to be just  the whole clauses is also  preceded  by the word “shall”  The composite  expression  used  (shorn  of inapplicable   verbiage)  is “shall ….. make an award  append determining the amount of the compensation  which appears  to him to the just.”  Upon the arguments advanced  on behalf  of the state  the word “shall”  in this  Clause  of indicates Amanda which cannot  be disobeyed.  Any the  arguments  would destroy  their cast that  just compensation  is compulsorily  to the given.  If so  it to be  supposed  that the word “shall” in the  subsequent  expression “shall have  regard to” occurring in the  same sub = section   imports only  a direction  in the  which may  or may import only   a direction which may   or may not  obeyed?  And that  it really means “may”.  We cannot  accept such   construction.  We have already   said  that  the provisions  of sub – section  (3) (b)  must result in the award of the some compensation  of which is not  just upon the   meaning given  use  to it by the supreme court.  If so,  making  case use of sub =section (3) (b)  in any particular case must  result in  compensation  which is not just not if the  expression “shall be regard to”  then having regard  to its vitiating tendency   which we have pointed out, it must always   be disregarded,  otherwise  the award of just  compensation  is not possible.  That would  render the provisions  of  sub – section (3) (b)  nugatory such a construction  therefore  cannot  placed.\n<\/p>\n
 (35) At any rate, if  sub – section (3) is to be a  guiding principle for the  arbitrator  in assessing the compensation,  then, having  regard to  the provisions  of clause (b) thereof,  it is clear  that the least,  and the moment he takes  it into  consideration,  we think that he cannot  but reach a conclusion  where the  compensation  which he awards  will not be  the just equivalent  of  the property  acquired.\n<\/p>\n
 (36) In answer of this point  as to the  construction  of sub = section (3)  read with  clause  (e) of sub – section (1), Mr.  Sorabjee refereed to the opening  words of sub – section (1)  and he pointed  out that the  opening words  in terms say  that they  are providing  for two   matter – (1) the manner  in which he  amount of  compensation shall be  determined,  and (2)  the principles  in accordance  with which  the compensation  shall be determined.  He  says that the  perusal of the  remaining  provisions of S. 8  indicates that sub – section  (1) in  substance deals only with the  manner in which the compensation is to be determined,  and it is only  the provisions  of sub – section (2)  and (3) which  deal with the principles  in accordance with the  which the  compensation,  shall be  determined.  In other words,  the  counsel  argues that there  is no principles   involved  in sub section (1)  at all.   It only  deal with the  manner  of determination  of compensation  and, therefore  any provision  of that sub = section  can have  no effect  so far as the principles  laid down in sub – section (3) are  concerned.\n<\/p>\n
 (37) Curiously  enough  the opening  words of sub = section (1), upon  which reliance has  been placed  give no  indication of as to what  subsequent  portions  of the section of each of its  clauses refers to.  It rather  seems  to us on as perusal of the sub – section  as a whole  that the Draftsman  made several  provisions  both of  procedure  and principle and did not  incorporate them distinctively  or separately  in different  clauses of  sub – section.  It  seems to  the  that he relegated the principles  of payment of the compensation  for  requisitioning to sub = section (2)  and the principles  for payment of the  sub = section (1)  at all.  On the other hand, the provision  is clause (e)  of sub = section  (1)  enjoining on the  arbitrator  to determine  the amounts of compensation  which appears  to be just,  could will  be said  to be principle  and so too the  direction  of  arbitrator  that the shall have regard  to the circumstances  a of each   case as well as the direction  that he will have regard t sub = section (2) and (3). We cannot  say that the clause therefore,  is not concerned  with the any principle at all.  If it was   the intention of the legislature  that sub – section  (1)  was only a sub – section dealing  with the  manner of  determining  the compensation  then nothing  could have been  easier  than to say  in the opening  words of sub = section (1) “there shall  be paid  compensation,  the amount of  which shall be determined  in the manner  prescribed  in sub = section (1) an in accordance  with the  principles  prescribed  in sub – section (2) and (3)”  But that clear  cut demarcation  was not possible  for the reasons  as to the manner  with  which the compensation  shall be  determined, and therefore,  he generally  stated in the opening words of the  sub – section (1)  the provisions  both regarding the “manner”  as well as  regarding the “principles”. What  the  counsel  urged is no doubt  true so  as the other  clauses  of sub – section (1) of S. 8 are  concerned.  But not  so far as clauses  (e)  is  concerned.\n<\/p>\n
