{"id":27591,"date":"1952-05-27T00:00:00","date_gmt":"1952-05-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-state-of-bihar-vs-maharajadhiraja-sir-kameshwar-on-27-may-1952"},"modified":"2017-11-14T15:28:46","modified_gmt":"2017-11-14T09:58:46","slug":"the-state-of-bihar-vs-maharajadhiraja-sir-kameshwar-on-27-may-1952","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-state-of-bihar-vs-maharajadhiraja-sir-kameshwar-on-27-may-1952","title":{"rendered":"The State Of Bihar vs Maharajadhiraja Sir Kameshwar … on 27 May, 1952"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The State Of Bihar vs Maharajadhiraja Sir Kameshwar … on 27 May, 1952<\/div>\n
Equivalent citations: 1975 AIR 1083<\/div>\n
Author: A Gupta<\/div>\n
Bench: Gupta, A.C.<\/div>\n
           PETITIONER:\nTHE STATE OF BIHAR\n\n\tVs.\n\nRESPONDENT:\nMAHARAJADHIRAJA SIR KAMESHWAR SINGHOF DARBHANGA AND OTHERS(C\n\nDATE OF JUDGMENT:\n27\/05\/1952\n\nBENCH:\nGUPTA, A.C.\nBENCH:\nGUPTA, A.C.\nBEG, M. HAMEEDULLAH\nCHANDRACHUD, Y.V.\n\nCITATION:\n 1975 AIR 1083\n\n\nACT:\n    Bihar Land Reforms Act (XXX of 1950)---Law for abolition\nof zamindaries--Validity--Necessity to provide for compensa-\ntion and of public purpose--Jurisdiction of Court to enquire\ninto validity-Delegation of legislative powers--Fraud on the\nConstitution--Constitution   of\t India,\t  1950--Constitution\n(First\tAmendment)  Act,  1951 Arts. 31,  31-A,\t 31-B,\t362.\n363--Sch.  VII, List II, entries 18, 36 and List III,  entry\n42  --Construction--Spirit  of\tthe  Constitution-Right\t  of\neminent\t domain--\"Law\",\t \"Legislature\",\t \"Public   purpose\",\nmeanings of--Covenant of  merger--Compulsory acquisition  of\nprivate\t property of Ruler--Acquisition of arrears  of\trent\npaying 50%--Deduction for cost of works--Legality.\n115\n890\n\n\n\nHEADNOTE:\n    Held  per Curiam (MAHAJAN, MUKHERJEA and  CHANDRASEKHARA\nAIYAR JJ.)--The Bihar Land Reforms Act, XXX of 1950, is\t not\nunconstitutional  or void except with regard to\t the  provi-\nsions in s. 4 (b) and s. 23 (f) thereof.  The provisions  of\nS. 4 (b) and s, 23 (f)\tare  unconstitutional.\tPer   PATAN-\nJALI  SASTRI  C.J. and DAS J.--The whole of the\t Bihar\tLand\nReforms\t Act of 1950, including the provisions contained  in\ns. 4 (b) and s. 23(f) is constitutional and valid.\n Per PATANJALI SASTRI C. 3., MAHAJAN, MUKHERJEA, DAS  and\nCHANDRASEKHARA\tAIYAR JJ.--(i) The Bihar Land  Reforms\tAct,\nXXX  of 1950, is not a law in respect of a matter  mentioned\nin entry 18 of List II, viz., \"lands and land tenures\",\t but\na  law\tin respect of \"acquisition of  property\",  a  matter\ncovered by entry 36 of List II.\n(ii)  The obligation to pay compensation for  property\t ac-\nquired by the State is not an obligation imposed by entry 36\nof List II read by itself or in conjunction with entry 42 of\nlist III or by the spirit of the Constitution. Consequently,\nan  objection  to the validity of a statute  in\t respect  of\nacquisition  of\t property  on the ground that  it  does\t not\nprovide\t for payment of compensation is an objection on\t the\nground that it contravenes the provisions of art. 31 (2) and\nthe jurisdiction of the Court to entertain such an objection\nin  respect of a statute mentioned in the Ninth Schedule  to\nthe  Constitution  is barred by art. 31 (4), art.  81-A\t and\nart. 31-B of the Constitution.\tPer DAS J.-Assuming that the\nobligation to pay compensation is also implicit in entry  86\nof  List  II, in itself or read with entry 42 of  List\tIII,\neven  then the validity of the Act cannot be  questioned  by\nreason of arts. 81 (4), 31-A and 31-B.\n   (iii)  Section 32(2) of the Act which empowers the  State\nGovernment  to frame rules providing for \"the proportion  in\nwhich compensation shall be payable in cash and in bonds and\nthe manner of payment of such compensation\" does not involve\nany  delegation\t of  legislative powers\t especially  as\t the\nlegislature has itself provided in s. 32(2) that the compen-\nsation\tshall  be payable in cash or in bonds or  partly  in\ncash and partly in bonds and fixed the number of instalments\nin which it should be paid. The words \"subject to\" in  entry\n36  of\tList II only mean that whenever a law is made  by  a\nState Legislature in exercise of its legislative power under\nentry  36, that law will be subject to the provisions  of  a\nlaw made by the Parliament under entry 42 of List III.\t The\nwords do not mean that when a State makes a law under  entry\n36  it\tmust lay down the principles on\t which\tcompensation\npayable\t for property acquired is to be determined  and\t the\nform and manner in which it should be given.\n (iv)  Entries in the Legislative Lists are merely of  an\nenabling  character.  The power conferred thereunder on\t the\nlegislatures is not coupled with any duty on the legislature\nto exercise\n891\nsuch  power and the principle laid down in Julius v.  Bishop\nof  Oxford [5A.C.214] has, therefore, no application to\t the\nLists.\n    Per\t PATANJALI   SASTRI  C.J.,  MUKHERJEA  and  DAS\t JJ.\n(MAHAJAN  and  CHANDRASEKHARA. AIYAR  JJ.  dissenting).--The\nexistence  of  a public purpose as a  pre-requisite  to\t the\nexercise of the power of compulsory acquisition is an essen-\ntial  and integral part of the provisions of art.31 (2)\t and\nan infringement of such a provision cannot be put forward as\na  ground for questioning the validity of an  Act  providing\nfor  compulsory acquisition: DAS J.--Even assuming that\t the\nnecessity of a public purpose is implied in entry 36 of List\nII and\/or entry 42 of List III also, arts. 31 (4), 31-A\t and\n31-B  would still protect the Act from being  questioned  on\nthe  ground that the acquisition was not for a\tpublic\tpur-\npose. In any case the impugned Act is supported by a  public\npurpose.\n    Per\t MAHAJAN and CHANDRASEKHARA AIYAR jj.--The scope  of\nart. 31 (4) is limited to the express provisions of art.  31\n(2)  and  though  the courts cannot examine  the  extent  or\nadequacy of the provisions of compensation contained in\t any\nlaw  dealing with the acquisition of property  compulsorily,\nyet  the provisions of art. 31 (4) do not in any  way  debar\nthe court from considering whether the acquisition is for  a\npublic purpose.\t Though the main object of the Act, viz, the\nacquisition of estates, is for a public purpose, the  acqui-\nsition of arrears of rent due to the zamindars on payment of\n50  per\t cent.\tof their value cannot be held to  be  for  a\npublic purpose and sec. 4 clause (b) of the Act is therefore\nunconstitutional  and void. Per MUKHERJEA J.--Assuming\tthat\nart.  31 (4) relates to everything that is provided  for  in\nart.  31 (2) either in express terms or even  impliedly\t and\nconsequently  the  question  of the existence  of  a  public\npurpose\t is not justiciable, as the real object of  sec.  4,\nclause (b) is to deprive the man of his money, which is\t not\na subject-matter for acquisition under the powers of eminent\ndomain, without giving anything in exchange, under the guise\nof  acting under entry 42 the legislature has in  truth\t and\nsubstance evaded and nullified its provisions altogether and\nsec. 4 clause (b) is therefore unconstitutional and void.\n    PATANJALI  SASTRI C.J.--Whatever may be the position  as\nregards\t the acquisition of money as such it is not  correct\nto  say\t that a law made under entry 36 of  List  II  cannot\nauthorise  acquisition of choses in action like\t arrears  of\nrent  due  from the tenants which are covered  by  the\tterm\n\"property\" used in that entry and in art. 31. The view\tthat\na payment in cash or in government bonds of half the  amount\nof  such  arrears leaves the zamindar  without\tcompensation\nfor the\t balance is equally fallacious. Section 4 clause (b)\nis not therefore ultra vires or unconstitutional.\n892\n    Per\t MAHAJAN,  MUKHERJEA and  CHANDRASEKHARA  AIYAR\t JJ.\n(PATANJALI  SASTRI C.J, and DAS J.  dissenting)--Section  23\n(b) of the Act which provides for a deduction on a  percent-\nage  basis  out of the gross assets for \"costs of  works  of\nbenefit to the raiyat\", is ostensibly enacted under entry 42\nof List III, but it is merely a colourable piece of legisla-\ntion,  a mere device to reduce the gross assets, which\tdoes\nnot  really  come under entry 42  and  is  unconstitutional.\nPATANJALI SASTRI C J. and DAS J.--  The zamindars are  under\nan  obligation to maintain and repair the  minor  irrigation\nworks in their villages which are beneficial to the  raiyats\nand the cost of such works is therefore a perfectly  legiti-\nmate deduction in computing the net assets of the estate and\nsec. 23 (f) is not unconstitutional. Further, as payment  of\ncompensation  is not a justiciable issue in the case of\t the\nimpugned  statute, having regard to arts. 31 (4),  31-A\t and\n31-B,  it  is  not open to the Court to\t enquire  whether  a\ndeduction  which  results in reducing  the  compensation  is\nunwarranted and therefore a fraud on the Constitution.\n    Per\t MAHAJAN J.--The phrase \"public purpose\" has  to  be\nconstrued according to the spirit of the times in which\t the\nparticular legislation is enacted and so construed, acquisi-\ntion of estates for the purpose of preventing the concentra-\ntion of huge blocks of land in the hands of a few  individu-\nals  and  to  do away with intermediaries is  for  a  public\npurpose.\n     DAS J.--No hard and fast definition can be laid down as\nto  what  is  a ,'public purpose\" as the  concept  has\tbeen\nrapidly\t changing in all countries, but it is clear that  it\nis  the presence of the element of general interest  of\t the\ncommunity in an object or an aim that transforms such object\nor  aim\t into a public purpose, and  whatever  furthers\t the\ngeneral interest of the community as opposed to the particu-\nlar interest of the individual must be regarded as a  public\npurpose.\n\n\n\nJUDGMENT:\n<\/pre>\n
    APPEALS  under  article 132 (1) of the  Constitution  of
\nIndia  from the judgment and decree dated 12th March,  1951,
\nof  the High Court of Judicature at Patna  (Shearer,  Reuben
\nand  Das JJ.) in Title Suits Nos. 1 to 3 and  Mis.  Judicial
\nCases  Nos. 230-234, 237-244, 2-16 to 254, 257, 261 to\t264,
\n266, 262, 270 to 277, 287-290 and 297 of 1951.\tPETITION No.
\n612 of 1951, a petition under article 32 of the Constitution
\nfor enforcement of fundamental rights, was also heard  along
\nwith these appeals.\n<\/p>\n
    The\t facts that gave rise to these appeals and  petition
\nare stated in the judgment.\n<\/p>\n
893<\/span><\/p>\n
    M.C.  Setalvad (Attorney-General for India) and  Mahabir
\nPrasad\t(Advocate-General  of Bihar) with  G.N.\t Joshi,\t Lal
\nNarain Singh and Alladi Kuppuswami for the State of Bihar.
\n    P.R. Das (B. Sen, with him) for the respondents in Cases
\nNos. 339, 319, 327,330 and 332 of 1951.\n<\/p>\n
    Sanjib K. Chowdhury. S.N. Mukherjee, S.K. Kapur for\t the
\nrespondents in Cases Nos. 309, 328, and a36 of 1951.
\n    Urukramdas\tChakravarty   for the respondents  in  Cases
\nNos. 326,337 and 344 of 1951.\n<\/p>\n
    Raghosaran Lal for the respondents in Cases Nos. 310.311
\nand 329 of 1951.\n<\/p>\n
    S  C.  Mazumdar for the respondent in Case\tNo.  313  of
\n1951.\n<\/p>\n
    S.\tMustarid and Jagadih Chandra Sinha for the  respond-
\nents in Cases Nos. 307, 313, 320, 321, and 322
\nof  1951.\n<\/p>\n
    Ray\t Parasnath  for the respondent in Case\tNo.  331  of
\n1951.\n<\/p>\n
    S.K.  Kapur\t for the petitioner in Petition No.  612  of
\n1951.\n<\/p>\n
    1952. May 2, 5. The Court delivered judgment as  follows
\n:–\n<\/p>\n
    PATANJALI SASTRI C.J.–These appeals and petitions which
\nfall into three groups raise the issue of the constitutional
\nvalidity  of three State enactments called   The Bihar\tLand
\nReforms\t Act, 1950 (Bihar Act XXX of 1950), The\t Chief\tJus-
\ntice, in his judgment, dealt with the above Cases and  Peti-
\ntion  and also Petitions Nos. 166, 228, 237, 245, 246,\t257,
\n268,  280,  to\t285, 287 to 289, 317, 318 and  487  of\t1951
\n(relating  to  the Madhya Pradesh Abolition  of\t Proprietary
\nRights\t(Estates  Mahals, Alienated Lands)  Act,  1950)\t and
\nCases Nos. 283 to 295 of 1951 (relating to the Uttar Pradesh
\nZamindari Abolition and Land Reforms Act, 1950).\n<\/p>\n
894<\/span><\/p>\n
    The\t Madhya\t Pradesh  Abolition  of\t Proprietary  Rights
\n(Estates,  Mahals,  Alienated  Lands) Act, 1950\t (No.  I  of
\n1951), and
\n     The Uttar Pradesh Zamindari Abolition and Land  Reforms
\nAct, 1950 (U. P. Act No. 1 of 1951) (hereinafter referred to
\nas  the\t Bihar\tAct, the Madhya Pradesh Act  and  the  Uttar
\nPradesh Act, respectively).\n<\/p>\n
    The common aim of these statutes, generally speaking, is
\nto  abolish  zamindaries and other proprietary\testates\t and
\ntenures\t in the three States aforesaid, so as  to  eliminate
\nthe  intermediaries  by means of compulsory  acquisition  of
\ntheir  rights  and interests, and to bring the\traiyats\t and
\nother occupants of lands in those areas into direct relation
\nwith  the Government.  The constitutionality of\t these\tActs
\nhaving\tbeen challenged in the respective State High  Courts
\non  various grounds, the Bihar Act was declared\t unconstitu-
\ntional and void on the ground that it contravened article 14
\nof  the\t Constitution,\tthe other grounds  of  attack  being
\nrejected,  while the other two Acts were adjudged  constitu-
\ntional\tand valid.  The appeals are directed  against  these
\ndecisions.   Petitions\thave also been filed in\t this  Court
\nunder article 32 by certain other zamindars seeking determi-
\nnation of the same issues. The common question which  arises
\nfor  consideration  in all these appeals  and  petitions  is
\nwhether\t the  three State Legislatures,\t which\trespectively
\npassed\tthe three impugned statutes,  were  constitutionally
\ncompetent to enact them, though some special points are also
\ninvolved in a few of these cases.\n<\/p>\n
    As\thas been stated, various grounds of attack were\t put
\nforward in the courts below, and, all of them  having\tbeen
\nrepeated   in  the memoranda of appeals and  the  petitions,
\nthey would have required consideration but for the amendment
\nof  the Constitution by the Constitution  (First  Amendment)
\nAct,  1951  (hereinafter referred to as the  Amendment\tAct)
\nwhich  was passed by the provisional Parliament\t during\t the
\npendency of these proceedings. That Act by inserting the new
\narticles 31-A and
\n895<\/span>
\n31-B purported to protect, generally, all laws providing for
\nthe acquisition of estates or interests therein, and specif-
\nically, certain statutes, including the three impugned Acts,
\nfrom  attacks based on article 13 read with  other  relevant
\narticles of Part III of the Constitution.  And the operation
\nof  these articles was made retrospective by  providing,  in
\nsection 4 of the Amendment Act, that article 3 I-A shall  be
\n“deemed always to have been inserted”  and. in article\t 31-
\nB, that none of the specified statutes “shall be deemed ever
\nto have become void”.  The validity of the Amendment Act was
\nin  turn challenged in proceedings instituted in this  Court
\nunder article 32 but was upheld in Sankari Prasad Singh\t Deo
\nv. Union of India and Stale of Bihar(1).  The result is that
\nthe impugned Acts can no longer be attacked on the ground of
\nalleged\t infringement of any of the rights conferred by\t the
\nprovisions of Part III.\n<\/p>\n
    It\twill be noted, however, that articles 31-A and\t31-B
\nafford\tonly limited protection against one ground of  chal-
\nlenge,\tnamely\tthat the law in\t question  is  “inconsistent
\nwith, or takes away or abridges any of the rights  conferred
\nby any provisions of this Part”. This is made further  clear
\nby  the\t opening’ words of article  3  I-A  “notwithstanding
\nanything  in  the foregoing provisions of this\tPart”.\t The
\nAmendment  Act thus provides no immunity from attacks  based
\non  the\t lack of legislative competence under  article\t246,
\nread with the entries in List II or List III of the  Seventh
\nSchedule  to  the Constitution to enact the  three  impugned
\nstatutes, as the Amendment Act did not in any way affect the
\nLists.\t Mr.  P.R. Das, leading counsel for  the  zamindars,
\naccordingly based his main argument in these proceedings  on
\nentry  36 of List Ii and entry 42 of List III which read  as
\nfollows:\n<\/p>\n
    “36. Acquisition  or ‘requisitioning of property, except
\nfor the purposes of the Union, subject to the provisions  of
\nentry 42 of List III.\n<\/p>\n
    42.\t Principles on which compensation for  property\t ac-
\nquired or requisitioned for the purposes of the Union
\n(1) [1952] S.C.R. 89.\n<\/p>\n
896<\/span><\/p>\n
or  of\ta  State or for any other public purpose  is  to  be
\ndetermined,  and the form and the manner in which such\tcom-
\npensation is to be given”.\n<\/p>\n
    The argument may be summarised thus. Entry 36 of List II
\nread  with article 246 (3) was obviously intended to  autho-
\nrise  a State Legislature to exercise the right\t of  eminent
\ndomain,\t that  is, the right of\t compulsory  acquisition  of
\nprivate\t property.   The  exercise of such  power  has\tbeen
\nrecognised  in the jurisprudence of all civilised  countries
\nas conditioned by public necessity and payment of  compensa-
\ntion.  All  legislation\t in this  country  authorising\tsuch
\nacquisition  of\t property from Regulation I of 1824  of\t the
\nBengal Code down to the Land Acquisition Act, 1894, proceed-
\ned  on that footing.  The existence of a public purpose\t and
\nan  obligation to pay compensation being thus the  necessary
\nconcomitants of compulsory acquisition of private  property,
\nthe  term “acquisition” must be construed as  importing,  by
\nnecessary implication, the two conditions aforesaid.  It  is
\na  recognised  rule for the construction of  statutes  that,
\nunless the words of the statute clearly 80 demand, a statute
\nis not to be construed so as to take away the property of  a
\nsubject\t without   compensation: Attorney-General   v.\t  De
\nKeyser’s  Royal\t Hotel(2). The power  to  take\tcompulsorily
\nraises\tby implication a right to payment:  Central  Control
\nBoard v. Cannon Brewery(2). The words “subject to the provi-
\nsions  of  entry 42 of List III” in entry 86  reinforce\t the
\nargument,  as  these words must be taken to  mean  that\t the
\npower to make a law with respect to acquisition of  property
\nshould\tbe exercised subject to the condition that such\t law
\nshould also provide for the matters referred to in entry 42,
\nin other words, a two-fold restriction as to public  purpose
\nand  payment of compensation (both of which are referred  to
\nin  entry 42) is imposed on the’ exercise of the  law-making
\npower  under entry 36.\tIn any case, the  legislative  power
\nconferred  under entry 42 is a power coupled with a duty  to
\nexercise  it for the benefit of the owners whose  properties
\nare compulsorily acquired
\n(1) [1920] A.C. 508, 542.\t  (2) [1919] A.C. 744.\n<\/p>\n
   897<\/span><\/p>\n
under a law made under entry 36.  For all these reasons\t the
\nState Legislatures, it was claimed, had no  power to make  a
\nlaw  for acquisition of property without fulfilling the\t two
\nconditions as to public purpose and payment of compensation.
\n   On  the basis of these arguments, counsel  proceeded\t to
\nexamine elaborately various provisions of the impugned\tActs
\nwith a view to show that the compensation which they purport
\nto  provide has, by “various shifts and contrivances”,\tbeen
\nreduced\t to an illusory figure\tas compared with the  market
\nvalue of the properties acquired.  The principles laid\tdown
\nfor the computation of compensation  operated  in reality as
\n“principles   of confiscation”,\t and  the enactment  of\t the
\nstatutes was in truth a “fraud on the Constitution”, each of
\nthem  being  a colourable legislative expedient\t for  taking
\nprivate properties without payment of compensation in viola-
\ntion  of the Constitution, while pretending to\tcomply\twith
\nits  requirements. Nor were these statutes enacted  for\t any
\npublic purpose; their only purpose and effect was to destroy
\nthe  class  of\tzamindars and tenure-holders  and  make\t the
\nGovernment  a  “super-landlord”.  While such  an  aim  might
\ncommend\t itself\t as  a proper policy to be  pursued  by\t the
\npolitical party in power, it could not, in law, be  regarded
\nas a public purpose.\n<\/p>\n
    Mr.\t Somayya, who appeared for some of the zamindars  in
\nthe Madhya Pradesh group of cases, while adopting the  argu-
\nments of Mr. Das, put forward an additional ground of objec-
\ntion.  He argued that the impugned Acts -were not passed  in
\naccordance  with the procedure prescribed in article 31\t (3)
\nwhich provides
\n    “No such law as is referred to in clause (2) made by the
\nLegislature  of a State shall have effect unless  such\tlaw.