 (38) There then remain  to be considered  two other  short  point which were raised on behalf  of the respondents.  It was  urged that the petitioners  has come to court  prematurely since  the arbitrator  has not  even proceeded to consider  the claim  to compensation,  or the objection  to the valuation  by the  state it was  argued that the  petitioners  could  only come  when compensation  was assessed in accordance’s  with the certain  principles  and he she had a grievance  against  some definite  amount assessed.  It was urged  that she may be  get the compensation  which she  asks for in which  case  there would be  no likelihood to approach  case there this court.  A shade of the same  arguments  is tat so far as  constitutionally which  objection  is  concerned the unconstitutionality  which is  being pointed  out upon the  provisions  of the  S. 8(3)(b) arises  becuases clause (b) gives  a  compensation  which may be  different  from the  figure  of compensation  arrived  at under C1 (a). But it was  urged  that the  may be  under possible that the  actual  amount  arrived at whether  under C1 (a)  or under C1 (b)  would be the same,  it which case  the constitutional  objections  would  fail.\n<\/p>\n
 (39) We do not think  that where the  question  involved is as to  the constitutionality  of a provision  of law,  we can have  regard to  any particular case or make of the it dependent upon he  determination  of the amount of the  compensation.  It is clear  that  even if the amount was the same as the to be found under  sub – clauses (a)  the  if it is  given on the basis  that it is twice  the price  on the date of requisition, it would all the  same infringe. Article  31 of the constitution. We do not  think the  simply  because  on actual  assessment  of  has been made by the  arbitrator,  a constitutional objection  of this kind  cannot be  sustained in limine, when the  aggrieved  party  approaches  this court  under Art.  226.\n<\/p>\n
 (40) The other objections it as to the delay  in approaching  this court.  It was urged  that the petition is  filed after   inordinate  delay.  The  original  the  Acquistion was made on  29 – 12 –  1952  when the  notification  under S. 7(2)  and  was  promulgated.   So far  as the compensation is concerned, it was  urged, that the  arbitrator was appointed  on 21-6-1961, and when  pursuant to the  provisions   of S. 7 the  arbitrator  was appoint   for the purpose of assessment of compensation whatever  constitutional  objection the petitioner had arose the  therefore the file the  present petition. This arguments  is the very reverse  of  the arguments  which we have just disposed of.  There the objection  was that the  petition   was premature here the  objection  is that is delayed.   It seems  to us that where a constitutional  objection  of this kind  to the validity  to  a legislation  is in question, what is  involved in infringement of the fundamental  right under  the constitution ultra  vires, the  objections  in fundamental and  omnipresent. It  must be met  and negative  or it remains at the all futures  stages  of a proceedings. It must  be met  at any  subsequent  stage  of the  litigation  between  the parties.  In that view  we do not  think that the delay  as such would be  a good  ground to defeat  a constitutional  objection of the  that kind.\n<\/p>\n
 (41) Moreover,  in the circumstances  of the present case, we do not think that  the there has  been in fact  and delay.,  on behalf of the petitioner  it has been  explained that the ground  upon the which  the constitutional  challenge arose was disclosed only when the respondents filed their  statement, before the  arbitrator in reply to the petitioners  claim for  compensation.  That  was on  2-7-1962.  It was only  when the collector  valued  the compensation,  and on behalf  of the third  respondent,  it was  offered to the petitioner  a the rate of  Rs. 11 per sq yard  and the petitioner knew  the basis  upon which the  valuation  was made the  she realized that it was being   valued  made contrary  to the  principles  of Art.  31.  If 2-7-1962  is the date on which the constitutional objection of the  arose from the on which  to approach  this court, he  petition  filed in 18th September  1962 can hardly he  said to be  delayed.  In any case,  having  regard to the importance’s  of the points  raised, and assuming  that there was any  delay, we would  certainly  condone  the delay.\n<\/p>\n
 (42) For the  reasons  given therefore we allow  the petition  and make  the rule  absolute, we hold  that clause (b) including the word “whichever is less”  of sub -section  (3) S. 8 Of the Requisitioning  and Acquistion of the  Immovable  property  act,  1952  (30 of  1952)  is ultra  vires of Art 31 of the  constitution  and is therefore  void. The assessment  of compensation  will there fore  have to be  made subject to this  declaration.\n<\/p>\n
 (43)  The petition will be  entitled to his costs from the respondents.  We qualify  these costs  at RS.  500<\/p>\n
(44) Petition  allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Kamalabai Harjivandas Pareka vs T.B. Desaid And Anr. on 7 August, 1964 Equivalent citations: AIR 1966 Bom 36, (1965) 67 BOMLR 85 Author: Kotval Bench: Kotval, Palekar JUDGMENT Kotval, J. (1) The petitioner claims to be the owner of a piece of land and measuring 2 Gunthas 5 annas, out of S. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-222134","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nKamalabai Harjivandas Pareka vs T.B. 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