\nhaving\tbeen reserved for the consideration  the  President,
\nhas received his assent”.\n<\/p>\n
    Learned  counsel stressed the words “law” and  “legisla-
\nture”  and submitted that, inasmuch as the legislature of  a
\nState included the Governor (article
\n116<\/span>
\n898<\/span>\n<\/p>\n
168)  and a bill could become a law only after the  Governor
\nassented  to it under article 200, clause (3) of article  31
\nmust  be taken to require that a State law authorising\tcom-
\npulsory\t acquisition of property should receive\t the  Gover-
\nnor’s as well as the President’s assent, the former to\tmake
\nit  a law and the latter to give it “effect”.  As the  rela-
\ntive  bills were reserved in each case by the Governor\tcon-
\ncerned\tafter  they were passed by the House  or  Houses  of
\nLegislature,  as the case may be, without giving his  assent
\nunder article 200. the statutes did not satisfy the require-
\nments of article 31 (3) and so could not have “effect”. This
\nground of attack, it was claimed, was not excluded by  arti-
\ncle 31-A or article 31-B as it was not based on infringement
\nof fundamental rights.\n<\/p>\n
    Dr. Ambedkar, who appeared for some of the zemindars  in
\nthe Uttar Pradesh batch of cases, advanced a different\tline
\nof argument. He placed no reliance upon entry 36 of List  II
\nor entry 42 of List III. He appeared to concede what Mr. Das
\nso  strenuously contested, that those entries, concerned  as
\nthey  were with the grant of power to the State\t Legislature
\nto  legislate  with respect to\tmatters\t specified  therein,
\ncould  not be taken, as a matter of construction, to  import
\nan obligation to pay compensation.  But he maintained that a
\nconstitutional prohibition against compulsory acquisition of
\nproperty without public’ necessity and payment of  compensa-
\ntion  was deducible from what he called the “spirit  of\t the
\nConstitution”, which, according to him, was a valid test for
\njudging\t the constitutionality of a statute   The  Constitu-
\ntion,  being avowedly one for establishing liberty,  justice
\nand  equality  and a government of a free people  with\tonly
\nlimited powers, must be held to contain an implied  prohibi-
\ntion against taking private property without just  compensa-
\ntion  and in the absence of a public purpose.  He relied  on
\ncertain American decisions and text-books as supporting\t the
\nview  that  a constitutional prohibition can be\t derived  by
\nimplication  from  the spirit of the Constitution  where  no
\nexpress\t  prohibition\thas  been enacted  in  that  behalf.
\nArticles 31-A and 31-B barred
\n899<\/span>
\nonly objections based on alleged infringements of the funda-
\nmental rights conferred by Part III, but if, from the  other
\nprovisions thereof, it could be inferred that  there must be
\na public purpose and payment of compensation before  private
\nproperty could be compulsorily acquired by the State,  there
\nwas nothing in the two articles aforesaid to preclude objec-
\ntion  on  the ground that the impugned Acts do\tnot  satisfy
\nthese requirements and are, therefore, unconstitutional.
\n    In\taddition to the aforesaid grounds of  attack,  which
\nwere common to all the three impugned statutes, the validity
\nof  each of them or of some specific provisions thereof\t was
\nalso challenged on some special grounds. It will be  conven-
\nient  to deal with them after disposing of the main  conten-
\ntions  summarised  above which are common to all  the  three
\nbatches of cases.\n<\/p>\n
    These  contentions\tare,  in my judgment  devoid  of  of
\nsubstance  and force and I have no hesitation  in  rejecting
\nthem.\tThe  fact of the matter is the\tzemindars  lost\t the
\nbattle in the last round when this Court upheld the  consti-
\ntutionality  of\t the  Amendment Act  which  the\t Provisional
\nParliament  enacted  with  the object,\t among\t others,  of
\nputting\t an end to this litigation. And it is no  disparage-
\nment  to their learned counsel to say that what remained  of
\nthe  campaign  has been fought with such weak  arguments  as
\novertaxed ingenuity could suggest.\n<\/p>\n
    It\twill  be  convenient here to set  out  the  material
\nprovisions of the Constitution on which the arguments before
\nus have largely turned.\n<\/p>\n
    Article    31    (2).    No\t   property    movable\t  or
\nimmovable  ………  shall be acquired for public  purposes
\nunder  any  law\t authorising   ………   such\t acquisition
\nunless\tthe law provides for compensation for  the  property
\nacquired  and either. fixes the amount of  compensation\t  or
\nspecifies   the principles on which and the manner in  which
\nthe compensation is to be determined and given.
\n    (3) No such law as is referred to in clause (2) made  by
\nthe Legislature of a State shall have effect unless
\n900<\/span>
\nsuch law, having been reserved for the consideration of\t the
\nPresident, has received his assent.\n<\/p>\n
    (4)\t If  any bill pending at the  commencement  of\tthis
\nConstitution in the Legislature of a State has, after it has
\nbeen  passed  by  such Legislature, been  reserved  for\t the
\nconsideration of the President and has received his  assent,
\nthen, notwithstanding anything in this Constitution, the law
\nso assented to shall not be called in question in any  court
\non  the ground that it contravenes the provisions of  clause
\n(2).\n<\/p>\n
 (5) Nothing in clause (2) shall affect(a) The provisions of
\nany existing law other than a law to which the provisions of
\nclause (6) apply, or\n<\/p>\n
    (b) the provisions of any law which the State may  here-
\nafter make-\n<\/p>\n
    (i)\t for the purpose of imposing or levying any  tax  or
\npenalty, or\n<\/p>\n
    (ii)  for the promotion of public health or the  preven-
\ntion of danger to life or property, or\n<\/p>\n
    (iii) in pursuance of any agreement entered into between
\nthe Government of the Dominion of India or the Government of
\nIndia and the Government of any other country, or otherwise,
\nwith  respect  to  property declared by law  to\t be  evacuee
\nproperty  ……\n<\/p>\n
    31-A.   Saving  of\tlaws providing\tfor  acquisition  of
\nestates, etc.–(1) Notwithstanding anything in\tthe  forego-
\ning provisions of this Part no law providing for the  acqui-
\nsition\tby the State of any estate or of any rights  therein
\nor for the extinguishment or modification of any such rights
\nshall  be deemed to be void on the ground that it is  incon-
\nsistent\t with, or takes away or abridges any of\t the  rights
\nconferred by any provisions of this Part:  …….
\n    31-B.   Validation\tof certain  Acts  and  Regulations.-
\nWithout\t prejudice to the generality of the provisions\tcon-
\ntained\tin  article 31-A none of the  Acts  and\t Regulations
\nspecified  in the Ninth Schedule nor any of  the  provisions
\nthereof\t shall be deemed to be void, or ever to have  become
\nvoid, on the ground that such Act,
\n901<\/span>
\nRegulation or provision is inconsistent with, or takes\taway
\nor abridges any of the rights conferred by any provisions of
\nthis  Fart,  and  notwithstanding any  judgment,  decree  or
\norder of any court or tribunal to the contrary, each of\t the
\nsaid   Acts and Regulations shall, subject to the  power  of
\nany competent Legislature to repeal or amend it, continue in
\nforce.\n<\/p>\n
    It\twill be seen that the scope of article 31 (4) is  at
\nonce  narrower\tand  wider than that of\t article  31-A;\t the
\nformer\thas application only to statutes which were  pending
\nin the legislature at the commencement of the  Constitution,
\nwhereas\t the  latter  is subject  to  no  such\trestriction.
\nAgain,\tarticle\t 31 (4)\t excludes attack only on the  ground
\nof contravention of article 31 (2), while article 3 I-A bars
\nobjections  based  on contravention of other  provisions  of
\nPart  III as well, such as articles 14 and 19.\tThis  indeed
\nwas the reason for the enactment of articles 31-A and  31-B,
\nas the words of exclusion in article 31 (4) were found inapt
\nto  cover objections based on contravention of\tarticle\t 14.
\nOn  the\t other hand, the law referred to in article  31\t (4)
\ncovers\tacquisition of any kind of property,  while  article
\n31-A relates only to the acquisition of a particular kind of
\nproperty, viz., estates and rights therein, and what is more
\nimportant  for our present purpose, the non obstante  clause
\nin  article  31 (4) overrides all other\t provisions  in\t the
\nConstitution  including\t the List of the  Seventh  Schedule,
\nwhereas\t a law which falls within the purview of  article  a
\n1-A  could  only prevail over “the foregoing  provisions  of
\nthis Part”. Now, the three impugned statutes fall within the
\nambit  of  both article 31 (4) and articles 31-A  and  31-B.
\nPutting\t aside\tthe latter articles for the  moment,  it  is
\nplain  that, under article 31 (4), the three impugned  stat-
\nutes  are protected from attack in any court on\t the  ground
\nthat they contravene the provisions of article 31(2).  These
\nprovisions, so far as they are material here, are (i) that a
\nlaw with respect to acquisition of property should authorize
\nacquisition  only  for\ta public purpose and (ii) that\tsuch
\nlaw  should  provide for compensation, etc. Mr.\t Das,  while
\nadmitting that
\n902<\/span>\n<\/p>\n
(ii) was a “provision” of article 31 (2), submitted that (i)
\nwas  not.   According to him clause (2)assumed but  did\t not
\n“provide”  that acquisition should be authorised only for  a
\npublic\tpurpose.  I cannot accept that view. In my  opinion,
\nthe  clause seeks also to impose a limitation in  regard  to
\npublic\tpurpose.   The clause was evidently worded  in\tthat
\nform  as it was copied (with minor variations) from  section
\n299  (2)  of the Government of India Act,  1935,  which\t was
\nundoubtedly designed to give effect to the recommendation of
\nthe  Joint  Parliamentary Committee in para.  369  of  their
\nReport\tthat two conditions should be imposed on  expropria-
\ntion  of  private  property:  “We think\t it  (the  provision
\nproposed)  should secure that legislation  expropriating  or
\nauthorising  the  expropriation of the property\t of  private
\nindividuals should be lawful only if confined to  expropria-
\ntion  for public purpose and if compensation  is  determined
\neither in the first instance or in appeal by some  independ-
\nent  authority”. It is thus clear that section 299  (2)\t was
\nintended  to secure fulfilment of two conditions subject  to
\nwhich alone legislation authorising expropriation of private
\nproperty  should be lawful, and it seems reasonable to\tcon-
\nclude  that  article 31 (2) was also intended to impose\t the
\nsame  two  conditions on legislation  expropriating  private
\nproperty.    In\t other\twords, article 31 (2)must be  under-
\nstood as also providing that legislation authorising  expro-
\npriation of private property should be lawful only if it was
\nrequired  for  a public purpose and provision was  made\t for
\npayment of compensation.  Indeed if this were not so,  there
\nwould be nothing in the Constitution to prevent\t acquisition
\nfor  a non-public or private purpose and without payment  of
\ncompensation–an  absurd result. It cannot be supposed\tthat
\nthe  framers of\t the Constitution, while expressly  enacting
\none of the two well-established restrictions on the exercise
\nof the right of eminent domain, left the other to be import-
\ned  from the common law.  Article 81 (2) must therefore,  be
\ntaken to provide for both the limitations in express  terms.
\nAn attack on the
\n  903<\/span>
\nground of contravention of these provisions implies that the
\nlaw in question authorises acquisition without reference  to
\na public purpose and without payment of compensation.\tThis
\nwas  precisely the objection raised both by Mr. Das and\t Dr.
\nAmbedkar  to  the constitutional validity  of  the  impugned
\nstatutes, and such objection really amounts to calling those
\nlaws  in  question on the ground that they  contravened\t the
\nprovisions of article 31 (2), though learned counsel stoutly
\ndenied\tthat they were relying on the provisions of  article
\n31(2).\t The denial, however, seems to me to be based  on  a
\nquibbling  distinction\twithout a difference  in  substance.
\nTheir  main  attack was really grounded on  the\t absence  of
\nthese  two  essential  prerequisites  of  valid\t legislation
\nauthorising acquisition of private property, though Mr.\t Das
\nwould  deduce them by implication from entry 36 of  List  II
\nand  entry  42\tof List III, while Dr.\tAmbedkar  sought  to
\nderive\tthem from the spirit of the Constitution.  But\tthis
\nis only a form of stating the objection which, in substance,
\nis  that  the statutes are bad because of the absence  of  a
\npublic\tpurpose and the omission to provide for a just\tcom-
\npensation.   This, in fact, was the burden of  the  argument
\nbefore us. If, then, these two grounds of attack fall within
\nthe  purview  of article 31(4), the  words  “notwithstanding
\nanything  in  this  Constitution” are apt  to  exclude\tsuch
\ngrounds howsoever they are derived–whether from the entries
\nin the legislative Lists or from the spirit of the Constitu-
\ntion-for  both alike are covered by those words. Indeed,  if
\nthe  objection based on the absence of a public purpose\t and
\nof a provision for just compensation were still to be  open,
\nclause\t(4) of article 31  would be meaningless\t surplusage.
\nIt  is\tobvious that that clause was specially\tdesigned  to
\nprotect\t the  impugned\tstatutes and  other  laws  similarly
\nenacted\t from  attack  in a court of law  on  the  aforesaid
\ngrounds\t and, if they were nevertheless to be considered  as
\nnot being within the protection, it is difficult to see what
\nthe  use of article 31 (4) would be.  Learned  counsel\twere
\nunable to suggest any.\tThe fact is that article 31 (4) was
\n904<\/span>
\ndesigned  to  bar the jurisdiction of  courts  to  entertain
\nobjections to the validity of a certain class of  enactments
\non  the\t two-fold ground referred to above,  and  its  whole
\npurpose\t would stand  defeated if the zemindars’  contention
\nwere to prevail.\n<\/p>\n
    Even  if  it were open to the court to   consider  these
\ngrounds\t of objection, they are, in my\topinion,  unsustain-
\nable.\tAs pointed out already, article 31-A operates as  an
\nexception  to article 31 (2) read with article 13,  only  in
\nrespect\t of  laws authorising acquisition of “estates”\t and
\nrights\ttherein, and this exception is to be deemed to\thave
\nbeen part of the Constitution from its commencement. But  it
\nhas no application to laws authorising acquisition of  other
\nkinds of property and, as regards these, the requirements as
\nto  public  purpose and payment of  compensation  are  still
\nenforced by the express provisions of article 31 (2). In the
\nface  of the limitations on the State’s power of  compulsory
\nacquisition  thus incorporated in the body of the  Constitu-
\ntion, from which “estates” alone are excluded, it would,  in
\nmy  opinion, be contrary to elementary canons  of  statutory
\nconstruction to read, by implication, those very limitations
\ninto entry 36 of List II. alone or in conjunction with entry
\n42  of List III of the Seventh Schedule, or to\tdeduce\tthem
\nfrom  “the  spirit of the Constitution”, and that,  too,  in
\nrespect of the very properties excluded.\n<\/p>\n
    It\tis true that under the common law of eminent  domain
\nas  recognised in the jurisprudence of all  civilized  coun-
\ntries,\tthe State cannot take ‘the property of\tits  subject
\nunless\tsuch property is required for a public\tpurpose\t and
\nwithout compensating the owner for its loss  But, when these
\nlimitations  are  expressly provided for and it\t is  further
\nenacted\t that  no  law shall be made  which  takes  away  or
\nabridges these safeguards, and any such law, if made,  shall
\nbe void, there can be no room for implication, and the words
\n“acquisition of property” must be understood in their  natu-
\nral sense of the act of acquiring property, without  import-
\ning into  the phrase an obligation to pay
\n 905<\/span>
\ncompensation or a condition as to the existence of a  public
\npurpose.   The entries in the Lists of the Seventh  Schedule
\nare  designed to define and delimit the respective areas  of
\nlegislative competence of the Union and State  Legislatures,
\nand such context is hardly appropriate for the imposition of
\nimplied restrictions on the exercise of legislative  powers,
\nwhich  are ordinarily matters for positive enactment in\t the
\nbody of the Constitution.\n<\/p>\n
    There are indications in article 31 itself to show\tthat
\nthe expression “acquisition of property in entry 36 of\tList
\nII does not in itself carry any obligation to  pay compensa-
\ntion.\tClause (4) of that article postulates a “law” autho-
\nrising\tacquisition  of\t  property   but   contravening\t the
\nprovisions  of clause (2), that is without a public  purpose
\nor payment of compensation.’ Similarly, clause (5)(b), which
\nexcepts\t certain categories of “laws” from the operation  of
\nclause\t(2), contemplates laws being made without  a  public
\npurpose or payment of compensation. Such laws can be made by
\na  State Legislature only under entry 36 which must,  there-
\nfore,  be taken to confer a legislative power unfettered  by
\nany  implied restrictions.  It was suggested that  the\tlaws
\nreferred to in sub-clause (b) of clause (5) are laws made in
\nexercise  of  the taxing power or the police  power  of\t the
\nState  as the case may be, and that the sub-clause  was\t in-
\nserted\tonly  by way of abundant caution. This is  hardly  a
\nsatisfactory  answer. Whatever may be the position as  to  a
\ntaxing\tlaw, in regard to the source of\t legislative  power,
\nlaws  under heads (2) and (3) of subclause (b)\tmust  neces-
\nsarily be referable to, and derive their competence from the
\nlegislative  power under entry 36 of List II, in so  far  as
\nthey  purport to authorise acquisition of any property,\t for
\nthe  police power of the State is only the general power  to
\nregulate  and  control the exercise of\tprivate\t rights\t and
\nliberties  in  the interests of the community and  does\t not
\nrepresent any specific head of legislative power.  And\teven
\nthat answer is not available to Mr. Das in regard to  clause
\n(4).\n<\/p>\n
117<\/span>
\n906<\/span><\/p>\n
    Nor is the position improved for the zemindars by  read-
\ning  entry 36 of List II and entry 42of List  III  together.
\nIt  was\t said that the words “subject to the  provisions  of
\nentry  42 in List III” must be taken to mean that  the\tlaw-
\nmaking power under entry 36 could only be exercised  subject
\nto  the two conditions as to public purpose and\t payment  of
\ncompensation,  both  of which are referred to in  entry\t 42.
\nThose  words, in my opinion, mean no more than that any\t law
\nmade under entry 36 by a State Legislature can be  displaced
\nor  overridden by the Union Legislature making a  law  under
\nentry 42 of List III.  That they cannot bear the interpreta-
\ntion sought to be put upon them by Mr. Das is clear from the
\nfact  that similar words do not occur in entry 33 of List  I
\nwhich  confers on Parliament the power of making  laws\twith
\nrespect to acquisition or requisitioning of property for the
\npurposes  of the Union.\t For, if the restrictive  conditions
\nas  to public purpose and payment of compensation are to  be
\nderived\t only from those words, then it must follow that  in
\nthe absence of those words in entry 33,\t Parliament can make
\nlaws  authorising acquisition or requisitioning of  property
\nwithout\t a public purpose and a provision for  compensation.
\nNo  reason was suggested why parliamentary legislation\twith
\nrespect\t  to acquisition  or  requisitioning of property  is
\nto  be\tfree from such restrictive  conditions\twhile  State
\nlegislation should be subject to them. The fact is that\t the
\nlaw-making  power of both Parliament and State\tLegislatures
\ncan be exercised only subject to the aforesaid two  restric-
\ntions,\tnot by reason of anything contained in\tthe  entries
\nthemselves,  but  by reason of the  positive  provisions  of
\narticle 31 (2), and, as laws falling under article 31  (4)or
\nunder articles 31-A and 31-B cannot be called in question in
\na  court  of law for non-compliance with  those\t provisions,
\nsuch  laws  cannot be struck down  as  unconstitutional\t and
\nvoid.\n<\/p>\n
    It\twas further contended that the power to make  a\t law
\nunder entry 42 of List III was a power coupled with a  duty,
\nbecause such law was obviously intended.\n<\/p>\n
907<\/span><\/p>\n
for  the benefit of the expropriated owners, and  where\t the
\nLegislature  has authorised such expropriation, it was\talso
\nbound to exercise the power of making a law laying down\t the
\nprinciples  on which such owners should be  compensated\t for
\ntheir loss.  Reliance was placed in support of this somewhat
\nnovel contention on the well-known case of Julius v.  Bishop
\nof  Oxford.(1) That case, however, has no application  here.
\nWhile certain powers may be granted in order to be exercised
\nin favour of certain persons who are intended to be benefit-
\ned  by their exercise, and on that account may well  be\t re-
\ngarded\tas  coupled  with a duty to exercise  them  when  an
\nappropriate  occasion for their exercise arises,  the  power
\ngranted\t to a legislature to make a law with respect to\t any
\nmatter\tcannot\tbe brought under that  category,  It  cannot
\npossibly  have been intended that the legislature should  be
\nunder an obligation to make a law in exercise of that power,
\nfor no obligation of that kind can be enforced by the  court
\nagainst a legislative body.\n<\/p>\n
   Mr. Somayya’s  argument  based  on clause (3) of  article
\n31,   to which reference has been made earlier,\t is  equally
\nuntenable.   It\t is true that the “Legislature” of  a  State
\nincludes  the  Governor and that a  bill  passed  by\tsuch
\nLegislature cannot become a law until it receives the Gover-
\nnor’s  assent.\t Article 200, however, contemplates  one  of
\nthree  courses being adopted by the Governor when a bill  is
\npresented  to him after it is passed by the House or  Houses
\nof  Legislature: (1) to give his assent, or (2) to  withhold
\nassent, or (3) to reserve the bill for the consideration  of
\nthe  President.\t  The first proviso, to that  article  deals
\nwith  a\t situation where the Governor is bound to  give\t his
\nassent and has no relevance here.  The second proviso  makes
\nreservation  compulsory where the bill would, “if it  became
\nlaw”,  derogate from the powers of the High Court, but\tsuch
\nreservation, it is important to note, should be made without
\nthe  Governor himself giving his assent to the bill.  It  is
\nsignificant that the article does not contemplate the
\n(1) L.R. 5 H.L. 214.\n<\/p>\n
908<\/span><\/p>\n
Governor giving his assent and thereafter, when the bill has
\nbecome\ta full-fledged law, reserving it for the  considera-
\ntion  of the President.\t Indeed, the Governor is  prohibited
\nfrom giving his assent where such reservation by him is made
\ncompulsory.  The Constitution would thus seem to contemplate
\nonly  “bills” passed by the House or Houses  of\t Legislature
\nbeing  reserved for the consideration of the  President\t and
\nnot  “laws”  to\t which the Governor has\t already  given\t his
\nassent.\t It was said that article 31 (3) provides a  special
\nsafeguard which, in order to ensure that no hasty or  unjust
\nexpropriatory legislation is passed by a State\tLegislature,
\nrequires for such legislation the assent of both the  Gover-
\nnor  and the President, and, to make this clear, the  words,
\n‘law”  and  “legislature” were deliberately used  in  clause\n<\/p>\n
(a).  I am unable to agree with this view.  The term “legis-
\nlature” is not always used  in the Constitution as including
\nthe Governor, though article 168 makes him a component\tpart
\nof the State Legislature.  In article 173, for instance, the
\nword is clearly used in the sense of the ,,Houses of  legis-
\nlature”\t and excludes the Governor. There are  other  provi-
\nsions also where the word is used in contexts which  exclude
\nthe Governor.  Similarly the word “law” is sometimes loosely
\nused  in referring to a bill. Article 31 (4), for  instance,
\nspeaks\tof  a  ”bill” being reserved  for  the\t President’s
\nassent\t“after it has been passed” by the “legislature of  a
\nState”\tand of “the law so assented to.”  If the  expression
\n“passed\t by the legislature” were taken to mean\t “passed  by
\nthe Houses of the legislature and assented to by the  Gover-
\nnor”  as  Mr.  Somayya would have it  understood,  then,  it
\nwould  cease to be a “bill” and could no longer be  reserved
\nas  such.  Nor is the phrase “law so assented  to”  strictly
\naccurate,  as  the previous portion of the clause  makes  it
\nclear  that what is reserved for the President’s assent\t and
\nwhat  he assents to is a “bill” and not a law.\t The  phrase
\nobviously  refers to what has become a law  after  receiving
\nthe   assent  of  the President.  Similarly, article 31\t (3)
\nmust, in any judgment, be understood as
\n909<\/span>
\nhaving\treference to what,  in\thistorical sequence,  having
\nbeen passed by the House or Houses of the State\t Legislature
\nand  reserved by the Governor for the consideration  of\t the
\nPresident  and assented to by the latter, has thus become  a
\nlaw.  If  it was intended that such a law  should  have\t the
\nassent\tof  both the Governor and the President,  one  would
\nexpect\tto find not only a more clear or explicit  provision
\nto  that effect, but also some reference in article  200  to
\nthe Governor’s power to reserve a measure for the considera-
\ntion of the President after himself assenting to it.  On the
\nother hand, as we have seen, where reservation by the Gover-
\nnor  is\t made obligatory, he is prohibited from\t giving\t his
\nassent.\n<\/p>\n
    In\tthe view I have expressed above that the  objections
\nbased  on  the-lack of a public purpose and the\t failure  to
\nprovide\t for payment of just compensation are  barred  under
\narticle 31 (4) and are also devoid of of merits, it  becomes
\nunnecessary to consider what is a public purpose and whether
\nthe  acquisition  authorised by the impugned  statutes\tsub-
\nserves\tany public purpose.  Nor is it necessary to  examine
\nwhether\t the  scheme  of compensation provided\tfor  by\t the
\nstatutes is so illusory as to leave the expropriated  owners
\nwithout\t any real compensation for loss of their property.
\n    Turning now to the special points arising in  particular
\ncases,\tit  was urged by Mr. Das that section 4 (b)  of\t the
\nBihar  Act, which provides that all arrears of rent,  royal-
\nties and cesses due for any period prior to the date of\t the
\nvesting\t of  the estates in Government “shall  vest  and  be
\nrecoverable by the State” was unconstitutional and void.  In
\nthe first place, there was no public purpose to be served by
\nthe acquisition of such property.  The Government  evidently
\nlacked funds for the payment of even the illusory  compensa-
\ntion provided for in the Act, and accordingly, hit upon\t the
\ndevice\t of acquiring  these arrears on payment of  only  50
\nper cent. of their value as provided in section 24.  Raising
\nfunds
\n910<\/span>
\nfor  augmenting\t the  Treasury could not be  regarded  as  a
\npublic\tpurpose such as would justify expropriation of\tpri-
\nvate  property\tSecondly, it was said that  these  ‘arrears’
\nwould represent so much money when realised, and money could
\nnot be the subject of compulsory acquisition as the  obliga-
\ntion to pay compensation would practically turn such  acqui-
\nsition into a forced loan.  Nor could the payment of 50\t per
\ncent of the face value of the arrears be regarded as compen-
\nsation for the loss of the total arrears, for, refund of one
\nhalf of a sum of money taken away could never make good\t the
\nloss of the. balance.  The argument proceeds on a misconcep-
\ntion.  Whatever may be the position as regards the  acquisi-
\ntion  of money as such, it is not correct to say that a\t law
\nmade under entry 36 of List II cannot authorise\t acquisition
\nof  choses in action like arrears of rent due from the\tten-
\nants  which are covered by the term “property” used in\tthat
\nentry  and in article 31. It is equally fallacious to  argue
\nthat  a payment in cash or ‘in Government bonds of half\t the
\namount of such arrears leaves the zemindar without compensa-
\ntion  for  the balance.\t It is unrealistic  to\tassume\tthat
\narrears\t which\thad remained uncollected over  a  period  of
\nyears  during which the zemindar as landlord had the  advan-
\ntage  of summary remedies and other facilities\tfor  collec-
\ntion,  represented  so much money or money’s  worth  in\t his
\nhands  when he was to cease to be a landlord and to have  no
\nlonger\tthose  remedies and facilities.\t When  allowance  is
\nmade for doubtful and irrecoverable arrears and the  trouble
\nand  expense involved in the collection of the rest of\tthem
\nthe payment of 50 per cent. of the face value of the  entire
\narrears\t must, as it seems to me, be  considered  reasonable
\nand  fair  compensation for taking them\t over.\tIndeed,\t the
\ncontention  leaves one almost wondering what  advantage\t the
\nzemindars would gain by seeking to overthrow a provision  in
\nthe  Act which may well prove beneficial to  them.   However
\nthat  may be, for the reasons already indicated, article  31
\n(4)  bars a challenge on these two grounds, and\t the  objec-
\ntions to section 4 (b) cannot be entertained.\n<\/p>\n
    911<\/span><\/p>\n
    An\tattack was also directed against section 28 (1)\t (f)
\nwhich provides for a deduction on a percentage basis out  of
\nthe gross assets as “cost of works of benefit to the raiyats
\nof such estate or tenure”, in ascertaining the net assets on
\nwhich  compensation is to be based. It was said\t that  there
\nwas no evidence to show that it was usual for the  zemindars
\nto incur such expenditure, and that the deduction was a mere
\ncontrivance  to\t reduce\t the compensation  payable  for\t the
\nacquisition of their estates.  The provision for such deduc-
\ntion  was therefore a fraud on the Constitution.  The  argu-
\nment, however, overlooks the well-established obligation  of
\nthe  Zemindars to maintain and repair the  irrigation  tanks
\nand channels in the villages comprised in their estates.  As
\nthe  Privy Council pointed out in The Madras Railway Co.  v.
\nZemindar  of Carvatenagaram(1) “the zemindars have no  power
\nto  do\taway with these tanks in the  maintenance  of  which
\nlarge  numbers\tof people are interested, but  are  charged,
\nunder  Indian law, by reason of their tenure, with the\tduty
\nof  preserving and repairing them”.  These  are,  obviously,
\nthe works of benefit to the raiyats of the estate, and their
\ncost,  which the zemindars are thus under an  obligation  to
\nbear,  is a perfectly legitimate deduction in computing\t the
\nnet  assets  of the estate.  If the zemindars  had,  in\t the
\npast, neglected this duty, that does not affect the proprie-
\nty  of\tthe deduction before  determining  the\tcompensation
\npayable to them.  It is, therefore, idle to say that it is a
\nmere contrivance for reducing the compensation.\t This apart,
\nif,  as I have endeavoured to show, payment of\tcompensation
\nis  not\t a  justiciable issue in the case  of  the  impugned
\nstatutes,  having regard to articles 31 (4),31-A and 3\t1-B,
\nit  is not open to the court to inquire whether a  deduction
\nwhich  results in reducing the compensation  is\t unwarranted
\nand therefore a fraud on the Constitution.
\n    LastLy, Mr. Das turned his attack on section 32 (2) read
\nwith section 43 (2) (p).  Under the former provision compen-
\nsation was payable in cash or in bonds or partly in cash and
\npartly in bonds.  The bonds
\n(1) (1874) 1 I.A, 364,
\n912<\/span>
\nwere to be either negotiable or non-negotiable and nontrans-
\nferable and were payable in forty equal instalments.   Power
\nwas given to the State Government under section 43 (2)(p) to
\nframe rules providing for “the proportion in which compensa-
\ntion  shall  be payable in cash and in bonds and the  manner
\nof  payment  of such compensation”.  It\t was   argued  that,
\nwhile  the Constitution conferred power on the\tlegislatures
\nunder entry 42 of List III to make laws with respect to\t the
\nprinciples  on which compensation for property acquired\t was
\nto  be\tdetermined and\tthe  form and the manner   in  which
\nsuch  compensation was to be given, it was   not   competent
\nfor the Bihar Legislature to delegate this essential  legis-
\nlative power to the executive government. Section 43  (2)(p)
\nbeing  thus void and inoperative, section 32 (2)  must\talso
\nfall  to the ground, being vague and incapable by itself  of
\nbeing  given effect to, and, as payment of compensation\t was
\nan inextricable part of the scheme of acquisition under\t the
\nAct,  the entire Act must go.  I see no force in this  argu-
\nment.\tThe legislature has applied its mind to the form  in
\nwhich  compensation has to be paid and has fixed the  number
\nof  equal instalments in which it should be paid.   It,\t has
\nalso  provided for payment of interest on  the\tcompensation
\namount in the meantime.\t The proportion in which the compen-
\nsation could be paid in cash and in bonds and the  intervals
\nbetween\t the instalments have been left to be determined  by
\nthe executive government as those must necessarily depend on
\nthe financial resources of the State and the availability of
\nfunds in regard to which the executive government alone\t can
\nhave  special means of knowledge. By no standard of  permis-
\nsible delegation can the vesting of such limited  discretion
\nby a legislature in an administrative body be held  incompe-
\ntent.\tThe same remark applies to the delegation  of  rule-
\nmaking powers in regard to payment of compensation under the
\nother two Acts.\n<\/p>\n
    It was contended by Mr. Somayya that the Madhya  Pradesh
\nAct was not duly passed as no question was put by the Speak-
\ner, at the third reading of the bill
\n913<\/span>
\non the motion that it be passed into law, as required by the
\nprovisions  of rule “20 (1) of the rules governing  legisla-
\ntive business then in force, and that the omission was not a
\nmere  “irregularity of procedure” which the court is  barred
\nfrom  enquiring into under article 212 (1)of  the  Constitu-
\ntion.  Rule 20 (1) reads as follows:\n<\/p>\n
    “A\tmatter requiring the decision of the Assembly  shall
\nbe  decided by means of a question put by the Speaker  on  a
\nmotion made by a member”.\n<\/p>\n
    What  appears  to  have happened is this.\tOne  of\t the
\nMinisters  moved that “The C.P. and Berar Abolition of\tPro-
\nprietary  Rights  (Estates, Mahals, Alienated  Lands)  Bill,
\n1949, (No. 64 of 1949) as considered by the House be  passed
\ninto  law”.   Thereupon the Speaker read the motion  to\t the
\nHouse,\tand this was followed by several speeches  welcoming
\nthe  measure,  amid general acclamation in the House,  as  a
\ngreat  boon to the tillers of the soil. The official  report
\nof  the\t proceedings prepared by the  Secretary\t under\trule
\n115(1),\t however,  did not record that the Speaker  put\t the
\nquestion in the usual form:  “The question is etc.” and that
\nthe  motion  was carried.  It was argued that  the  official
\nreport\tbeing the only “authentic record of the\t proceedings
\nof  the Assembly” under rule 115(2), it must be taken to  be
\nconclusively established that the motion was not put to\t the
\nHouse  and carried by it. There is, in my opinion,  no\tsub-
\nstance\tin  the\t objection.  The original  Bill\t signed\t and
\nauthenticated by the Speaker was produced before us, and  it
\ncontains  an  endorsement  by  the  speaker  that  the\tBill
\nwas.passed by the Assembly on 5th April, 1950. The  endorse-
\nment was signed by the Speaker on 10th May, 1950. The  offi-
\ncial report of the proceedings appears to have been prepared
\non  21st  June, 1950, and was signed by the Speaker  on\t 1st
\nOctober, 1950. When he signed the report the Speaker did not
\napparently notice the omission as to the motion having\tbeen
\nput  and carried. Such omission cannot, in the face  of\t the
\nexplicit  statement by the Speaker endorsed on the Bill,  be
\ntaken
\n118<\/span>
\n914<\/span>
\nto  establish  that the Bill was not put to  the  House\t and
\ncarried by it.\tIn any case, the omission to put the  motion
\nformally  to  the House, even if true, was, in\tthe  circum-
\nstances,  no more than a mere irregularity of procedure,  as
\nit  is\tnot disputed that the overwhelming majority  of\t the
\nmembers\t present and voting were in favour of  carrying\t the
\nmotion and no dissentient voice was actually raised.
\n    Mr.\t Somayya raised a further contention that in  regard
\nto  the malguzari lands covered by the Madhya  Pradesh\tAct,
\narticles  31-A\tand 31-B could be of no\t assistance  to\t the
\nGovernment,  as\t such  lands are not  “estates”\t within\t the
\nmeaning\t of  clause  (2) of article  31-A  with\t the  result
\nthat .the objection based on article 14 as to discrimination
\nin  the matter of payment of compensation must\tprevail.  It
\nwill be recalled that the High Court of Patna held the Bihar
\nAct  unconstitutional as being discriminatory  in  providing
\nfor  payment  of compensation, and it was to  overcome\tthat
\ndifficulty  that articles 31-A and a1-B were inserted in the
\nConstitution.\tIt  was conceded by  the  learned  Advocate-
\nGeneral\t of Madhya Pradesh that these malguzari lands  could
\nnot  be\t regarded as estates within the meaning\t of  article
\n31-A read with the Tenancy Acts in force in Madhya  Pradesh,
\nbut he contended that, inasmuch as article 31-B purported to
\nvalidate  specifically the Madhya Pradesh Act among  others,
\nand  as that article was not limited in its  application  to
\nestates,  the  objection could not  prevail.   Mr.  Somayya,
\nhowever, submitted that the opening  words of article  31-B,
\nnamely,\t “Without prejudice to the generality of the  provi-
\nsions contained in article 31-A” showed that the mention  of
\nparticular  statutes  in article 31-B read  with  the  Ninth
\nSchedule  was  only  illustrative,  and\t that,\taccordingly,
\narticle\t 31-B  could not be wider in  scope.   Reliance\t was
\nplaced in support of this argument upon the decision of\t the
\nPrivy  Council in Sibnath Banerji’s case(1). I cannot  agree
\nwith  that view.  There is nothing in article 31-B to  indi-
\ncate that the specific mention of
\n(1) [1945] F.C.R. 195 (P.C.)
\n   915<\/span>
\ncertain statutes was only intended to illustrate the  appli-
\ncation\tof the general words of article 31-A.\tThe  opening
\nwords  of article 31-B are only intended to make clear\tthat
\narticle 31-A should not be restricted  in its application by
\nreason\tof anything contained in article 31-B and are in  no
\nway  calculated\t to restrict the application of\t the  latter
\narticle or of the enactments referred to therein to acquisi-
\ntion  of  “estates.”  The decision cited affords  no  useful
\nanalogy.\n<\/p>\n
 In  some of the cases the estates sought to be\t acquired
\nare situated in what was previously the territory of  Indian
\nStates and belong to their former rulers.  On the merger  of
\nthose States in Madhya Pradesh or Uttar Pradesh, as the case
\nmay  be, by virtue of the “covenant of merger” entered\tinto
\nbetween\t the rulers and the Government of India the  proper-
\nties in question were recognised to be the “private  proper-
\nty”  of\t the Rulers. In these eases it was urged  that\tthat
\nestates\t sought\t to be acquired formed part of\tthe  Rulers’
\n“personal rights” guaranteed to them under the instrument of
\nmerger,\t and  that  neither the impugned  statutes  nor\t the
\nnotifications  issued thereunder could deprive the Ruler  of
\nsuch properties in contravention of article 362.  The Attor-
\nney-General had several answers to this argument,  including
\nthe  bar  under\t article 363 to interference  by  courts  in
\ndisputes  arising  out of agreements,  covenants,  etc.,  by
\nRulers of Indian States to which the Government of India was
\na  party.  But a short and obvious answer is that there\t was
\nno  contravention  of  any  guarantee  or   assurance  given
\nby  the\t Government  under the covenant of  merger,  as\t the
\nestates\t in question are sought to be acquired only  as\t the
\n“private  property”  of the Rulers and not  otherwise.\t The
\ncompensation provided for, such as it is, is in\t recognition
\nof  their  ‘private proprietorship, as in the  case  of\t any
\nother  owner.  There is, therefore, no force in this  objec-
\ntion.  In  Appeal No. 285 of 1951 preferred by the  Raja  of
\nKapurthala,  where  a similar objection was raised,  it\t was
\nfurther alleged that the privy purse of the Ruler was  fixed
\nat a low figure in consideration of the Oudh
\n916<\/span>
\nEstate\tbeing  left  to be enjoyed by  him  as\this  private
\nproperty, and that its compulsory taking over would  deprive
\nhim  of the means of discharging his liability\tto  maintain
\nthe  members of his family.  In the absence of any  material
\nto establish the facts, the allegation calls for no  consid-
\neration.\n<\/p>\n
    Certain  other minor points were also raised in some  of
\nthe cases but they are not worth mentioning as they proceed-
\ned either on a misapprehension or were palpably unsound.
\n    Thus  all  the objections raised to\t the  constitutional
\nvalidity  of the Bihar Act, the Madhya Pradesh Act  and\t the
\nUttar  Pradesh\tAct or any part thereof fail and  are  over-
\nruled,
\n    MAHAJAN  J.–This is an appeal under article 132 (3)  of
\nthe Constitution of India from a judgment of the Full  Bench
\nof  the\t High Court of Judicature at Patna, dated  the\t12th
\nMarch, 1951, whereby the High Court declared the Bihar\tLand
\nReforms\t Act,  1950, ultra vires on the ground\tof  its\t in-
\nfringement  of article 14 of the Constitution,\tbut  decided
\nagainst the respondent on all other points.
\n    On\tthe 30th December, 1949, a Bill intituled the  Bihar
\nLand Reforms  Bill was introduced in the Legislative  Assem-
\nbly  of Bihar and was passed by both the Houses of  Legisla-
\nture,  and after having been reserved for the  consideration
\nof  the President of India, received his assent on the\t11th
\nSeptember, 1950. The Act was published in The Bihar  Govern-
\nment  Gazette on the 25th September, 1950, and on  the\tsame
\nday  a notification under section 1 (3) of the Act was\tpub-
\nlished declaring that the Act would come into  force   imme-
\ndiately.   On the  same day, a notification under section  3
\nof  the Act was published stating that the estates and\tten-
\nures  belonging to the respondent and two others  passed  to
\nand became vested in the State of Bihar under the provisions
\nof  the\t Act.  The respondent filed a petition in  the\tHigh
\nCourt  of Judicature at Patna under article 226 of the\tCon-
\nstitution, challenging the constitutionality of the
\n   917<\/span>
\nsaid  Bihar Land Reforms Act and praying for a writ  in\t the
\nnature\tof mandamus to be issued on the State of  Bihar\t re-
\nstraining  it  from acting in any manner by  virtue  of,  or
\nunder the provisions of, the said Act.\tThis application was
\nheard along with three title suits and other similar  appli-
\ncations\t filed\tby various zemindars of Bihar by  a  Special
\nBench  of the High Court.  By three separate but  concurring
\njudgments, the Court declared the Act to be unconstitutional
\nand  void on the ground of its infringement  of\t fundamental
\nright under article 14 of the Constitution.
\n    The\t validity  of the Act was attacked before  the\tHigh
\nCourt on the following grounds:\n<\/p>\n
    1. That the Bihar Legislature had no competence to\tpass
\nit.\n<\/p>\n
    2.\tThat it contravened clause (1) of article 81 of\t the
\nConstitution.\n<\/p>\n
    3. That the vesting of the estates in the State of Bihar
\nunder the Act being in effect an acquisition of the estates,
\nit  was\t invalid as that acquisition was not  for  a  public
\npurpose and the provision for compensation was illusory.\n<\/p>\n
    4. That it contravened article 19 (1) (f) of the Consti-
\ntution.\n<\/p>\n
    5.\tThat  some  of its provisions were  invalid  on\t the
\nground of delegation of legislative powers.\n<\/p>\n
6. That it was a fraud on the Constitution.\n<\/p>\n
    7. That it was unconstitutional as it contravened  arti-
\ncle 14 of the Constitution.\n<\/p>\n
The Court held as follows :–\n<\/p>\n
    1. That the Bihar Legislature was competent to enact the
\nlegislation.\n<\/p>\n
    2. That the Act did not contravene article 31 (1) of the
\nConstitution.\n<\/p>\n
    3.\tThat the acquisition of the estates and tenures\t was
\nfor a public purpose.\n<\/p>\n
    4. That the subject-matter of the Act fell under article
\n31 (4) of the Constitution.\n<\/p>\n
918<\/span><\/p>\n
5. That article 19 (1) (f) had no application.\n<\/p>\n
     6. That whatever powers were delegated to the executive
\nwere permissible.\n<\/p>\n
    7. That the Act was not a fraud on the Constitution.\n<\/p>\n
    8.\tThat the Act was unconstitutional as it\t contravened
\narticle 14 of the Constitution.\n<\/p>\n
    During  the pendency of the appeal against the  decision
\nof the High Court the Union Government with a view to put an
\nend  to\t the litigation of the zamindars brought  forward  a
\nBill  to amend the Constitution and this was passed  by\t the
\nrequisite  majority  as the Constitution  (First  Amendment)
\nAct, 1951.  The zamindars brought petitions under article 32
\nof  the Constitution impugning the Amendment Act  itself  as
\nunconstitutional and void.  All these petitions were  disal-
\nlowed.\tby this Court on the 5th October, 1051, and  it\t was
\nheld that the Constitution (First Amendment) Act, 1051,\t had
\nbeen  validly enacted.\tIn view of the Amendment   Act\t any
\nargument regarding the unconstitutionality of the Bihar\t Act
\nbased  on the ground that the provisions of that  Act\tcon-
\ntravened  articles  14,\t 19  or 31 of the Constitution\tdoes
\nnot  survive  and the Act is not open to challenge.  on\t any
\nsuch  ground. As the Act has been held invalid by  the\tHigh
\nCourt  solely on the ground that it violated the  provisions
\nof article 14 of the Constitution, the basis of the judgment
\ndeclaring the Act to be unconstitutional is no longer  tena-
\nble  and it has therefore to be reversed in case this  Court
\nagrees\twith  the decision of the High Court on\t the  points
\ndecided against the respondent.\n<\/p>\n
    Mr. P.R. Das for the respondent frankly conceded that no
\nobjection to the validity of the Act at this stage could  be
\nraised\ton the ground that it contravened any of the  provi-
\nsions  of Part III of the Constitution.\t He,  however,\tsup-
\nported the decision of the Court on grounds decided  against
\nhim by that Court and urged the following points
\n    919<\/span>\n<\/p>\n
    1.\tThat it was not within the competence of  the  Bihar
\nState Legislature to enact the impugned Act.\n<\/p>\n
    2.\tThat  the acquisition of the estates not  being\t for
\npublic purpose, the Act was unconstitutional.\n<\/p>\n
    3. That the legislative power in various sections of the
\nAct  has been abdicated in favour of the executive and\tsuch
\nabdication of power was unconstitutional.\n<\/p>\n
    4. That the Act was a fraud on the Constitution and that
\ncertain\t parts of the Act were unenforceable on\t account  of
\nvagueness and indefiniteness.\n<\/p>\n
    The foundation of Mr. P.R. Das’s attack on the vires  of
\nthe  Act mainly rests on the contention that it is  implicit
\nwithin\tthe language of entry 36 of List II of\tthe  Seventh
\nSchedule  of  the Constitution that property  could  not  be
\nacquired without payment of compensation, the only effect of
\na  compulsory  power of acquisition against  the  individual
\nbeing  that  there is the power to oblige him  to  sell\t and
\nconvey property when the public necessities require it,\t but
\nthat the power to take compulsorily raises by implication  a
\nright  to  payment; in other words, there is  a\t concomitant
\nobligation  to pay and the power to acquire  is\t inseparable
\nfrom  the obligation to pay compensation and as\t the  provi-
\nsions  of the statute in respect of payment of\tcompensation
\nare illusory, it is unconstitutional.\n<\/p>\n
    As\tregards\t article 31 (2) of the Constitution,  it  is
\nsaid  that  it deals with the  fundamental  right  regarding
\nproperty  which is expressed in the clause in negative\tlan-
\nguage.\tIn entry 36 it is expressed in an affirmative  form.
\nThe provisions of articles 31 (4) and 31-A and 31-B,  though
\nthey  deprive  the  expropriated proprietor  of\t his  rights
\nprovided in Part III of the Constitution, do not in any\t way
\naffect the ambit of entry 36 and empower the State  Legisla-
\nture  to make a law for compulsory acquisition\tof  property
\nwithout\t payment of compensation in the true sense  of\tthat
\nterm.  Emphasis is laid on the words “subject to the  provi-
\nsions of entry 42” contained in entry 36 and it is contended
\nthat the exercise of legislative power under
\n920<\/span>
\nentry 36 is conditional on exercise of power under entry 42,
\nthat  one could not be exercised without the other and\tthat
\nthe  power conferred by the two entries had to be  construed
\non  the assumption that the acquisition was to be paid\tfor.
\nIt is further contended that the legislative power in  entry
\n42  is a power coupled with duty which the  legislature\t was
\nbound  to  exercise  for the benefit  of  the  person  whose
\nproperty  was  taken in exercise of  the  legislative  power
\nunder  entry 36. It is also said that the Bihar\t Legislature
\nhad legislated both under entry 36 and entry 42 and intended
\nto take the property conditional on payment of\tcompensation
\nbut  if it transpires that the provisions it has made  about
\npayment of compensation are illusory, then that part of\t the
\nAct would be void and as it could not have been intended  by
\nthe  legislature  to pass the Act in any truncated  form  in
\nwhich it would remain if the provisions regarding  compensa-
\ntion  are  taken  out of it, the whole Act  should  be\theld
\nunconstitutional.\n<\/p>\n
    To\tappreciate the contentions raised by Mr. Das on\t the
\nquestion of the competence of the Bihar Legislature to enact
\nthe  Bihar Land Reforms Act, 1950, it is necessary to  refer
\nto  its provisions and to see on what subjects the  legisla-
\nture has purported to enact the law.\n<\/p>\n
    The title of the Act indicates that the law provides for
\nsome  kind of land reform in Bihar.  Its preamble  gives  no
\nindication as to the nature of these reforms except that  it
\nprovides  for  the   constitution of a\tLand  Commission  to
\nadvise the State Government on the agrarian policy, whatever
\nthat  expression may mean.  The dominant purpose of the\t Act
\nis  that  of transference to the State of the  interests  of
\nproprietors and tenure-holders in land and of the mortgagees
\nand  lessees  of such interests including the  interests  in
\ntrees,\tforests, fisheries, jalkars, ferries, huts,  bazars,
\nmines  and minerals. Section 3 provides that the  Government
\nmay, from time to time, by notification declare the  estates
\nor  tenures  mentioned\ttherein to have\t passed\t and  become
\nvested\tin the State.  Section 4 mentions ,the\tconsequences
\nof such vesting. It enacts that the
\n 921<\/span>
\ninterests of the proprietor or tenure-holder in any building
\nor part of a building comprised in such estate or tenure and
\nused  primarily as office or cutchery for the collection  of
\nrent  of such estate or tenure, and his interests in  trees,
\nforests,  fisheries, jalkars, huts, bazars and\tferries\t and
\nall  other  sairati interests as also his  interest  in\t the
\nsubsoil\t  including  any   rights  in  mines  and  minerals,
\nwhether discovered or undiscovered, or whether being  worked
\nor  not,  inclusive of such rights of lessee  of  mines\t and
\nminerals, comprised in such estate or tenure (other than the
\ninterests of raiyats or under raiyats) shall vest absolutely
\nin  the State free from all incumbrances.  Clause  (b)\tpro-
\nvides that all arrears of rents, including royalties and all
\ncesses\ttogether with interest, if any, due thereon for\t any
\nperiod prior to the date of vesting, which were\t recoverable
\nin  respect of the estates or tenures of the  proprietor  or
\ntenure-holder  and the recovery of which was not  barred  by
\nany law of limitation shall vest in, and be recoverable\t by,
\nthe  State.  The expression “arrears of rent”  includes\t ar-
\nrears in respect of which suits were pending on the date  of
\nvesting\t or in respect of which decrees whether\t having\t the
\neffect\tof rent decree or money decree were obtained  before
\nthe date of such vesting and had not been satisfied and were
\nnot barred by limitation and also includes the costs allowed
\nby  such  decrees. In other words, all outstandings  in\t the
\nnature\tof rents and rent decrees that were due to the\tpro-
\nprietors  or tenure-holders before the date of\tvesting\t and
\nbefore\tthe  State had any right, title or interest  in\t the
\nestate\twould also pass to it. This seems to be\t a  peculiar
\nand  rather extraordinary consequence of the vesting  of  an
\nestate.\t  Normally it has no relation to and cannot  be\t re-
\ngarded\tas an incident of the transference of  the  estates.
\nThe clause is in effect,an independent provision laying down
\nthat  monies due to the proprietor or  tenure-holder  during
\nthe period antecedent to the vesting and not realized by him
\nbut  which  were in the course of  realization,\t whether  by
\nprivate\t effort\t or  by means of pending  suits\t or  decrees
\nincluding the costs of those
\n119<\/span>
\n922<\/span>
\nsuits  and  decrees will stand forfeited to  the  State.  In
\nclause (c) the liability of the proprietors or tenureholders
\nfor payment of arrears of revenue and cesses to the  Govern-
\nment prior to the date of vesting is kept alive.  The  other
\nconsequences  of vesting are that no suit can be  maintained
\nfor recovery of any money from a proprietor or tenure-holder
\nwhich  is secured by a mortgage or charge on the estate\t and
\nno  such estate or tenure covered by the Act is\t liable\t to.
\nattachment. The Collector is entitled to take charge of\t the
\nestate\tand to inspect the documents and accounts  which  he
\nthinks\tnecessary to do for the management of the estate  or
\ntenure.\t Section 5 permits the proprietors and\ttenure-hold-
\ners  to retain their homesteads but only in the capacity  of
\ntenants\t free  from the obligation to pay rent.\t  Section  6
\nallows\tthem  to retain possession of lands  in\t their\tkhas
\npossession  or in the possession of lessees under  them,  on
\npayment\t of  rent as raiyats to the State in the  status  of
\noccupancy  tenants.  Section 7 provides that  buildings\t to-
\ngether\twith lands on which such buildings stand and in\t the
\npossession  of\tproprietors and tenure-holders and  used  as
\ngolas,\tfactories  or  mills shall be retained\tby  them  on
\npayment\t of  rent.  Section 8 gives a right of appeal  to  a
\nparty  aggrieved against the Collector’s order. In  section0
\nit  is\tprovided that all mines comprised in the  estate  or
\ntenure as were in operation at the commencement of this\t Act
\nand were being worked directly by the proprietor or  tenure-
\nholder\tshall  be deemed to have been leased  by  the  State
\nGovernment to the proprietor of tenure-holder. This  section
\ndoes not include within its scope mines on which  considera-
\nble  money might have been spent but which are actually\t not
\nin  Operation.\tAn artificial definition has been  given  in
\nsection\t (2)  sub-clause  (m) to the  expression  “mines  in
\noperation”  as meaning mines regarding the working of  which
\nnotice has been served on Government under the Indian  Mines
\nAct.   Section 10 keeps alive subsisting lease of mines\t and
\nminerals,  the lessee being deemed to be a lessee under\t the
\nGovernment.  Buildings and lands appurtenant to a mine stand
\ntransferred
\n  923<\/span>
\nto the State under the provisions of section 11 and they are
\nto  be deemed’ to be leased by the State to the lessee\twith
\neffect\tfrom the date of vesting. Section 12 lays  down\t the
\nconstitution of\t a Mines  Tribunal. Section 13 provides\t for
\nthe  management of the estates and tenures that vest in\t the
\nState.\t Sections  14,\t15, 16, 17 and\t18  make  provisions
\nrelating  to the investigation of debts of  proprietors\t and
\ntenure-holders and     lay down the procedure for payment of
\nthose  debts.  In section 19 provision is made for  the\t ap-
\npointment  of compensation officer.  Certain directions\t are
\ngiven  in sections 20 and 21 regarding the procedure  to  be
\nadopted by the compensation officer when the proprietor\t has
\nonly  a certain share in an estate and where certain  trusts
\nhave  been  created  by\t the  tenure-holder  or\t proprietor.
\nSection\t 22  defines “previous agricultural  year”  and\t the
\nphrase\t“gross\tassets” with reference to  a  proprietor  or
\ntenure-holder.\t “GroSs assets” in the Act means the  aggre-
\ngate  of the rents including all cesses, which were  payable
\nin  respect of the estates or tenures of such proprietor  or
\ntenureholder  for the  previous agricultural  year,  whether
\npayable by a subordinate tenant or the raiyats.those  rents.
\nIn the expression “gross assets” is also included the  gross
\nincome\tof  the previous agricultural year  from  fisheries,
\ntrees, jalkars, ferries, huts, bazars and sairati interests.
\nGross income  from forests has to be calculated on the basis
\nof  the average gross annual income of twenty-five  agricul-
\ntural  years  preceding the agricultural year in  which\t the
\ndate  of  vesting falls, which in the opinion  of  a  forest
\nofficer,  the  forests would have yielded if they  had\tbeen
\nplaced during the said period of twenty-five years under the
\nmanagement of the State.\n<\/p>\n
    Section  23 lays down the method of computation  of\t net
\nincome.\t It provides that the net income of a proprietor  or
\ntenure-holder shall  be computed by deducting from the gross
\nasset  of such proprietor or tenure-holder, as the case\t may
\nbe,  the following :\n<\/p>\n
(a) any sum payable as land revenue or rent;\n<\/p>\n
924<\/span><\/p>\n
    (b)\t any sum payable by such proprietor as\tagricultural
\nincome-tax  in\trespect of any agricultural  income  derived
\nfrom  such  estate or tenure for the  previous\tagricultural
\nyear;\n<\/p>\n
    (c) any sum payable by such proprietor or tenure  holder
\nas  income-tax\tin respect of any income derived  from\tsuch
\nestate\tor  tenure, other than royalties  for  the  previous
\nagricultural year;\n<\/p>\n
    (d) any sum payable as chaukidari tax or municipal tax,\n<\/p>\n
    (e) cost of management of such estate or tenure at rates
\nvarying\t from  five  to twenty per cent.  according  to\t the
\namount of the gross asset.  The lowest limit fixed is at Rs.
\n2,000, and the highest at any amount exceeding Rs. 15,000.
\n    These  rates appear to have been fixed in  an  arbitrary
\nmanner bearing no relation whatsoever to the actual cost  of
\nmanagement.   To illustrate, in the case of the Maharaja  of
\nDarbhanga  whose estate has a gross income of nearly  forty-
\neight  lakhs,  the  cost of management,\t according  to\tthis
\ncalculation,  would  work’ out to a sum of nine and  a\thalf
\nlakhs,\twhich  on  the face of it looks\t startling;  it\t can
\nhardly\thave  any relation to the costs\t actually  incurred.
\nThe expense ratio under the head “management would ordinari-
\nly  be\tlowest for the highest gross income. It goes  up  in
\nproportion  to the reduction in the amount of gross  income.
\nThe  Act has, however, reversed this rule of economics\twith
\nthe  result  that part of the money that on  the  principles
\nstated for determining compensation would be payable by\t way
\nof  compensation to the proprietor or  tenure-holder  stands
\nforfeited  by this artificial reduction of the\tnet  income.
\nClause\t(f) provides for deduction from the gross assets  of
\ncost  of works of benefit to the raiyats of such estates  or
\ntenures at rates varying from four to twelve and a half\t per
\ncent.,\t the rate of four per cent. being  applicable  where
\nthe  gross asset does not exceed Rs. 5,000, and the rate  of
\ntwelve\tand  a half per cent being applicable if  the  gross
\nasset exceeds Rs. 25,000. It is obvious
\n 925<\/span>
\nthat the calculation of the cost of works of benefit to\t the
\nraiyats\t at a fiat rate without any reference to the  actual
\nexpenses  that might have been incurred is a provision of  a
\nconfiscatory  character.   It artificially reduces  the\t net
\nincome which is the basis of the assessment of compensation.
\nThe  last clause(g) of this section allows deduction of\t any
\nother  tax or legal imposition, payable in respect  of\tsuch
\nestate\tor  tenure not expressly mentioned  in\tthe  earlier
\nclauses. Section 24 provides the manner of determination  of
\nthe compensation payable to the proprietor or  tenureholder.
\nIt lays down a sliding scale for the assessment of compensa-
\ntion.\tWhere  the net income does not exceed Rs.  500,\t the
\ncompensation  payable  is twenty times the  net\t income\t and
\nwhere  the net income computed exceeds Rs. 1,00,000,  it  is
\npayable at three times the amount. The compensation in\tsuch
\ncases  is  merely nominal.  In the case of the\tMaharaja  of
\nDarbhanga, the estate acquired also comprised and  purchased
\nby  him\t by spending about a crore of rupees and  also\tcom-
\nprised\tmortgages,  to the tune of half a crore.  All  these
\nvest in the Bihar State along with the inherited  zemindaris
\nof  the\t Maharaja  and\tarrears of  rent  amounting  to\t Rs.
\n30,00,000, while the total compensation payable is nearly  a
\nsum of Rs. 9,00,000.  This section further provides that  to
\nthe  amount thus payable shall be added the amount of  fifty
\nper  cent. of the arrears of rent referred to in clause\t (b)
\nof  section 4 along with the amount of compensation  Payable
\nin respect of mines and minerals as determined under section\n<\/p>\n
25.  The section also lays down the method of assessment  of
\ncompensation in the case of persons who have only a share in
\nthe  zamindari or have other minor interests in the  tenures
\nor estates where the estate or tenure is held in trust etc.,
\nor  where they are of an impartible nature. In the  case  of
\nmines and minerals the method of assessment is laid down  in
\nsection 25.  It has either to be fixed by agreement or by  a
\ntribunal appointed for the purpose.  The subsequent sections
\nprovide\t lot  the preparation of compensation roll  and\t for
\nhearing of appeals etc, Section 32
\n926<\/span>
\nlays down the method and manner of payment of  compensation.
\nSub-section  (2) of this section enacts that the  amount  of
\ncompensation shall be paid in cash or in bonds or partly  in
\ncash and partly in bonds. The bonds shall be either negotia-
\nble or non-negotiable and non-transferable and be payable in
\nforty  equal  instalments to the person\t named\ttherein\t and
\nshall  carry interest at two and a half per cent. per  annum
\nwith  effect  from  the date of issue.\tAny  disputes  about
\ncompensation   between\tthe  proprietors or  tenure  holders
\nhave  to be determined by a tribunal appointed by the  State
\nGovernment.   Section 34 provides for the constitution of  a
\ncommission  called  the Bihar Land  Commission.\t  The  other
\nprovisions  of the Act are of a miscellaneous character\t and
\nrequire\t no special mention.  The  last section\t  authorizes
\nthe  State  Government to make rules for  carrying  out\t the
\nprovisions of the Act.\n<\/p>\n
    From  this\tsurvey of the Act it appears  that  the\t law
\nenacted\t might\tbe taken to relate to several items  in\t the
\nlegislative  lists.  ie., rights in or over  land  and\tland
\ntenures, forests, fisheries, mines and minerals, acquisition
\nof  property and also principles on which  compensation\t for
\nproperty  acquired is to be determined.\t The pith  and\tsub-
\nstance\tof  the legislation however, in my opinion,  is\t the
\ntransference of ownership of estates to the State Government
\nand  falls within the ambit of legislative head entry 36  of
\nList  II.   There  is no scheme of land\t reform\t within\t the
\nframework  of  the statute except that a pious hope  is\t ex-
\npressed\t that  the  commission may produce  one.  The  Bihar
\nLegislature  was certainly competent to make the law on\t the
\nsubject\t of transference of estates and the  Act as  regards
\nsuch transfers is constitutional.\n<\/p>\n
    The Act further deals with the realization of arrears of
\nrents  due before the date of vesting of the estates to\t the
\nzemindars  and forfeits fifty per cent. of such\t realization
\nto  the\t State\texchequer.  It also in\tan  indirect  manner
\nforfeits the State exchequer part of the compensation  money
\nwhich would have been payable
\n    927<\/span>
\nto  the proprietors or tenureholders if the net\t income\t was
\nnot  reduced by deduction from the gross income of items  of
\nartificial  nature  which  have no relation  to\t any  actual
\nexpenses.   Both these provisions will be  separately  dealt
\nwith  hereinafter as, in my opinion, the enactment of  these
\nprovisions is unconstitutional
\n    Having  held  that the Bihar Act  is  constitutional  as
\nregards\t transfer of estates to the State and that  this  is
\nmainly an enactment under legislative head 36 of List II, it
\nis  convenient now to examine the contention of Mr.  Das  to
\nthe  effect that in the contents of the power  conferred  on
\nthe  legislature  by this entry their exists  a\t concomitant
\nobligation  to pay compensation and that as  the  provisions
\nregarding  payment of compensation are illusory, the Act  is
\nunconstitutional and that article 31 (4) of the Constitution
\ndoes not afford any protection against this attack.
\n    For a proper appreciation and appraisal of the  proposi-
\ntion  of Mr. P. R. Das that the obligation to pay  compensa-
\ntion is implicit in the language of entry :36 of List II  of
\nthe Seventh Schedule and that the power to take compulsorily
\nraises\tby  implication\t a right to payment,  the  power  to
\nacquire being inseparable from the obligation to pay compen-
\nsation, it is necessary to examine briefly the origin of the
\npower of the State on the subject of compulsory\t acquisition
\nof  property. This power is a sovereign power of the  State.
\nPower  to  take property for public use has  been  exercised
\nsince olden times.  Kent speaks of it as an inherent  sover-
\neign  power.  As an incident to this power of the  State  is
\nthe requirement that property shall not be taken for  public
\nuse  without  just compensation.  Mr. Broom in his  work  on
\nConstitutional\tLaw  says, “Next in degree to the  right  of
\npersonal liberty is that of enjoying private property  with-
\nout  undue interference or molestation, and the\t requirement
\nthat property shall not be taken for public use without just
\ncompensation  is  but an affirmance of\tthe  great  doctrine
\nestablished by the common law for the protection of  private
\nproperty.  It is founded in natural equity and is
\n928<\/span>
\nlaid down as a principle of universal law.”  In the words of
\nLord Atkinson in Central Control Board v. Cannon Brewery Co.
\nLtd.(1),  the  power to take compulsorily raises by implica-
\ntion a right to payment.\n<\/p>\n
    On the continent the power of compulsory acquisition  is
\ndescribed  by the term “eminent domain”. This term seems  to
\nhave  been originated in 1625 by Hugo Grotius. who wrote  of
\nthis power in his work “De Jure Belli et Pacis” as follows:\n<\/p>\n
    “The property of subjects is under the eminent domain of
\nthe  State, so that the State or he who acts for it may\t use
\nand even alienate and destroy such property, not only in the
\ncase  of  extreme necessity, in which even  private  persons
\nhave  a right over the property of others, but for  ends  of
\npublic utility, to which ends those who founded civil socie-
\nty  must  be  supposed to have intended\t that  private\tends
\nshould\tgive way.  But it is to be added that when  this  is
\ndone  the State is bound to make good the loss to those\t who
\nlose their property.”\n<\/p>\n
    The\t relationship  between\tthe  individual’s  right  to
\ncompensation  and the sovereign’s power to condemn  is\tdis-
\ncussed\tin Thayer’s Cases on Constitutional Law (Vol. I,  p.\n<\/p>\n
953)  (mentioned on page 3 of Nichols on Eminent Domain)  in
\nthese words :–\n<\/p>\n
    “But  while\t this obligation (to make  compensation)  is
\nthus  well  established and clear, let\tit  be\tparticularly
\nnoticed\t upon what ground it stands, viz., upon the  natural
\nrights\tof the individual.  On the other hand, the right  of
\nthe  State to take springs from a different source, viz.,  a
\nnecessity of government. These two, therefore, have not\t the
\nsame  origin; they do not come, for instance, from  any\t im-
\nplied  contract between the State and the  individual,\tthat
\nthe former shall have the property, if it will make  compen-
\nsation;\t the right is no mere right of pre-emption,  and  it
\nhas  no\t condition  of compensation annexed  to\t it,  either
\nprecedent or subsequent; but there is a right to take,
\n(1) [1919] A.C. 744.\n<\/p>\n
   929<\/span><\/p>\n
and  attached  to it as an incident, an obligation  to\tmake
\ncompensation;  this  latter, morally speaking,\tfollows\t the
\nother, indeed like a shadow but it is yet distinct from\t it,
\nand flows from another source.”\n<\/p>\n
    Shorn of all its incidents, the simple definition of the
\npower  to acquire compulsorily or of the term  “eminent\t do-
\nmain”  is  the power of the sovereign to take  property\t for
\npublic use without the owner’s consent.\t The meaning of\t the
\npower  in its irreducible terms is. (a) power to  take,\t (b)
\nwithout\t the owner’s consent, (c) for the public  use.\t The
\nconcept\t of the public use has been inextricably related  to
\nan  appropriate\t exercise  of the power\t and  is  considered
\nessential  in  any  statement of its  meaning.\t Payment  of
\ncompensation,  though  not an essential\t ingredient  of\t the
\nconnotation  of\t the term, is an essential  element  of\t the
\nvalid exercise of such power.  Courts have defined  “eminent
\ndomain”\t so  as to include this universal limitation  as  an
\nessential constituent of its meaning. Authority is universal
\nin support of the amplified  definition of “eminent  domain”
\nas  the power of the sovereign to take property\t for  public
\nuse  without the owner’s consent upon making just  compensa-
\ntion.\n<\/p>\n
    It is clear, therefore, that the obligation for  payment
\nof just compensation is a necessary incident of the power of
\ncompulsory  acquisition\t  of   property,    both  under\t the
\ndoctrine  of  the English Common Law as well  as  under\t the
\ncontinental doctrine of eminent domain, subsequently adopted
\nin America.\n<\/p>\n
 The question for consideration is  whether this  obliga-
\ntion  to  pay compensation  for\t compulsory  acquisition  of
\nproperty  has been impliedly laid down by  the\tconstitution
\nmakers\tin our Constitution under legislative head in  entry
\n36  of List II and entry 33 of List I, or whether  this\t all
\nimportant obligation which follows compulsory acquisition as
\na  shadow has been put in express and clear terms  somewhere
\nelse in the Constitution.  To my mind, our Constitution\t has
\nraised this obligation to pay compensation for the
\n120<\/span>
\n930<\/span>
\ncompulsory acquisition of property to the status of a funda-
\nmental\tright and it has declared that a law that  does\t not
\nmake provision for payment of compensation shall be void. It
\ndid  not leave the matter to be discovered and spelt out  by
\nlearned\t arguments  at the Bar from out of the\tcontents  of
\nentry 36; they explicitly provided for it in. article 31 (2)
\nof the Constitution.  As the obligation to pay has been made
\na  compulsory part of a statute that purports  to  legislate
\nunder entry 33 of List I and entry 36 of List II, it is\t not
\npossible  to accede to the contention of Mr. P.R.  Das\tthat
\nthe  duty  to pay compensation is a thing  inherent  in\t the
\nlanguage  of entry 36.\tI agree with the  learned  Attorney-
\nGeneral that the concept of acquisition and that of  compen-
\nsation\tare  two different notions having  their  origin  in
\ndifferent sources.  One is founded on the sovereign power of
\nthe  State to take, the other is based on the natural  right
\nof the person who is deprived of property to be\t compensated
\nfor  his  loss. One is the power to take, the other  is\t the
\ncondition for the exercise of that power. Power to take\t was
\nmentioned in entry 36, while the condition for the  exercise
\nof  that power was embodied in article 31 (2) and there\t was
\nno  duty to pay compensation implicit in the content of\t the
\nentry itself.\n<\/p>\n
    Reference in this connection may be made to the  Govern-
\nment  of India Act, 1935.  By section 299 of that statute  a
\nfetter was imposed on the power of legislation itself.\t The
\nConstitution,  however,\t declared  laws\t not  providing\t for
\ncompensation as void and it not only placed a fetter on\t the
\npower  of  legislation but it  guaranteed  the\texpropriated
\nproprietor  a remedy in article 32 of the  Constitution\t for
\nenforcement of his fundamental right.  I am therefore of the
\nopinion\t that  Mr. Das is not right in his  contention\tthat
\nunless\tadequate  provision is made by a law  enacted  under
\nlegislative  power conferred by entry 36 of List I for\tcom-
\npensation,  the law is unconstitutional as entry  36  itself
\ndoes not authorize the making of such a law without  provid-
\ning for compensation. Then
\n  931<\/span>
\nit  was\t said that entry 36 of List II was  linked  up\twith
\nentry  42 of the Concurrent List by the words  “subject\t to”
\noccurring  therein and that the validity of any law made  in
\nexercise of legislative power under entry 36 was conditional
\non the simultaneous exercise of the legislative power  under
\nentry  42  and because there has been no valid\texercise  of
\nthis power (the provisions of the impugned Act regarding the
\ndetermination of compensation being illusory), the  legisla-
\ntion under entry 36 fails. In my opinion, this contention is
\nunsound. The two entries referred to above are merely  heads
\nof legislation and are neither interdependent nor complemen-
\ntary  to  one another. It is by force of the  provisions  of
\narticle\t 31  (2)  that it becomes  obligatory  to  legislate
\nproviding for compensation under entry 42 of the  Concurrent
\nList in order to give validity to a law enacted under  entry
\n36 and not by reason of the use of the wards “subject to” in
\nthe  wording of the entry.  No such words occur in entry  33
\nof  the\t Union List.  It cannot reasonably  be\targued\tthat
\nParliament  could make a law for compulsory  acquisition  of
\nproperty for its purposes with out fulfilling the  condition
\nof making a law under entry42 of the Concurrent List, but  a
\nState  Legislature in this respect is in a different  situa-
\ntion.  Such a contention, in my opinion, is untenable.\t The
\nonly  purpose of the words “subject  to” occurring in  entry
\n36  is to indicate that legislation under entry 36 would  be
\nsubject\t to  any law made by Parliament in exercise  of\t its
\nlegislative  power  under entry 42 of the  Concurrent  List.
\nBoth  legislatures  can\t legislate under entry\t42  but\t the
\nParliamentary statute  made in exercise of powers under this
\nentry  would  have preference over a State law\tin  case  of
\nrepugnancy  and\t it was for this reason that  reference\t was
\nmade to entry 42 in the head of legislation mentioned in the
\nState  List  under  entry  36.\t In  other  words,  it\tonly
\nmeans.that whenever a law is made by a State Legislature  in
\nexercise  of its legislative power under entry 36, that\t law
\nwill be subject to the provisions of a Parliamentary statute
\nmade in exercise of its legislative powers under entry 42 of
\nthe Concurrent List.\n<\/p>\n
932<\/span><\/p>\n
    Lastly it was urged that the legislative power conferred
\nin entry 42 of the Concurrent List is a power conferred\t for
\nthe benefit of the expropriated owner and that the  legisla-
\nture is bound to exercise this power for his benefit whenev-
\ner it takes property under its compulsory powers,. in  other
\nwords, it was said that the power conferred by the entry was
\ncoupled ,. with a duty to exercise it. Reference was made in
\nthis connection to the observations of Lord Cairns in Julius
\nv.  Bishop of Oxford(1).  The principle of that decision  is
\nthat where power is conferred in the nature of a trust there
\nis  an\tobligation  to exercise it for the  benefit  of\t the
\ncestui que trust.  These observations do not have any  appo-
\nsite  application to the case of legislative   powers\tcon-
\nferred\tby  a constitution.   The entries in the  lists\t are
\nmerely\tlegislative heads and are of an enabling  character.
\nDuty  to  exercise legislative power and  in.  a  particular
\nmanner\tcannot be read into a mere head of  legislation.  If
\nthe argument of the learned counsel was sound, then it would
\nbe open to this Court to issue a mandamus to the legislature
\nto exercise its power of legislation  under entry 42, if  it
\nfailed\tto do so.  Mr. Das. when faced with  this  question,
\nhad  to\t admit that he could not seriously  contend  that  a
\nlegislature  could be directed to enact a statute if it\t did
\nnot  wish  to do so. Failure to make a law  under  entry  42
\ncannot\tmake a law made under entry 36 bad. In\tmy  opinion,
\nthe  decision in the case of Julius v. Bishop of Oxford\t (1)
\nhas no relevancy to the matter before us.\n<\/p>\n
The  crucial point for determination in these appeals is  to
\ndiscover the extent to which article 31 (4)of the  Constitu-
\ntion  or  the new articles 31-A and a1-B have  deprived\t the
\nexpropriated   proprietor of his rights or remedies  in\t re-
\nspect  of  this matter and of the guaranteed  right  to\t get
\ncompensation  for property acquired.  Article 31 (4)  is  in
\nthese terms :-\n<\/p>\n
     “If  any Bill pending at the commencement of this\tCon-
\nstitution  in the legislature of a State has, after  it\t has
\nbeen passed by such Legislature, been
\n(1) (1880) 5 App. Cas. 214.\n<\/p>\n
   933<\/span><\/p>\n
reserved  for  the consideration of the\t President  and\t has
\nreceived his assent, then, notwithstanding anything in\tthis
\nConstitution, the law so assented to shall not be called  in
\nquestion in any court on the ground that it contravenes\t the
\nprovisions of clause (2).”\n<\/p>\n
Articles 31-A and 31-B are in these terms :–\n<\/p>\n
    “31-A.  (1)\t Notwithstanding anything in  the  foregoing
\nprovisions of this Part, no law providing for the   acquisi-
\ntion by the State of any estate or of any rights therein  or
\nfor  the extinguishment or modification of any\tsuch  rights
\nshall  be deemed to be void on the ground that it is  incon-
\nsistent\t with, or takes away or abridges any of\t the  rights
\nconferred by any provisions of this Part:\n<\/p>\n
    Provided that where such law is a law made by the Legis-
\nlature of a State, the provisions of this Article shall\t not
\napply thereto unless such law, having been reserved for\t the
\nconsideration the President has received his assent.
\n(2)  In\t this article\n<\/p>\n
(a) the expression ‘ estate’ shall in relation to any  local
\narea  have the same meaning as that expression or its  local
\nequivalent has in the existing law relating to land  tenures
\nin  force  in that area, and shall also include\t any  jagir,
\ninam or musafi or other similar grant.\n<\/p>\n
(b) the expression ‘rights’, in relation to an estate, shall
\ninclude any rights vesting in a proprietor,  sub-proprietor,
\nunder  proprietor, tenure-holder  or other intermediary\t and
\nany rights or privileges in respect of land revenue.
\n    31-B.  Without prejudice to the generality of the provi-
\nsions contained in article 31-A, none of the Acts and  Regu-
\nlations\t specified  in\tthe Ninth Schedule nor\tany  of\t the
\nprovisions  thereof shall be deemed to be void, or  even  to
\nhave become void, on the ground that such Act, Regulation or
\nprovision is inconsistent with or takes away or abridges any
\nof the rights conferred by, any provisions of this Part, and
\nnotwithstanding\t any judgment, decree or order of any  court
\nor tribunal
\n   934<\/span>
\nto  the\t contrary,  each of the said  Acts  and\t Regulations
\nshall, subject to the power of any competent legislature  to
\nrepeal or amend it, continue in force.\n<\/p>\n
    The\t language  of article 31(4) is\tunequivocal  in\t its
\nterms and states that when a Bill has received the assent of
\nthe  President\taccording  to the  procedure  prescribed  in
\narticle 31(3) and (4) then, notwithstanding anything in this
\nConstitution, the law so assented to shall not be called  in
\nquestion in any court on the ground that it contravenes\t the
\nprovisions of clause (2).\n<\/p>\n
    In\torder to determine the scope of this clause,  it  is
\nnecessary  to determine what are the specific provisions  of
\nclause\t(2) which clause (4) makes unjusticiable.  A  strict
\nconstruction  has  to  be placed on  the  language  of\tthis
\nclause, it being in the nature of a debarring provision.  In
\nmy  opinion, the provisions of sub-clause (2) made  unjusti-
\nciable\tby clause (4), relate to the determination and\tpay-
\nment of compensation.  The whole purpose of the clause is to
\nmake  the obligation to pay compensation a condition  prece-
\ndent  to the compulsory acquisition of property.  The  words
\nof  the\t clause preceding the word “unless” are\t merely\t de-
\nscriptive  of the law, the validity of which would be  ques-
\ntionable if there was no provision for determination and for
\npayment\t of compensation for the property taken in its\tcon-
\ntents.\t The  use  of the word “such”  fully  supports\tthis
\ninterpretation.\t  The mandate of the clause is that  such  a
\nlaw must contain a provision for payment of compensation  to
\nthe  expropriated  proprietor.\t According  to\tthe   Oxford
\nDictionary,  (Vol.  8, p. 1526) the  expression\t  provision”
\nwhen  used in statutes, has reference to what  is  expressly
\nprovided   therein.   What  article  31 (4)  really says  is
\nthat   the  contravention   of the   express  provisions  of
\narticle 31 (2) relating to payment of compensation will\t not
\nbe  a  justiciable issue.  It has no reference\tto  anything
\nthat may be implied within the language of that clause.\t The
\nexistence  of a “public purpose” is undoubtedly\t an  implied
\ncondition  of the exercise of compulsory powers of  acquisi-
\ntion  by the State, but the language of article 31 (2)\tdoes
\nnot
\n  935<\/span>
\nexpressly  make it a condition precedent to acquisition.  It
\nassumes\t that  compulsory acquisition can be for  a  “public
\npurpose”  only, which is thus inherent in such\tacquisition.
\nHence article 31(4), in my opinion, does not bar the  juris-
\ndiction of the court from inquiring whether the law relating
\nto  compulsory acquisition of property is not valid  because
\nthe acquisition is not being made for a public purpose. This
\nis  also the view taken by the learned Judges of  the  Patna
\nHigh Court. The sovereign power to acquire property  compul-
\nsorily\tis a power to acquire it only for a public  purpose.
\nThere  is  no  power in the  sovereign\tto  acquire  private
\nproperty  in  order to give  it to private  persons.  Public
\npurpose is a content of the power itself. Reference in\tthis
\nconnection   may be made to Willoughby’s Constitutional\t Law
\n(page 795). Therein it is stated,
\n    “As between individuals, no necessity, however great, no
\nexigency,  however imminent, no improvement,  however  valu-
\nable,  no  refusal,  however  unneighbourly,  no  obstinacy,
\nhowever unreasonable, no offers\t    of compensation, however
\nextravagant,  can compel or require any man to part with  an
\ninch of his estate.”\n<\/p>\n
  Public  purpose  is an essential ingredient  in  the\tvery
\ndefinition  of the expression “eminent domain” as  given  by
\nNichols and other constitutional writers, even though  obli-
\ngation\tto pay compensation is not a content of the  defini-
\ntion  but has been added to it by  judicial  interpretation.
\nThe exercise of the power to acquire compulsorily is  condi-
\ntional\ton the existence of a public purpose and that  being
\nso this condition is not an express provision of article  31
\n(2)  but exists aliunde in the content of the  power  itself
\nand that in fact is the assumption upon which this clause of
\nthe article proceeds.\n<\/p>\n
   The\tresult\tof  this discussion is that  the  scope\t of
\narticle 31(4) is limited to the express provisions of  arti-
\ncle  31 (2) and courts cannot examine either the  extent  or
\nthe adequacy of the provisions of compensation contained  in
\nany law dealing with the
\n936<\/span>
\nacquisition of property compulsorily for public purpose\t but
\nthe  barring provisions of article 31 (4) do not in any\t way
\ntouch the powers of the court to see whether the acquisition
\nhas  been  made for public purpose. The provisions  of\tthis
\nclause\talso do not take away the court’s power\t to  examine
\nwhether\t the  legislature  that made the law  has  acted  in
\nexercise  of  its law making power within the lists  or\t has
\nmerely\tmade some other law though it has  ostensibly  exer-
\ncised  its  powers under a certain  legislative\t head  which
\ncannot be used to support the legislation.
\n    As\tregards the new articles 31-A and 31-B, they  merely
\nplace  beyond the reach of the court any  enactment  dealing
\nwith  compulsory acquisition of property which may  infringe
\nany  of the provisions of Part III of the  Constitution;  in
\nother  words, article 13 (2) of the Constitution  cannot  be
\ncalled in aid to impugn the validity of such statutes.
\n    Having determined the scope of article 31 (4), it is now
\nconvenient to  examine\tthe extent of  the protection  given
\nby article: 31 (4) to the impugned statute.
\n    Mr.\t Das  is to a great extent right in  his  contention\n<\/p>\n
–the  point  was not seriously challenged  by\tthe  learned
\nAttorney-General.–that\t the  law  under  challenge  in\t the
\nmatter\tof compensation is highly unjust or  inequitable  to
\ncertain persons and in certain matters, and compensation  in
\nsome  cases  is\t purely illusory.  Be that as  it  may,\t the
\nConstitution  in  express terms prohibits an  enquiry  in  a
\ncourt  of  law into those matters.   The  same\tConstitutent
\nAssembly  that provided the guarantees in article 31 (2)  in
\nrespect of payment of  compensation and provided the  remedy
\nin article 32 for  enforcing the guaranteed right. took away
\nthat  remedy in the case of the Bihar and  other   zamindari
\nestates\t and substituted for it the procedure of article  31
\n(3)  and (4), compliance with which would be  sufficient  to
\nmake  the laws valid and effective.  However  repugnant\t the
\nimpugned  law  may  be to our sense of justice,\t it  is\t not
\npossible
\n  937<\/span>
\nfor us to examine its contents on the question of quantum of
\ncompensation.  It is for the appropriate legislature to\t see
\nif  it\tcan revise some of its unjust provisions  which\t are
\nrepugnant  to all notions of justice and are of an  illusory
\nnature.\t  The  courts’ hands are tied by the  provisions  of
\narticle\t 31(4) and that which has been declared by the\tCon-
\nstitution  in clear terms not to be justiciable,  cannot  be
\nmade  justiciable in an indirect manner by holding that\t the
\nsame  subjectmatter which is expressly barred  is  contained
\nimplicitly  in some other entry and therefore open  to\texa-
\nmination.   None  of these provisions, however,\t fetter\t the
\npower  of  the court to inquire into any other\tmatters\t the
\ncognizance  of\twhich  is not expressly taken  away  by\t the
\nprovisions of clause (4) and articles 31-A and 31-B.
\nTherefore,  the material point for determination is  whether
\nthe acquisition of the estates is for any-public purpose and
\nif it be not so, the law can certainly be held to be  uncon-
\nstitutional.  Mr. Das contended, and in my opinion  rightly,
\nthat jurisdiction to acquire private property by legislation
\ncan  only be exercised for a public purpose.  It may be\t the
\npurpose\t of  the Union, or the purpose of the State  or\t any
\nother  public purpose.\tPrivate property cannot be  acquired
\nfor  a private purpose. ‘the right to legislate under  entry
\n36  postulates\tthe existence of a public  purpose  and\t the
\ncontention  is that there was no public purpose\t behind\t the
\nAct.   The learned Judges of the  High Court negatived\tthis
\ncontention on the ground that the question whether there was
\na  public purpose in support of the acquisition of  the\t es-
\ntates  had  been by implication decided by  the\t Constituent
\nAssembly  and  therefore the Court could not  go  into\tthis
\nmatter.\t Shearer J. said as follows ;–\n<\/p>\n
“We are in my opinion, estopped from saying that the  acqui-
\nsition of estates and tenures is not an acquisition for such
\na  purpose. That it is, has been decided by the\t Constituent
\nAssembly itself.”\n<\/p>\n
121<\/span>
\n938<\/span><\/p>\n
    This  decision was reached in view of the provisions  of
\nclauses (4) and (6) of article 31 which were interpreted  to
\nmean  that the Constituent Assembly gave their\texpress\t ap-
\nproval\tto this legislation.  Reuben J. observed as  follows
\n:–\n<\/p>\n
    “From  article  31,\t clause (2), it is  clear  that\t the
\nConstituent  Assembly considered two requirements as  essen-
\ntial for compulsory acquisition, namely a public purpose and
\nprovision  for\tcompensation.\tThe  protection\t which\t the
\nConstituent   Assembly\tgave under clauses  (4)and  (6)\t was
\nconfined  to the latter requirement.  Evidently,  therefore,
\nthe  Constituent  Assembly thought that protection  was\t not
\nrequired under the other head, that is to say, the Constitu-
\nent Assembly regarded the nationalization of land as  itself
\nconstituting a public purpose.\n<\/p>\n
    I would, therefore, hold that there is a public  purpose
\nfor  the  impugned Act within the meaning of clause  (2)  of
\narticle 31.”\n<\/p>\n
Das J. said as follows :–\n<\/p>\n
    “There is, I think, clear indication in the Constitution
\nof  India itself that the expression ‘public purpose’ is  to
\nbe  understood in a wide and comprehensive  sense.  Further-
\nmore,  there is indication  that  the Constituent  Assembly,
\nrepresenting  the people of India which made  the  Constitu-
\ntion,  was itself aware of the existence of  legislation  of
\nthe nature of impugned Act. This is clear from clause (4) of
\narticle\t 31. As a matter of fact, the Land Reforms Bill\t was
\npending at the commencement of the ‘Constitution   ………
\nIf  the legislation then pending was not for a\tpublic\tpur-
\npose, it was, indeed, surprising that the Constituent Assem-
\nbly  tried to save such legislation by means of\t the  provi-
\nsions  of clause (4) of article 31.  One may, I\t think,\t say
\nthat  there  was an implied declaration by  the\t Constituent
\nAssembly that such legislation was for a public purpose\t and
\nsuch declaration will be given deference by the courts until
\nit is shown to involve an impossibility.\n<\/p>\n
939<\/span><\/p>\n
    For the reasons  given above,  I hold that the  impugned
\nAct does not fail for want of a public purpose\t”\n<\/p>\n
    Learned  counsel challenged this view of the High  Court
\nand  contended that article 31(4) of the Constitution is  no
\nanswer\ton  this point and that the Act was bad\t as  it\t was
\nsilent\ton the question as to why the zamindaris were  being
\nacquired;  that\t it only provided for  the  interception  of
\nrents which instead of being realized by the zamindars would
\ngo  into the coffers of the Government without\tany  benefit
\nbeing  derived by the tenants; that private  property  could
\nnot  be acquired for merely augmenting the revenues  of\t the
\nState; and that the only purpose that could be gathered from
\nthis  Act  was\tthe ruination of a large  class\t of  persons
\nwithout\t any  corresponding benefit to any section   of\t the
\ncommunity.  It is said that there are 13,35,000\t land-owners
\nand  tenure-holders  in Bihar and if an\t average  family  be
\ntaken  to consist of four persons, five and a  half  million
\npeople\twill be ruined by this legislation, while the  ryots
\nwill not benefit in any manner because all the lands except-
\ning  the  waste lands sought to be transferred\tare  in\t the
\npossession  and cultivation of the ryots and no part of\t the
\nrent realisable from them is being commuted for their  bene-
\nfit.  It is pointed out that the waste lands were sufficient
\nto meet the requirements of villagers for grazing cattle and
\nfor  pasture and that in effect the acquisition of  the\t es-
\ntates was for the purpose of creating one machine-ridden and
\nred-tapist super-landlord by depriving a substantial portion
\nof the public of their means of livelihood.
\n    The\t learned counsel proceeded to say that\tnationaliza-
\ntion  of  land may be the policy of the party in  power\t but
\nthis  is not a public purpose which involves benefit to\t the
\ncommunity.   Reference\tin this connection was made  to\t the
\ndecision in Harnabai Pramjee Petit v. Secretary of State for
\nIndia(1),  where  it was observed that\tthe  phrase  “public
\npurpose” whatever it may
\n(1)(1915) 42 I.A. 44.\n<\/p>\n
940<\/span><\/p>\n
mean, must include a purpose, that is, an object or aim,  in
\nwhich  the general interest of the community as\t opposed  to
\nthe  particular\t interest  of individuals  is  directly\t and
\nvitally concerned.  The impugned Act, it was contended,\t did
\nnot fall within this definition of “public purpose”.  Refer-
\nence  was  also made to Vol. II of  Cooley’s  Constitutional
\nLimitations, at page 744, wherein it is said as follows:–\n<\/p>\n
    “The purpose must be public, and must have reference  to
\nthe  needs  or convenience of the public, and no  reason  of
\ngeneral\t public policy will be sufficient to validate  other
\ntransfers when they concern existing vested rights.”\n<\/p>\n
    Finally, it was urged that there was nothing definite or
\ntangible  in  the Act or in the views  of  the\tlegislatures
\nwhich  gave any indication of the public purpose  for  which
\nthe estates were being acquired and all that could be  gath-
\nered  was that the legislature did not know its own mind  at
\nall and on a vague notion of some future policy directed the
\nacquisition of the estates.\n<\/p>\n
    In\tmy opinion, it will not serve any useful purpose  to
\nexamine each and every argument that was addressed to us  by
\nthe  learned counsel.  There can be no manner of doubt\tthat
\nacquisition of private property by legislation under entries
\n33,  36 and 42 can only be made either for purposes  of\t the
\nUnion  or for purposes of the State or for a public  purpose
\nand that it is unnecessary to state in express terms in\t the
\nstatute\t itself\t the precise purpose for which\tproperty  is
\nbeing taken, provided from the whole tenor and intendment of
\nthe  Act  it could be gathered that the property  was  being
\nacquired either for purposes of the State or for purposes of
\nthe public and that the intention was to benefit the  commu-
\nnity  at large. It may be conceded that the present  statute
\ndoes not disclose the legislature’s mind as to what it would
\nultimately  do\tafter the estates are vested in\t the   State
\nGovernment. Perhaps the State Government has not yet made up
\nits mind how and for what purposes the lands and the tenures
\nacquired will be utilized.  The statute
\n  941<\/span>
\nprovides  in  section  34 for the establishment\t of  a\tland
\ncommission  whose function it will be to advise the  Govern-
\nment as to its agrarian policy.\t Be that as it may, it seems
\nto  me that in spite of the criticism levelled\tagainst\t the
\nAct  by the learned counsel, it cannot be said that the\t Act
\nwould  fall because it fails to postulate a public  purpose.
\nThe Act is intituled “The Bihar Land Reforms Act, 1950”. The
\npreamble  of the Constitution says that India has been\tcon-
\nstituted into a Sovereign Democratic Republic  to secure  to
\nall  its citizens justice, social, economic  and  political.
\nArticle\t 39  of\t the Directive Principles  of  State  Policy
\nstates as follows :-\n<\/p>\n
    “The  State\t shall,\t in particular,\t direct\t its  policy
\ntowards\t securing  that\t the ownership and  control  of\t the
\nmaterial  resources of the community are so  distributed  as
\nbest to subserve the common good; and that the operation  of
\nthe economic system does not result in the concentration  of
\nwealth and means of production to the common detriment.”\n<\/p>\n
    Now\t it is obvious that concentration of big  blocks  of
\nland  in the hands of a few individuals is contrary  to\t the
\nprinciple on which the Constitution of India is based.\t The
\npurpose of the acquisition contemplated by the impugned\t Act
\ntherefore is to do away with the concentration of big blocks
\nof land and means of production in the hands of a few  indi-
\nviduals\t and to so distribute the ownership and\t control  of
\nthe material resources which come in the hands of the  State
\nas  to\tsubserve the common good as best  as  possible.\t  In
\nother  words, shortly put, the purpose behind the Act is  to
\nbring  about  a reform in the land  distribution  system  of
\nBihar  for the general benefit of the community as  advised.
\nThe  legislature is the best judge of what is good  for\t the
\ncommunity, by whose suffrage it comes into existence and  it
\nis  not\t possible for this Court to say that  there  was  no
\npublic\tpurpose behind the acquisition contemplated  by\t the
\nimpugned statute. The purpose of the statute certainly is in
\naccordance with the letter and spirit of the Constitution of
\nIndia.\tIt is fallacious to contend that the object  of\t the
\nAct is
\n942<\/span>
\nto ruin five and a half million people in Bihar.  All  lands
\nin  khas possession of all these persons have not been\tmade
\nthe subject-matter of acquisition.  Their homesteads,  their
\nmineral\t wealth except mines not in operation have not\tbeen
\nseriously  touched  by the provisions of the  Act.   Various
\nother exemptions have also been made in their favour in\t the
\nAct,  apart from the provisions as to compensation which  in
\nthe  case of small zamindaris can by no means be said to  be
\nof  an\tillusory character. It is difficult to hold  in\t the
\npresent\t day conditions of the world that  measures  adopted
\nfor  the welfare of the community and sought to be  achieved
\nby process of legislation so far as the carrying out of\t the
\npolicy\tof nationalization of land is concerned can fall  on
\nthe  ground of want of public purpose.\tThe  phrase  “public
\npurpose” has to be construed according to the spirit of\t the
\ntimes  in  which particular legislation is  enacted  and  so
\nconstrued, the acquisition of the estates has to be held  to
\nhave been made for a public purpose
\n    These observations, however, have no application to\t the
\nacquisition of arrears of rent.\t On the face of\t the   stat-
\nute,  acquisition of fifty per cent. of these  arrears\t was
\nfor the private purpose of the zemindars and the other fifty
\nper  cent. was either for supplementing the revenues of\t the
\nState or for securing  means  for payment of compensation to
\nthe  zemindars.\t The purpose is to discharge the  obligation
\nof  the\t acquirer to pay the price.  The  same\tobservations
\napply  to clause 23 (f) of the statute. That  provision\t has
\nbeen made for the purpose of negativing partially the provi-
\nsions  of the Act regarding payment of compensation.  Clause
\n(4)of article 31 affords no protection against the invalidi-
\nty of these clauses.\n<\/p>\n
     The learned Attorney-General contended that the  acqui-
\nsition of arrears was an acquisition of choses in action and
\nthat the compensation paid for it was fifty per cent. of the
\namount\tof  arrears.  I regret I am unable  to\taccept\tthis
\nsuggestion. It is a well accepted
\n  943<\/span>
\nproposition  of law that property of individuals  cannot  be
\nappropriated  by  the State -under the power  of  compulsory
\nacquisition  for the mere purpose of adding to the  revenues
\nof  the State.\t“The principle of compulsory acquisition  of
\nproperty,” says Cooley (in Vol. II at p. 113, Constitutional
\nLimitations) “is founded on the superior claims of the whole
\ncommunity over an individual citizen but is applicable\tonly
\nin  those cases where private property is wanted for  public
\nuse, or demanded by the public welfare and that no  instance
\nis known in which it has been taken for the mere purpose  of
\nraising\t a revenue by sale or otherwise and the exercise  of
\nsuch a power is utterly destructive  of\t individual   right.
\nTaking\tmoney  under the right of eminent domain,  when\t ‘it
\nmust be compensated  in\t money afterwards is nothing more or
\nless than a forced loan. Money or that which in ordinary use
\npasses\tas such and which the Government may reach by  taxa-
\ntion, and also rights in action which can only be  available
\nwhen  made  to\tproduce money, cannot be  taken\t under\tthis
\npower.\n<\/p>\n
    Willis  in his Constitutional Law, at page\t816,  offers
\nthe same  opinion.  Nichols  on “Eminent Domain” (Vol. 1, at
\npage 97) has expressed a contrary opinion and reference\t has
\nbeen made to the decision in Cincinnati v. Louisville  etc.,
\nR.  Co. C).  An examination of this case, however, does\t not
\ndisclose  that any such proposition was stated therein.\t  It
\nwas  held in that case that a Bill to restrain the  enforce-
\nment of a State statute regulating fire insurance rights was
\na valid law in the State of Kansas.  It was not necessary to
\ndecide in this case whether under the compulsory acquisition
\npower the State has the power to acquire choses in action or
\nmoney,\tbut  it cannot be seriously disputed  that  such  an
\nacquisition  amounts to a forced loan and that\tthe  desired
\nresult\tcan be more appositely obtained in exercise  of\t the
\npolice\tpower  of  the State than of the  power\t of  eminent
\ndomain\tor compulsory acquisition of property and that\tcom-
\npensation in such a ease is the same amount of money
\n(1)223 U.S. 390.\n<\/p>\n
944<\/span><\/p>\n
that is being taken and in the case of a chose in action the
\namount of money that it would produce.\tIn this situation it
\ncannot\tbe  held  that fifty per cent.\tof  the\t outstanding
\narrears was compensation in any sense of that expression for
\nthis acquisition.  The true position is that the State\ttook
\nover  all the arrears and decided to refund fifty per  cent.
\nof them and forfeit the rest. The validity of this  acquisi-
\ntion has to be decided independently of the acquisition\t  of
\nthe estates.  It has no connection with land reform or\twith
\nany public purpose.  It stands on the same footing as  other
\ndebts  due to zamindars or their other movable properties,
\nwhich  it was not the object of the Act to acquire.  As\t al-
\nready  stated, the only purpose to support this\t acquisition
\nis  to\traise  revenue to pay compensation to  some  of\t the
\nzamindars whose estates are being taken.  This purpose\tdoes
\nnot fall within any definition, however wide, of the  phrase
\n“public\t purpose”  and the law therefore to this  extent  is
\nunconstitutional.\n<\/p>\n
    One or two illustrations of the public purpose  involved
\nin  this  provision will bring out its\ttrue  character.  In
\nAppeal\tNo.  299 of 1951, the arrears of Darbhanga  Raj\t  on
\n26th  September,  1950, was a sum of Rs. 30,81,967.  Half of
\nthis amount is payable to the Raj and the other half  stands
\nforfeited.  In the case or Raja P.C. LaI (Appeal No. 330  of
\n1951),\tthe rents due were Rs. 10,26,103, and in Appeal\t No.
\n339 of 1951, the amount is Rs. 9,52,937.\n<\/p>\n
    Next  it was contended that the impugned Act is a  fraud
\non  the Constitution and therefore void.  It was  said\tthat
\nthe  Act, while pretending to comply with the  Constitution,
\nevades\tand  invades  it; that the Act\tmerely\tpretends  to
\ncomply\twith the Constitution when it says that it  provides
\nfor payment of compensation but in effect it has produced  a
\nscheme for non-payment of compensation by shift and  contri-
\nvance.\tReference was made to certain provisions of the\t Act
\nof a confiscatory nature, already noticed in this  judgment.
\nSection\t 9 was mentioned under which mines in the course  of
\ndevelopment and fetching no income yet
\n  945<\/span>
\nvest  in the State without payment Of compensation. No\tcom-
\npensation  has\tbeen made payable in respect of\t forests  or
\ntrees  which  were not fetching any income at  the  date  of
\nvesting. In a nutshell, it was contended that the object  of
\nthe  Act was to acquire properties of the zemindars by\tpay-
\nment of compensation (so-called) out of the moneys belonging
\nto the zemindars themselves and that in some cases they\t had
\nnot only to give up their estates for nothing but would have
\nto pay something, in addition, to the State, if the  princi-
\nples specified in the Act were to  apply. It was pointed out
\nin the case of the Maharaja of Darbhanga that his  zemindari
\nwould  be  acquired by the State Government  without  paying
\nanything but that the Maharaja would have to pay out of\t his
\nown  money six lakhs to the Government.\t In Case No. 330  of
\n1951 (Raja P.C. Lall), it was said that Government would get
\nthe  zemindari\tfree, while in Case iNTo. 339  of  1951\t the
\nState  will get the zemindari and two and half lakhs out  of
\nthe  arrears, while in Case No. 331 of 1951,  (Chota  Nagpur
\nappeal) the zemindari will be acquired on payment of a small
\nsum  of\t Rs. 14,000 only.  Nothing will be  payable  to\t the
\nzamindars  out of the public exchequer. Attention was  drawn
\nto  the observations of Shearer J. in the following  passage
\n:-\n<\/p>\n
    “The legislature, it is clear, are optimistic enough  to
\nhope  that this reform may conceivably be  effected  without
\nraising\t any  great loan.  The conclusion, to  my  mind,  is
\nirresistible  that the intention is to take over  the  great
\nestates in the province, paying no compensation or the\tmost
\ninadequate compensation, and out of the considerable profits
\nwhich  are likely to be derived from them, to take over,  in
\ncourse of time, the remaining estates and tenures.  In other
\nwords,\ta  comparatively small minority\t belonging  to\tthis
\nparticular class are to be expropriated without compensation
\nor with the most inadequate compensation in order that, when
\nthe great majority are expropriated, they receive  compensa-
\ntion which will not be\tinadequate and may, quite  possibly,
\nin many cases, be more then adequate”\n<\/p>\n
122<\/span>
\n946<\/span><\/p>\n
    Mr.\t Das  vehemently contended that the  statute  was  a
\nfraud  on republican Constitution which promised to  deprive
\nno one of his property without payment of  compensation;that
\nit pretended to make elaborate provisions for paying it\t but
\nthat  by shift and contrivance it has provided for the\teva-
\nsion  of  its payment.\tReference was made to a\t passage  in
\nMoran  Proprietary Ltd. v. Dy. Commissioner of Taxation\t for
\nNew South Wales (1), which is in these terms :-\n<\/p>\n
    “Cases may be imagined in which a purported exercise  of
\nthe  power  to grant financial assistance under\t section  96
\nwould be merely colourable.  Under the guise or pretence  of
\nassisting a State with money, the real substance and purpose
\nof  the\t Act might simply be to\t effect\t discrimination\t  in
\nregard\tto taxation.  Such an Act might well be ultra  vires
\nthe  Commonwealth Parliament.  Their  Lordships\t  are  using
\nthe language of caution because such a case may never arise,
\nand also because it is their usual practice in a case  deal-
\ning with constitutional matters to decide no more than their
\nduty  requires.\t They will add only that, in the  view\tthey
\ntake\tof   the   matter,   some   of\t  the\t legislative
\nexpedients–objected  to as ultra vires by Evatt J.  in\t his
\nforcible  dissenting  judgment may well be  colourable,\t and
\nsuch   acts  are  not  receiving  the  approval\t  of   their
\nLordships.”\n<\/p>\n
    It\twas urged that a statute could be declared to  be  a
\nfraud  on the Constitution on the same principles ,that\t are
\napplicable to cases of corporations or of executive  bodies,
\nwhenever  they act in excess or in abuse of their  statutory
\npowers.\t  Reliance  was\t placed in this\t connection  on\t the
\nobservations of Abbott C.J. in Fox v. Bishop of Chester (2),
\nwhich are in these terms :–\n<\/p>\n
    “Our judgment is founded upon the language of the  Stat-
\nute 31 Eliz. c. 6, and the well-known principle of law, that
\nthe  provisions of an Act of Parliament shall not be  evaded
\nby shift or contrivance,”\n<\/p>\n
(1) [1940] A.C. 838, at p. 858.\n<\/p>\n
(2)107 E.R. 520 at p. 527.\n<\/p>\n
947<\/span><\/p>\n
    In\tFox v. Bishop of Chester(1), it was said that  there
\nmay  be fraud on the law, an insult roan Act of\t Parliament,
\nthough in the language and text of the law no such fraud may
\nhave been mentioned. In Westminsyter Corporation v. London &
\nNorth Western Railway(2), it was observed: –\n<\/p>\n
    “It\t is  well settled that a public body  invested\twith
\nstatutory  powers such as those conferred upon the  corpora-
\ntion  must take care not to exceed or abuse its\t powers.  It
\nmust  keep within the limits of the authority  committed  to
\nit. It must act in good faith.\tAnd it must act\t reasonably.
\nThe  last proposition is involved in the second, if  not  in
\nthe first.”\n<\/p>\n
    In Maharaja Luchmeswar Singh v. Chairman of the Darbhan-
\nga  Municipality (3), it was pointed out that the offer\t and
\nacceptance of one rupee was a colourable attempt to obtain a
\ntitle under the Land Acquisition Act without paying for\t the
\nland.  In Alexander v. Brame(4), it was observed that if  it
\nhad appeared that sufficient ground existed for holding that
\nthe  deed in question was a device on the part of Mr.  Brame
\nfor  the  purpose  of evading and eluding  the\tstatute,  by
\nkeeping seemingly and colourably clear of 1t, while  meaning
\nsubstantially  to infringe it, a view might have been  taken
\nfavourable to the appellants.\n<\/p>\n
    All these principles are well-settled.  But the question
\nis  whether they have any application to the  present  case.
\nIt  is by no means easy to impute a dishonest motive to\t the
\nlegislature of a State and hold that it acted main fide\t and
\nmaliciously in passing the Bihar Land Reforms Act or that it
\nperpetrated  a\tfraud on the Constitution by  enacting\tthis
\nlaw.  It may be that some of the provisions of the  Act\t may
\noperate harshly on certain persons or a few of the zamindars
\nand  may  be bad if they are in excess\tof  the\t legislative
\npower  of the Bihar Legislature but from  that\tcircumstance
\nit-does\t not follow that the-whole enactment is a  fraud  on
\nthe  Constitution.   From the premises that the\t estates  of
\nhalf a dozen zemindars may be expropriated
\n  (1)6 E.R. 581\t\t\t\t(3) 17 I.A. 90.\n<\/p>\n
  (2) [1905] A.C. 426 at p. 430.\t(4) 44 E.R. 205.\n<\/p>\n
948<\/span><\/p>\n
without\t payment  of compensation, one cannot  jump  to\t the
\nconclusion that the whole of the enactment is a fraud on the
\nConstitution  or  that all the provisions aS to\t payment  of
\ncompensation  are illusory.  At best they are illusory\tonly
\nin  the case of some only of the large body of\tpersons\t af-
\nfected by it.\n<\/p>\n
Section\t 23  (f), however, in my opinion,  is  a  colourable
\npiece  of legislation. It has been enacted under power\tcon-
\nferred\tby legislative entry 42 of List III.It is  well-set-
\ntled that Parliament with limited powers cannot do indirect-
\nly what it cannot do directly. (Vide South Australia v.\t The
\nCommonwealth(1)\t and Madden v. Nelson & Port  Sheppard\tR.W.
\nCo.(2).\t   In  Deputy Federal Commissioner of  Taxation\t (N.
\nS.W.) v.W.R. Moran  Proprietary\t Ltd. (3),  it, was observed
\nas follows :–\n<\/p>\n
 “Where\t the law-making authority is of a limited or  quali-
\nfied  character,  obviously it may be necessary\t to  examine
\nwith  some strictness the substance of the  legislation\t lot
\nthe  purpose of determining what it is that the\t legislature
\nis really doing.  In such cases the court is not to be\tover
\npersuaded    by\t  the\tappearance   of\t   the\t  challenged
\nlegislation   ……  In that case, this court\tapplied\t the
\nwell  known  principle that in\trelation  to  constitutional
\nprohibitions  binding a legislature,that legislature  cannot
\ndisobey\t the  prohibition merely by  employing\tan  indirect
\nmethod of achieving exactly the same result  ………\t The
\nsame  issue may be whether legislation which at first  sight
\nappears to conform to constitutional requirements is colour-
\nable or disguised. In such cases the court may have to\tlook
\nbehind names, forms and appearances to determine whether  or
\nnot the legislation is colourable or disguised.”\n<\/p>\n
    The\t provision herein impeached has not been arrived  at
\nby laying down any principles of paying compensation but  in
\ntruth,\tis designed to deprive a number of people  of  their
\nproperty without payment of compensation.  The State  legis-
\nlature\tis  authorised to pass an Act in  the  interests  of
\npersons deprived of
\n  (1) 65 C.L.R. 373.\t    (3) 61 C.L.R. 735 at p. 793.
\n  (2) [1899] A.C. 626.\n<\/p>\n
 949<\/span><\/p>\n
property  under entry 42. They could not be permitted  under
\nthat  power to pass a law that operates to the detriment  of
\nthose  persons and the object of which provision is  to\t de-
\nprive them of the right of compensation to a certain extent.
\n    In\tthis connection it is now convenient to examine\t the
\ncontention of the learned Attorney-General as to the  inter-
\npretation  of  legislative head entry 42 of  List  III.\t  He
\ncontended that under this head it was open to the Parliament
\nor  the\t State\tLegislature to make a law  laying  down\t the
\nprinciples  which may result in non-payment of\tcompensation
\nor which may result in not paying any compensation whatsoev-
\ner.   I cannot possibly assent to any such  construction  of
\nthis entry The entry reads thus :–\n<\/p>\n
    “Principles on which compensation for property  acquired
\nor requisitioned for purposes of the Union or of a State  or
\nfor  any other public purpose is to be determined,  and\t the
\nform and manner in which-such compensation is to be given.”\n<\/p>\n
    This  head of legislation seems to have  been  expressly
\nmentioned  in  the Concurrent List not only in view  of\t the
\naccepted principle of law that in cases of compulsory acqui-
\nsition of property compensation has to be made, but also  in
\nview of the clear and mandatory provisions of article  31(2)
\nwhich require that a law authorising the taking or  acquisi-
\ntion  of  property will be void if it does not\tprovide\t for
\npayment\t of compensation for the property acquired  or\tdoes
\nnot  either  fix the amount of compensation or\tspecify\t the
\nprinciples on which and the manner in which the compensation
\nis to be determined and given.\tThe power of legislation  in
\nentry 42 is for enacting the principles of determining\tsuch
\ncompensation and for paying it.\t The principles to be enact-
\ned are for determining such compensation and for paying\t it.
\nThe principles to be enacted are for determining the equiva-
\nlent  price of the property taken away.\t It may be that\t the
\ndetermination of the equivalent may be ‘left for  ascertain-
\nment on the basis of certain uniform rules;\n<\/p>\n
950<\/span><\/p>\n
for  instance, it may be laid down that the  principles\t lot
\ndetermining  compensation  will be the rental basis  or\t the
\nmarket\tvalue  of the property etc. But it is  difficult  to
\nimagine\t that there can be any principles for nonpayment  of
\ncompensation or for negativing the payment of  compensation.
\nNo  principles are required to be stated for non-payment  of
\ncompensation.  A simple statement that no compensation\twill
\nbe  paid is quite enough to attain the object. I know of  no
\nprinciples for determination of compensation which result in
\nits nonpayment except in the Act under notice.\tAll legisla-
\ntive  heads  have to be reasonably construed and  the  power
\ngiven  under  entry 42 is a positive power  given  to  bring
\nabout  the  result of payment of compensation and  not\tnon-
\npayment of the same. The key words in the entry are “compen-
\nsation” and “given”.  Anything that is unrelated to  compen-
\nsation\tor the giving of it cannot be justified by  legisla-
\ntion  under entry 42. Reference was made in this  connection
\nto  the United Provinces v. Atiqa Begum (1) in which it\t was
\nheld that the descriptive words under the legislative,head ‘
\n‘collection of rents” are wide enough to permit\t legislation
\nin respect of remission of rents and that under item 22.  of
\nthe  Government\t of India Act, 1935,  the  legislative\thead
\n“forests”  include the power to legislate with\trespect\t not
\nonly to afforestation but also to disafforestation and\tthat
\nthe legislative head “fisheries” would include the power  to
\nlegislate on the prohibition of fishing altogether.  In\t  my
\nopinion,  these\t analogies have no application to  the\tcon-
\nstruction  of the language employed in entry 42.  These\t en-
\ntries  are not in pari materia to entry 42. Perhaps  a\tmore
\nanalogous case on the point is the decision in\tAttorneyGen-
\neral  for Ontario v. Attorney-General for the  Dominion\t (2)
\nThe question there was whether the legislative head “Regula-
\ntion of Trade and Commerce” included the power to abolish it
\nalso.\tTheir  Lordships  of the  Privy\t Council  made\t the
\nfollowing  observations\t which appear at  page\t363  of\t the
\nreport :–\n<\/p>\n
(1) [1940] F.C.R. 110 at p. 135.      (2) [1896] A.C. 348.\n<\/p>\n
951<\/span><\/p>\n
    “A\tpower  to regulate assumes the conservation  of\t the
\nthing  which  is to be made the subject of  regulation.\t  In
\nthat view, their Lordships are unable to regard the prohibi-
\ntive  enactments of the Canadian statute as  regulations  of
\ntrade  and commerce  ….  there is marked  distinction\t be-
\ntween  the  prohibition\t or prevention of a  trade  and\t the
\nregulation or governance of it.”\n<\/p>\n
    An entry concerning payment of compensation in no  sense
\nincludes  legislative power of non-payment of  compensation.
\nThe whole purpose of this head of legislation is to  provide
\npayment of compensation and not the confiscation of  proper-
\nty.\n<\/p>\n
    The\t provision that four per cent. to twelve and a\thalf
\nper  cent. has to be deducted out of the net income  on\t ac-
\ncount of costs of works for the benefit of raiyats etc.\t has
\nno  relation to real facts.  Even the earlier  provision  in
\nclause\t(d) that costs of management have to be deducted  up
\nto twenty per cent. has in its entirety no real relation  to
\nactual\tstate  of affairs.  As already pointed\tout,  it  is
\npartially  of a confiscatory character in sufficient  number
\nof  cases.   The deduction under clause (f) from  the  gross
\nincome is merely a deduction of an artificial character, the
\nwhole object being to inflate the deductions and thus  bring
\nabout  non-payment of compensation.   Such  legislation,  in
\nmy  opinion, is not permitted by entry 42 of List III.\tSup-
\npose, for instance, instead of a twelve and a half per cent.
\nit declared that a deduction of seventy per cent. be made on
\nthat  account.\t Could it be said by any  reasonable  person
\nthat such a piece of legislation was legislation on  princi-
\nples  of  determining compensation or of making\t payment  of
\ncompensation,  This provision, therefore, in my opinion\t has
\nbeen inserted in the Act as a colourable exercise of  legis-
\nlative power under entry 42 and is unconstitutional on\tthat
\nground.\t The  power has not been exercised under  any  other
\nlegislative  head authorizing the State legislature to\tpass
\nsuch  a law.  Legislation ostensibly under one or  other  of
\nthe  powers conferred by the Constitution but in  truth\t and
\nfact not falling within the content of that
\n952<\/span>
\npower is merely colourably constitutional but is really\t not
\nso.  (Vide Quebec v. Queen Insurance Co. (D; Russell v.\t The
\nQueen(2).]  Reference in this connection may also be made to
\nthe decision of the Privy Council in Madden v. Nelson & Fort
\nSheppard R.W. Co. (3). This clause therefore is\t unconstitu-
\ntional\tlegislation made colourably valid under exercise  of
\nlegislative power under entry 42 of List II.
\n    It\twas contended by Mr. Das that if some provisions  in
\nthe  Act  are ultra vires, the statute as a  whole  must  be
\npronounced  to be ultra vires and that it could not be\tpre-
\nsumed  that the legislature intended to pass it in what\t may
\nprove  to be a truncated form.\tThe real question to  decide
\nin all such cases is whether what remains is so inextricably
\nbound  up with the part declared invalid that  what  remains
\ncannot\tindependently survive, or, as it has sometimes\tbeen
\nput, whether on a fair review of the whole matter it can  be
\nassumed that the legislature would have enacted at all\tthat
\nwhich  survives\t without  enacting the part  that  is  ultra
\nvires.\t Looking at the Act as a whole, it seems to me\tthat
\nthe offending provisions of the Act are not so\tinextricably
\nbound  up with the part that is valid as to hit or kill\t the
\nremainder  also. In this case a presumption cannot be  drawn
\nthat the legislature would not have enacted the Act  leaving
\nout the two or three provisions which have to be declared to
\nbe invalid.\n<\/p>\n
    Mr.\t Das also raised a minor point that the\t Bihar.\t Act
\nwas  unenforceable.  Reference was made to section 32(2)  of
\nthe Act which runs as follows :–\n<\/p>\n
    “The  amount  of compensation so payable in terms  of  a
\ncompensation  Assessment-roll as finally published shall  be
\npaid  in  cash or in bonds or partly in cash and  partly  in
\nbonds. The bonds shall be either negotiable or\tnon-negotia-
\nble  and non-transferable and be payable in forty equal\t in-
\nstalments to the person named therein and shall carry inter-
\nest at two and a half per centum per annum with effect\tfrom
\nthe date of issue,”\n<\/p>\n
 (1) (1878) 3 App. Cas. 1090.\t\t(3) [1899] A.C. 626,
\n (1) 7 (1882) App. Can. 841.\n<\/p>\n
    953<\/span><\/p>\n
    It was contended that as no date has been mentioned\t for
\npayment\t of  compensation and no interval  has\tbeen  stated
\nbetween\t the  instalments mentioned therein and it  has\t not
\nbeen  mentioned\t how much would be payable in cash  and\t how
\nmuch in bonds, the Act could not be enforced.  Section 43 of
\nthe  Act  empowers the State Government to  make  rules\t for
\ncarrying  out  the purposes of the Act.\t Clause\t (p)  is  in
\nthese terms :–\n<\/p>\n
    “The  proportion in which compensation shall be  payable
\nin  cash  and  in bonds and the manner of  payment  of\tsuch
\ncompensation under sub-sections (2) and (3) of section 32.”\n<\/p>\n
    It\tseems clear that the Act has made sufficient  provi-
\nsion  for enforcing its provisions if section 32(2) is\tread
\nwith the provisions contained in section 43 and it cannot be
\nsaid that the Act is unenforceable for this reason.
\n The  last point urged by M. Das was that section 32 (2)  of
\nthe  Act  was void as in it legislative functions  had\tbeen
\nabdicated  by the legislature in favour of the executive.  A
\ntwo-fold attack was levelled against this provision.  First-
\nly, it was said that the Constitution having in entry 42  of
\nList  III  of the Seventh Schedule vested authority  in\t the
\nlegislature  to make laws on the question of the  principles
\nas to the payment of compensation and the manner and form of
\nits payment, in other words, it having trusted these matters
\nto the care, judgment and wisdom of the legislature, it\t had
\nno power to delegate these matters to the executive. Second-
\nly, it was contended that section 32 (2) delegated essential
\nlegislative power to the executive which it was\t incompetent
\nto  do.\t Reference was made to the opinion of this Court  in
\nSpecial Reference No. 1 of 1950.\n<\/p>\n
    The matters alleged to have been delegated are these :–\n<\/p>\n
    1.\tThe  determination  of the proportion  of  the\tcash
\npayment\t to the payment by giving bonds, negotiable or\tnon-
\nnegotiable.\n<\/p>\n
123<\/span>
\n954<\/span><\/p>\n
    2.\tThe  determination of the period  of  redemption  of
\nthese bonds.\n<\/p>\n
     3.\t The period of interval between the several  instal-
\nments.\n<\/p>\n
     The section enacts that the compensation payable  shall
\nbe paid in cash or in bonds or partly in cash and partly  in
\nbonds.\tIt therefore determines the principle that the\tpay-
\nment of compensation will be in these two forms.  It further
\nenacts that bonds shall be either negotiable or non-negotia-
\nble  and non-transferable. It therefore also determines\t the
\nnature of the bonds that would be issued.  It further enacts
\nthat  the payment, if made in bonds, will be paid  in  forty
\nequal instalments.  It is obvious that the time of   redemp-
\ntion  of the bonds will be co-terminous with the  period  of
\nthe instalments. It has further enacted that the bonds\twill
\ncarry interest at the rate of two and a half per cent.\tWhat
\nhas been left to the executive is the question of the deter-
\nmination  of the proportion in which compensation is  to  be
\npaid in cash or in bonds and the fixation of the interval of
\nthe instalments. It seems to me that the delegation to\tthis
\nextent is permissible in view of the decision of this  Court
\nin  The State of Bombay v. Narottamdas Jethabai<\/a> (1) and\t the
\ndecision of their Lordships of the Privy Council in Queen v.
\nBurah (2).  The legislature applied its mind to the question
\nof  the\t method and manner of payment of  compensation.\t  It
\nsettled\t its policy and the broad principles.  It  gave\t the
\nState  Government the power to determine matters  of  detail
\nafter having settled vital matters of policy.  It cannot  be
\nsaid  that  the legislature did not apply its  mind  to\t the
\nsubjectmatter  of  the legislation and did not\tlay  down  a
\npolicy. The proportion in which compensation was payable  in
\ncash  or in bonds or whether the whole of it was to be\tpaid
\nin  cash is a matter which only the State  Government  could
\nfix  and  similarly,  the interval of  instalments  and\t the
\nperiod\tof redeemability of the bonds were also\t matters  of
\ndetail which the executive could
\n(1) [1951] S.C.R. 51.\t\t (2) (1877) 5 I.A. 178,
\n    955<\/span>
\nmore  appositely  determine in exercise of  its\t rule-making
\npower.\t It cannot be said in this case that  any  essential
\nlegislative  power  has been delegated to the  executive  or
\nthat  the legislature did not discharge the trust which\t the
\nConstitution had reposed in it.\t If the rule-making authori-
\nty abuses its power or makes any attempt to make the payment
\nillusory, the expropriated proprietor will not be without  a
\nremedy.\n<\/p>\n
    For\t the reasons given above, I am of the  opinion\tthat
\nsection\t 32(2) of the Act cannot be held bad on\t the  ground
\nthat it is a piece of unregulated delegation of\t legislative
\npower.\n<\/p>\n
    Mr. Das’s contention in Cases Nos. 319, 327, 330 and 332
\nof 1951 and in the other cases in which he appeared were the
\nsame.\n<\/p>\n
    Mr.\t Choudhury  appearing in Cases Nos. 309 and  328  of
\n1951  raised  a large number of points, some  of  which\t are
\ncovered\t by  the  arguments of Mr. P.R. Das,  which  I\thave
\ndiscussed  already. The rest seem to me to be  unsubstantial
\nbut it is necessary to notice a few of them upon which great
\nstress\twas  laid  by the learned  counsel.   Mr.  Choudhury
\ncontended  that the field of legislation on the question  of
\nprinciples of determination of compensation and the mode and
\nmanner of payment of such compensation was already  occupied
\nby  the\t Land Acquisition Act which was an existing  law  of
\nParliament  and, therefore, the State Legislature could\t not
\nenter  on  this\t field and legislate on\t the  principles  of
\npayment of compensation.  This argument really has no force,
\nbecause\t the  provisions as to\tassessment  of\tcompensation
\nenacted\t in the Land Acquisition Act only apply to  acquisi-
\ntions  that  are made by notification under  that  Act.\t Its
\nprovisions  have no application to acquisitions\t made  under
\neither\tlocal or central laws unless they  are\tspecifically
\nmade applicable by the provisions of these statutes.
\n    Another point put forward by him, that articles 31-A and
\n31-B  of  the  Constitution  cannot   affect  pending  cases
\ncannot be seriously entertained because retrospectivity\t  is
\nwrit large on the face of those
\n956<\/span>
\narticles.   Similarly, I cannot but regard as  unsubstantial
\nhis  contention\t that  transference  of estates of zamindars
\nto  the\t State under the provisions of\ta  statute  requires
\nregistration.  The only other point seriously pressed by him
\nis  that the Bihar Legislature had no power to\tissue  bonds
\nwithout\t complying with the procedure laid down\t in  article
\n293 of the Constitution.  It is enough to state with  regard
\nto  this  point\t that the stage for issuing  bonds  has\t not
\narrived\t as  yet.  When the State legislature  issues  bonds
\nwhich  are  unenforceable or which it is  not  competent  to
\nissue, the contention can possibly be raised.
\n    Mr. Chakravarty who appeared in three  cases, Nos.\t326,
\n337,  and 344 of 1951, urged that as regards  trust  proper-
\nties,  the  Bihar legislature had no power to  acquire\tthem
\nwithout payment of full compensation as certain\t educational
\nand  charitable\t institutions  would  thereby  be  seriously
\naffected. He was, however, unable to point out how the Bihar
\nLegislature had no power to acquire trust properties.
\n    Mr. Raghav Saran who appeared in Cases Nos. 310, 311 and
\n329of  1951,  raised a novel point that the  Act  not  being
\nreasonable and just,  the  Supreme Court had jurisdiction to
\ndeclare\t it void on that ground.  He was unable\t to  support
\nhis argument on any reasonable basis.  The constitutionality
\nof  a  statute passed by a competent legislature  cannot  be
\nchallenged on the ground that the law made is not reasonable
\nor just.\n<\/p>\n
    Counsel  who appeared in Cases Nos. 807, 313, 815,\t320,
\n321, 822 and-331 and Petition No, 612 of 1951 merely adopted
\nthe points urged by Mr. P.R. Das.\n<\/p>\n
    The\t result\t is that the provisions of  the\t Bihar\tLand
\nReforms Act contained in sections 4 (b) and 23 (f) are\theld
\nnot  constitutional.  The rest of the Act is good.  The\t ap-
\npeals  are therefore allowed except to the extent  indicated
\nabove. A writ of mandamus will issue to the State Government
\nnot to give effect to the two provisions mentioned above and
\nheld unconstitutional.\n<\/p>\n
957<\/span><\/p>\n
Petition No. 612 of 1951 under article 32 is dismissed as it
\nis  not\t maintainable; no infringement\tof  any\t fundamental
\nright has been alleged therein.\t There was no appearance for
\nthe respondents in Cases Nos. 18 of 1950 and 299 of 1951 and
\nno opposition to the appeals being allowed. They are accord-
\ningly  allowed. I will make no order as to costs in  any  of
\nthese appeals and petition.\n<\/p>\n
    MUKHERJEA  J.–I  had the advantage of  going  carefully
\nthrough the judgment of my learned brother Mahajan J. and  I
\nconcur entirely in the conclusions arrived at by him.  In my
\nopinion, the Bihar Land Reforms Act of 1950 is not unconsti-
\ntutional, with the exception of the provisions contained  in
\nsection\t 4  (b) and 23(f) of the Act  and  these  provisions
\nalone must be held to be void and inoperative.
\n    As regards section 23(f) of the Bihar Land Reforms\tAct,
\nmy learned brother has based his decision on the ground that
\nthe  provision\tof this clause constitutes a  fraud  on\t the
\nConstitution, and although in enacting the  provision,\t the
\nlegislature  purported to exercise its powers  under   entry
\n42  of the Legislative List III in Schedule VII of the\tCon-
\nstitution,.  in reality it is a clourable exercise  of\tthat
\npower  under  which  a\tthing  has  been done which  is\t not
\ncontemplated  by  that entry at all  and  lies\toutside\t its
\nambit.\tI  agree with the line of reasoning  adopted  by  my
\nlearned\t brother  in this connection and  there\t is  nothing
\nfurther which I can usefully add.\n<\/p>\n
    As\tregards section 4 (b)it has been held by my  learned
\nbrother that the provision of this clause is unconstitution-
\nal as it does not disclose any public purpose  at all.\t The
\nrequirement  of\t public purpose is  implicit  in  compulsory
\nacquisition of property by the State or, what is called, the
\nexercise of its power of eminent domain.  This condition  is
\nimplied in the provision of article 31 (2) of the  Constitu-
\ntion and although the enactment in the present case fulfills
\nthe requirements of clause (3) of article 31 and as
\n958<\/span>
\nsuch  attracts the operation of clause (4) of that  article,
\nmy  learned brother has taken the view that the bar  created
\nby  clause (4) is confined to the question  of\tcompensation
\nonly and does not extend to the existence or necessity of  a
\npublic\tpurpose\t which,\t though implicit in,  has  not\tbeen
\nexpressly provided for by clause (2)of the article.  For  my
\npart I would be prepared to assume that clause (4)of article
\n31 relates to everything that is provided for in clause\t (2)
\neither\tin express terms or even impliedly and\tconsequently
\nthe  question of the existence of a public purpose does\t not
\ncome within the purview of our enquiry in the present  case.
\nEven  then  I would hold that the same reasons,\t which\thave
\nweighed with my learned brother in  declaring section 23 (f)
\nof  the\t impugned Act to be  unconstitutional,\tapply\twith
\nequal, if not greater, force to section 4 (b) of the Act and
\nI  have\t no hesitation in agreeing with him as\tregards\t his
\ndecision  on the constitutionality of this provision of\t the
\nAct  though  I\twould prefer to adopt a\t different  line  of
\nreasoning in support of the same.\n<\/p>\n
    Section  4 (b) of the Bihar Land Reforms Act lays  down,
\nas  one of the results of the publication of a\tnotification
\nunder  section\t3  (1)of  the  Act  that  “all\tarrears\t  of
\nrents  ……….  and all cesses together with interest, if
\nany, due thereon for any period prior to the date of vesting
\nwhich were recoverable in respect of the estate or tenure by
\nthe proprietor or tenureholder and the recovery of which was
\nnot  barred  by any law of limitation shall vest in  and  be
\nrecoverable by the State”.  The explanation attached to\t the
\nclause further provides that for purposes of  the clause the
\nexpression  “arrears of rent” shall include arrears  in\t re-
\nspect of  which\t suits\twere  pending on the, date of  vest-
\ning  or\t in respect of\twhich decrees were  obtained  before
\nthat  date  together  with costs allowed  by  such  decrees.
\nUnder  section 24 of the Act, 50% of these arrears  of\trent
\nare directed to be added to the amount of compensation money
\npayable lot the estate or interest calculated in  accordance
\nwith the provisions of the Act.\n<\/p>\n
     959<\/span><\/p>\n
    The\t arrears of rent whether merged in decrees  or\tnot,
\nwhich were due to the landlord for a period anterior to\t the
\ndate  of  notification under section 3(1) of the  Act,\twere
\nundoubtedly  the property of the landlord,  irrespective  of
\nhis  interest in the estate or tenure which is the  subject-
\nmatter\tof acquisition. Such arrears could not vest  in\t the
\nState  as a normal result of acquisition of any\t estate\t  or
\ninterest   therein,   and  it  is conceded  by\tthe  learned
\nAttorney-General  that article 31-A of the Constitution\t has
\nno  application\t so far as these arrears of  rent  are\tcon-
\ncerned.\t The  arrears of rent, therefore, are  the  subject-
\nmatter\tof  separate and indipendent acquisition  under\t the
\nBihar Land Reforms Act, if the word “acquisition” can at all
\nbe appropriate to cases of this description.
\n    It cannot be disputed that in every Government there  is
\ninherent   authority   to appropriate  the property  of\t the
\ncitizens for the necessities of the State and constitutional
\nprovisions  do not confer this power though  they  generally
\nsurround it with safeguards.  The restraints invariably\t are
\nthat  when private property is taken, a pecuniary  compensa-
\ntion  must be paid(1).\tThus eminent domain is an  attribute
\nof sovereign power supposed to be tempered by a principle of
\nnatural\t law  which  connects its exercise with\t a  duty  of
\ncompensation
\n    Possibly  under  the impression that the  sacredness  of
\nprivate\t property  should not be confided to  the  uncertain
\nvirtues\t of the party in power for the time being, the\tCon-
\nstitution-makers  of our country have declared it as one  of
\nthe  fundamental  rights  that no property  shall  be  taken
\npossession of or acquired for public purpose unless the\t law
\ndirecting its appropriation makes provision for compensation
\nin  the\t manner laid down in article 31 (2). Clause  (4)  of
\narticle\t 31  does  not do away with the\t obligation  to\t pay
\ncompensation;  it merely lays down that laws which  are\t re-
\nferred to in clause (3) of the article would be immune\tfrom
\njudicial scrutiny on the ground of inadequacy of the
\n(1)Vide\t Cooley on Constitutional Limitations, Vol.  II,  p,
\n1110<\/span>
\n(2)Vide Encyclopaedia of Social Science, Vol. V, p. 493.\n<\/p>\n
960<\/span><\/p>\n
amount\tof compensation or the impropriety of the  principle
\nfor assessing the same as provided for in the enactment. The
\nclause presupposes however that the enactment is the  result
\nof a valid exercise of a legislative  power conferred on the
\nlegislature  by the appropriate entries in  the\t Legislative
\nLists and if the legislature acts outside these entries\t or,
\nunder  the  pretence of acting within them,  does  something
\nwhich is in flat contradiction with its contents, clause (4)
\nof article 31 could not be invoked to afford any  protection
\nto such legislation.\n<\/p>\n
    Clause (4) (b) of the impugned Act read with the  provi-
\nsion  of section 24 of the same, empowers the State  Govern-
\nment  to appropriate all the arrears of rent due to a  land-
\nlord  at a particular time and the only obligation it  casts
\non  the\t Government in this respect is to allow 50%  of\t the
\namount\tthus  appropriated  as solatium\t for  the  so-called
\nacquisition.  On  the face of it the  legislative  provision
\npurports  to have been made in exercise of the\tpowers\tcon-
\nferred\ton the State legislature under entry 30 of  List  II
\nand  entry 42 of List III of Schedule VII of  the  Constitu-
\ntion.  In my opinion, this is a mere device or pretence\t and
\nthe real object which the legislation intended to accomplish
\nis  to deprive a man of his money which is not ordinarily  a
\nsubject-matter of acquisition, in exercise of what are known
\nas powers of eminent domain by the State, without giving him
\nanything  in exchange; and under the guise of  acting  under
\nentry  42  of  List III, the legislature has  in  truth\t and
\nsubstance evaded and nullified its provisions altogether.
\n    The general principles, which distinguish the powers  of
\neminent\t domain from other powers of the State\tunder  which
\nthe sacrifice of the proprietary interest of a citizen could
\nbe  demanded or imposed, are fairly well-known. As has\tbeen
\nobserved by Cooley in his Constitutional Limitations  “every
\nspecies of property which the public needs  may require\t and
\nwhich  the Government cannot lawfully appropriate under\t any
\nother right, is subject to be seized and
\n    961<\/span>
\nappropriated under the right of eminent domain (1). Money as
\nsuch and also rights in action are ordinarily excluded\tfrom
\nthis List by American jurists and for good reasons(2). There
\ncould  be  no possible necessity for taking either  of\tthem
\nunder the power of eminent domain.  Money in the hands of  a
\ncitizen\t can  be  reached by the exercise of  the  power  of
\ntaxation, it may be confiscated as a penalty under  judicial
\norder  and  we can even conceive of cases  where  the  State
\nseizes or confiscates money belonging to or in the hands  of
\na  citizen under the exercise of its ‘police’ powers on\t the
\nground\tthat such fund may be used for unlawful purposes  to
\nthe  detriment\tof the interest of the\tcommunity.  But,  as
\nCooley\thas pointed out (3), taking money under\t the   right
\nof  eminent   domain when it must be  compensated  by  money
\nafterwards could be nothing more or less than a forced\tloan
\nand  it is difficult to say that it comes under the head  of
\nacquisition  or requisitioning of property as  described  in
\nentry  36  of List II and is embraced  within  its  ordinary
\nconnotation.\n<\/p>\n
    It\tis  said by the learned\t Attorney-General  that\t the
\nsubject\t matter of acquisition in the present case  is.\t not
\nmoney but choses in action. It seems to me that there is  no
\ndifference  in\tprinciple between them because\ta  chose  in
\naction can be available to the acquiring authority only when
\nit  is made to produce money; Otherwise it is useless  alto-
\ngether (3).\n<\/p>\n
    Assuming however that entry 36 of List II is wide enough
\nto include acquisition of money or a right of action, I have
\nno hesitation in holding that in providing for\tcompensation
\nin  respect of such acquisition the legislature has  made  a
\ncolourable  use\t of  entry 42 of List III  and\thas  thereby
\ndefeated the purpose of that entry altogether.\tEntry 42  of
\nList  III  speaks of “principles on which  compensation\t for
\nproperty  acquired or requisitioned for the purposes of\t the
\nUnion or of a State or any other public purpose is to be
\n   (1) See Cooley on Constitutional Limitations. Vol. II, p.
\n1113.\n<\/p>\n
(2) Cooley, Vol. 11, p. 1118; Willis on Constitutional\tlaw,
\np  816.\n<\/p>\n
(3)  Vide Cooley on Constitutional Limitations, Vol. 11,  p.
\n1118, F.N.\n<\/p>\n
124<\/span>
\n962<\/span><\/p>\n
determined,  and the form and the manner in which such\tcom-
\npensation is to be given”.  This is a description of  legis-
\nlative\thead and I agree with the  learned  Attorney-General
\nthat  in  deciding the competency of the  legislation  under
\nthis entry, we are not concerned with the justice or propri-
\nety of the principles upon which the assessment of compensa-
\ntion is to be made under a particular legislation nor are we
\nconcerned  with\t the  justice or otherwise of  the  form  or
\nmanner in which such compensation is to be given.  I do not,
\nhowever, agree\twith  the  learned Attorney-General for\t the
\nreasons already given by my learned brother in his  judgment
\nthat  legislation under this head need not provide  for\t any
\ncompensation  at all and that a legislative provision  which
\ndeclares  that no compensation is to be given  comes  within
\nthe  ambit  of this legislative head. Such  construction  is
\nrepelled  by the very language of the entry which speaks  of
\ngiving\tcompensation  and not of denying or  witholding\t it.
\nStripped  of  all disguise, the net result of  the  impugned
\nprovision  is that it would be open to the State  Government
\nto appropriate to itself half of the arrears of rent due  to
\nthe  landlord prior to the date of the\tacquisition  without
\ngiving him any compensation whatsoever.\t Taking of the whole
\nand returning a half means nothing more or less than  taking
\nhalf  without any return and this is naked confiscation,  no
\nmatter\tin whatever specious form it may be clothed or\tdis-
\nguised.\t The impugned provision, therefore, in reality\tdoes
\nnot lay down any principle for determining the\tcompensation
\nto  be paid \/or acquiring the arrears of rent, nor  does  it
\nsay anything relating to the form of payment, though  appar-
\nently  it purports to determine both.  This, in my  opinion,
\nis  a fraud on the Constitution and makes  the\tlegislation,
\nwhich  is  a  colourable one,  void  and  inoperative.\t The
\nlearned Attorney-General has contended that it is beyond the
\ncompetency  of\tthe Court to enter into a question  of\tbona
\nfides  or mala fides of the legislature. In a sense this  is
\ntrue.  If the legislature is omnipotent, the motives,  which
\nimpel  it to enact a particular law, are absolutely  irrele-
\nvant; and
\n963<\/span>
\non  the other hand, if it tacks competence the\tquestion  of
\nmotives does not at all arise.\tBut when a legislature has a
\nlimited\t or  qualified\tpower and has got to  act  within  a
\nsphere\tcircumscribed  by legislative entries. the question,
\nwhether in purporting to act under these entries, it has, in
\nsubstance,  gone  beyond them and has  done  certain  things
\nwhich  cannot  be  accomplished within the  scope  of  these
\nentries,  is really a  question affecting the competency  of
\nthe  legislature.  In such cases, although  the\t legislation
\npurports  to have been enacted under a particular entry,  if
\nit  is really outside it, it would be void (1). It has\tbeen
\nsuggested  in course of the argument on behalf of the  State
\nthat  in the present case the Government in the exercise  of
\nits powers of acquisition could acquire the arrears of\trent
\nand  as\t the  arrears were still unrealised,  it  was  quite
\nlegitimate  and proper for the Government to deduct half  of
\nthe  gross amount as consideration for the trouble  and\t ex-
\npense that it would have to undergo in the matter of realis-
\ning  these arrears.  This would mean that what the  legisla-
\nture intended is simply to enable the Government to help the
\nzamindars  in realising the arrears of rent and as a  return
\nfor the help which it is to render, the Government is  given
\nthe  right to retain half of the arrears that were  actually
\ndue.   This could not possibly have been the real  intention
\nof the legislature and I do not think that there is any item
\nin  the\t long legislative lists framed by  the\tConstitution
\nwhich  empowers the legislature to interfere with the  legal
\nrights\tof  the landlord in this manner apart  from  special
\ncircumstances like indebtedness or otherwise and impose upon
\nhim  an onerous obligation to which he is not  a  consenting
\nparty. A legislation of this character is a complete  novel-
\nty, the like of which has seldom been witnessed before.\t The
\nresult is that I concur in the order which has been made  by
\nmy  learned brother Mahajan J. in this case and I allow\t the
\nappeals\t subject to the two modifications  indicated  above.
\nThere would be no order as to costs.\n<\/p>\n
(1) See Lefroy on Canadian Constitution. pp. 79-80.\n<\/p>\n
964<\/span><\/p>\n
    DAS J.–The proceedings out of which these appeals\thave
\narisen were initiated by different proprietors of estates in
\nBihar  challenging the constitutional validity of the  Bihar
\nLand  Reforms Act, 1950 (Bihar Act XXX of 1950) which\twill
\nhereafter in this judgment be referred to as “The Act”.
\n    On\tJanuary\t 26, 1950, when our Constitution  came\tinto
\nforce, the Bill which eventually became the Act was  pending
\nbefore the Legislature of the State of Bihar. After the Bill
\nhad  been passed by the State Legislature, it  was  reserved
\nfor  the  consideration of the President. On  September\t 11,
\n1950,  that  Bill received the assent of the  President\t and
\nbecame the Act. The provisions of the Act have been analysed
\nand summarised in the judgment just delivered by Mahajan  J.
\nand  it is not necessary for me to burden this\tjudgment  by
\nrecapitulating the same.  On September 25, 1950, the text of
\nthe Act was published in the Official Gazette with a notifi-
\ncation under section 1 (3) dated September 24, 1951), bring-
\ning the Act into operation. A notification under section  :3
\nof  the Act dated September 25, 1950 vesting the estates  of
\ncertain\t named proprietors was published in   the   Official
\nGazette\t on  the next day.  This  notification\thaving\tbeen
\npublished  in the Official Gazette, some of the\t proprietors
\naffected thereby instituted suits in the Subordinate  Courts
\nin Bihar after giving the requisite notice under section  80
\nof the Code of Civil Procedure and prayed for a\t declaration
\nthat  the Act was unconstitutional and void and\t that  their
\ntitle to the properties\t remained  unaffected.\tSome of\t the
\nother  proprietors filed applications in the High  Court  at
\nPatna under article 226 of the Constitution praying for\t the
\nissue of appropriate writs, directions or orders. The  State
\nof  Bihar  filed its written statements in the\tsuits  which
\nwere transferred to the High Court for disposal in  exercise
\nof its extraordinary Original Civil Jurisdiction,  The suits
\nand  the  applications were heard together.  As\t the  issues
\ninvolved grave questions of interpretation of the  Constitu-
\ntion,  the suits and applications were placed before a\tSpe-
\ncial Bench
\n 965<\/span>
\nof  the Patna High Court and were disposed of on  March\t 12,
\n1951.\tAll the learned Judges, for one reason\tor  another,
\nrepelled  all  the main contentions of the  proprietors\t but
\nheld that the Act was unconstitutional in that it denied  to
\nthe  proprietors equal protection of the laws guaranteed  by
\narticle 14 of the Constitution.\t The High Court rejected the
\nplea of the State that article 31 (4) of the Constitution by
\nreason\tof the words “notwithstanding anything in this\tCon-
\nstitution”  excluded article 14 at least in its\t application
\nto the alleged inequality of compensation. Article 31 (4) is
\nin these terms :-\n<\/p>\n
    “If any Bill pending at the commencement of this Consti-
\ntution in the Legislature of a State has, after it has\tbeen
\npassed by such Legislature, been reserved for the considera-
\ntion  of  the President and has received his  assent,  then,
\nnotwithstanding\t anything in this Constitution,\t the law  so
\nassented  to  shall  not be called  in\t question   in\t any
\ncourt  on the ground that it contravenes the  provisions  of
\nclause (2).”\n<\/p>\n
    The\t State\tof Bihar obtained leave of  the\t Patna\tHigh
\nCourt under article 132 (1) of the Constitution to appeal to
\nthis Court and preferred these appeals before us.
\n    It\tmay be mentioned here that the States of Uttar\tPra-
\ndesh  and  Madhya Pradesh also passed  legislation  for\t the
\nabolition of zamindaries in their respective States and\t the
\nvalidity  of  those legislations was also contested  by\t the
\nproprietors affected thereby.  The respective High Courts of
\nthose States, however, upheld the validity of the respective
\nState legislations and the aggrieved proprietors came up  to
\nthis  Court either on appeal or on  substantive\t application
\nunder article 32.  It was at that stage that the Constituent
\nAssembly  passed  the Constitution  (First  Amendment)\tAct,
\n1951.  Sections4 and 5 of the Act which are material for our
\npurpose are as follows :-\n<\/p>\n
Insertion of new  4. After article 31 of the Constitution
\narticle 3I-A.\t    the following article shall be inserted,
\nand shall be deemed always to have been inserted, namely :–\n<\/p>\n
966<\/span><\/p>\n
31-A. (1)Notwithstanding anything in the fore-
\nsaving of laws\t       going provisions of this Part, no law
\nproviding for ac-      providlng for the acquisition by the
\nquisition of estates,  State of any estate or of any rights
\netc.\t\t       therein or for the extinguishment or
\nmodification  of any such rights shall be deemed to be\tvoid
\non the ground that it is inconsistent with, or takes away or
\nabridges  any of the rights conferred by any  provisions  of
\nthis Part:\n<\/p>\n
    Provided that where such law is a law made by the Legis-
\nlature of a State, the provisions of this article shall\t not
\napply thereto unless such law, having been reserved for\t the
\nconsideration of the President, has received his assent.
\n(2) In this article,–\n<\/p>\n
    (a)\t the expression “estate” shall, in relation  to\t any
\nlocal area, have the same meaning as that expression or\t its
\nlocal  equivalent has in the existing law relating  to\tland
\ntenures\t in force in that area, and shall also\tinclude\t any
\njagir, inam or muafi or other similar grant;\n<\/p>\n
    (b)\t the expression “rights”, in relation to an  estate,
\nshall  include any rights vesting in a proprietor,  sub-pro-
\nprietor, under-proprietor,  tenure-holder  or other interme-
\ndiary and any rights or privileges in respect of land  reve-
\nnue.\n<\/p>\n
\t\t\t\t5. After article 31-A of the
\n\t\t\t\t constitution as inserted by
\n\t\t\t      section 4, the following\tarti
\ncle   shall be inserted namely :-\n<\/p>\n
Insertion of new article 3I-B,
\n\t\t    31-B.  Without prejudice to the
\nValidation of\t    generality\tof the provisions  con-
\ncertain Acts and    tained in article 31-A, none of the
\nRegulations
\n\t\t      Acts and Regulations specified in the
\nNinth  Schedule\t or any of the provisions thereof  shall  be
\ndeemed\tto  be\tvoid, or ever to have become  void,  on\t the
\nground that such Act, Regulation or provision is  inconsist-
\nent  with, or takes away or abridges any of the rights\tcon-
\nferred by, any provisions of this Part,
\n967<\/span>
\nand  notwithstanding  any judgment, decree or order  of\t any
\ncourt or tribunal to the contrary each of the said Acts\t and
\nRegulations  shall,  subject to the power of  any  competent
\nlegislature to repeal or amend it, continue in force.”\n<\/p>\n
    A  new  Schedule called the\t Ninth\tSchedule  specifying
\nthirteen  several  Acts and Regulations of which  the  Bihar
\nLand  Reforms  Act,  1950. was the first was  added  to\t the
\nConstitution.  The legal validity of the Constitution (First
\nAmendment) Act, 1951, has been recently upheld by this Court
\nand  all  Courts must give effect to the  two  new  articles
\nwhich are now substantive parts of our Constitution.   Arti-
\ncle  31-A relates back to the date of the  Constitution\t and
\narticle 31-B to the respective dates of the Acts and Regula-
\ntions  specified  in the Ninth Schedule.  It  has  not\tbeen
\ndisputed  that the provisions of the above two\tnewly  added
\narticles_  have to be taken into consideration in  disposing
\nof these appeals.\n<\/p>\n
    Learned  counsel appearing for the\t respondents  accept
\nthe  position that as a result of the constitutional  amend-
\nments\tthe  impugned Act  has been removed from the  opera-
\ntion  of  the  provisions of Part III  of  the\tConstitution
\nincluding article 14 and that the respondents cannot, there-
\nfore, complain of the breach of the equal protection of\t the
\nlaws under article 14 which was the only ground on which the
\nrespondents  succeeded in the High Court.  Learned  counsel,
\nhowever,  maintain that although they cannot  now  challenge
\nthe  constitutionality\tof  the Act on the  ground  that  it
\ncontravenes  or\t is  inconsistent  with\t or  takes  away  or
\nabridges  any of the rights conferred by any of\t the  provi-
\nsions of Part III of the Constitution; it is,  nevertheless,
\nopen to them to call the Act into question on other  grounds
\nfounded\t on  other parts of the Constitution or\t on  general
\nprinciples of law. Accordingly Mr. P. R. Das formulates\t the
\nfollowing five principal grounds of attack against the\tAct,
\nnamely:\n<\/p>\n
    A,\t On a proper interpretation of articles 245 and\t 246
\nread with entry 36 in List II and entry 42 in
\n968<\/span>
\nList  III  the Bihar Legislature had no power to  enact\t the
\nsaid  Act inasmuch as it makes no provision for the  payment
\nof  just  compensation for the proposed acquisition  of\t the
\nzamindaries and tenures.\n<\/p>\n
    B.\tEven if the Court does not accept the correctness of
\nthe  arguments based on entry 36 in List II and entry 42  in
\nList  III and holds the respondents barred from\t going\tinto
\nthe  question of compensation by reason of  articles  31(4),
\n31-A  and 31-B the respondents are still entitled  to  chal-
\nlenge the Act on the ground that the proposed acquisition is
\nnot for a public purpose.\n<\/p>\n
    C.\t The  Act constitutes a fraud on  the  Constitution.
\nthat  is to say, while it purports to be in conformity\twith
\nthe Constitution it in fact, constitutes a defiance of it.
\n    D.\t The  Act  is unenforceable in\tthat  section  32(2)
\nprovides for payment of compensation in 40 equal instalments
\nwithout\t specifying the period of interval between  the\t in-
\nstalments.\n<\/p>\n
    E.\tThe Act delegated essential legislative functions to
\nthe executive Government.\n<\/p>\n
    The\t heads of  objections  thus  formulated\t by Mr. P.R.
\nDas  apparently look formidable and it is necessary,  there-
\nfore,  to  consider with close attention the  arguments\t ad-
\nvanced by him in support of each of them.\n<\/p>\n
    Re Ground A: That article 31 (‘2) imposes upon a law for
\nthe  compulsory acquisition of private property the  obliga-
\ntion  to provide for compensation and that  such  obligation
\nis,   therefore, a provision of article 31 (2) is not  chal-
\nlenged.\t Nor is it claimed, in view of articles 31 (4), 31-A
\nand  31-B, that it is still open to the respondents to\tcall
\nin question the validity of the impugned Act  on the  ground
\nthat it contravenes or is inconsistent with or takes away or
\nabridges the provision\tfor compensation made in article  31
\n(2).   What is urged is that the obligation to\tprovide\t for
\ncompensation  is not a provision to be found exclusively  in
\narticle\t a 1 (2) but that it is also provided for  in  other
\nparts of the Constitution and
\n  969<\/span>
\nthat,  in so far as such obligation is found provided  else-
\nwhere, the impugned Act can well be challenged on the ground
\nthat it contravenes or is inconsistent with or takes away or
\nabridges the provisions of those other parts of the  Consti-
\ntution, for that ground of challenge has not been taken away
\nby articles 31 (4), 31-A and 31-B, by reason of the delimit-
\ning  words  used therein. The argument is developed  in\t the
\nfollowing way. The State’s power to acquire private property
\nis,  in\t essence, a power to compel the owner  to  sell\t his
\nproperty  when the public interest requires  it.   Authority
\nfor this proposition is to be found in Blackstone’s  Commen-
\ntary  (Broom’s Edn.) p. 165 and in  Cooley’s  Constitutional
\nLimitations,  8th  Edn.,  Vol. II, p.  1201,  Footnote\t(8).
\nIndeed,\t in  some  of the English  statutes  for  compulsory
\nacquisition of lands and hereditaments (e.g., 5 & 6 Vic.  C.
\n94  and\t 8 & 9 Vic. C. 18) the word “purchase” was  used  to
\ndenote\tacquisition.   As  there can be no  sale  without  a
\nprice,\tthere  can be no compulsory acquisition\t of  private
\nproperty  without a provision for payment of just  compensa-
\ntion, i.e., its equivalent value in money.  That the obliga-
\ntion to pay just compensation for compulsory acquisition  of
\nprivate property is a principle of natural equity recognised
\nby  all temperate and civilized governments, that the  right
\nto compensation is an incident to the exercise of the  power
\nof  eminent domain and that the one is so  inseparably\tcon-
\nnected with the other that they may be said to exist, not as
\nseparate  and distinct principles but, as parts of  one\t and
\nthe  same  principle  are well-established by  a  series  of
\ndecisions  of  the American courts quoted by  Harlan  J.  in
\nChicago,   Burlington\tand  Quincy  Railroad\tCompany\t  v.
\nChicago(1). In England Lord Dunedin in\tAttorney-General  v.
\nDe Keyser’s Royal Hotel Ltd.(2), described the obligation to
\npay compensation as “a necessary concomitant to taking”.  It
\nfollows, therefore, that the obligation to pay\tcompensation
\nis inseparable from and is implicit in the power of acquisi-
\ntion.  This obli-\n<\/p>\n
(1)  166 U.S. 216; 4r L. Ed. 979,\t\t (2)  [1920]
\nA.C. 508.\n<\/p>\n
970<\/span><\/p>\n
gation flows from the mere use of the word ,’acquisition” in
\nentry 36 in List II, as in entry 33 in List I. That word, by
\nitself,\t according  to\tMr. P.R. Das,  connotes\t a  compound
\nconcept,  namely, the concept of a power of taking  on\tjust
\nterms  and  confines the very legislative  competency  under
\nthose  entries within the limits of that  compound  concept.
\nIf,  however, the word “acquisition” in entry 36 in List  II
\nand entry 33 in List I does not by itself imply the  obliga-
\ntion  to pay just compensation, then, urges Mr. P.R. Das  in
\nthe  alternative,  the words “subject to the  provisions  of
\nentry  42 of List III” occurring at the end of entry  36  in
\nList  II  certainly brings in that obligation.\tOn  a  plain
\nreading\t of entry 36 in List II the power to make  law\twith
\nrespect\t to matters specified therein is “subject to”,\tthat
\nis  to say, “conditional upon” the exercise  of\t legislative
\npower under entry 42 in List III.Those concluding words, Mr.
\nP.R. Das says, import the obligation to provide for  compen-
\nsation as provided in entry 42 in List Iii into entry 36  in
\nList  II  and thereby enlarge the content of the  last\tmen-
\ntioned\tentry so as to make it a legislative head comprising
\nthe compound concept referred to above.\t The third  alterna-
\ntive position is that if the word “acquisition” in entry  36
\nin  List  II does not, by itself, imply\t the  obligation  to
\nprovide\t for. compensation and if the words “subject to\t the
\nprovisions  of\tentry  42 of List III” do  not\timport\tthat
\nobligation  as\tstated above, entry 42 in List\tIii  should,
\nnevertheless,  be  construed as conferring a  power  coupled
\nwith a duty, so that if the law-making power under entry  33
\nin  List I or entry 36 in List II is at all  exercised,\t the
\nlawmaking  power  under entry 42 in List III  must,  on\t the
\nprinciple  laid down by the  House  of\tLords  in Julius  v.
\nLord  Bishop  of Oxford(1)  and\t adopted by  this  Court  in
\nChief  Controlling  Revenue Authority v.  Maharashtra  Sugar
\nMills  Ltd.<\/a>(2),\t also be exercised.  It is  urged  that\t the
\nBihar Legislature having purported to exercise its power  to
\nmake  a\t law for compulsory acquisition\t of  property  under
\nentry-36 in
\n(1) L.R. 5 App. Cas. 214.\t\t   (2) [1950] S.C.R.\n<\/p>\n
971<\/span><\/p>\n
List II but not having made any law laying down any  princi-
\nple  for  determining what may, in the eye of  the  law,  be
\nregarded as just compensation at all, the Act is ultra vires
\nand  void.   The arguments thus developed by  Mr.  P.R.\t Das
\nundoubtedly  have  the\tmerit of  attractive  ingenuity\t and
\napparent cogency and certainly call for very careful consid-
\neration,
\n    To\tcut  at the root of the above argument\tthe  learned
\nAttorney-General appearing for the appellant State  contends
\nthat the impugned Act is a law made with respect to  matters
\nmentioned  in entry 18 in List II and not under entry 36  in
\nList II. The contention is that it is essentially a legisla-
\ntion for land reforms and alteration of land tenures.  It is
\npointed\t out  that the Act eliminates the interests  of\t all
\nzemindars and intermediate tenure-holders so that the  State
\nand the actual tiller of the soil may be brought into direct
\nrelationship.\tIncidental  to this primary  object  is\t the
\nacquisition of the various interests in the land.  Reference
\nis  made to the cases of The United Provinces v. Mst.  Atiqa
\nBegum  and  Others(1), Thakur Jagannath Baksh Singh  v.\t The
\nUnited Provinces(2) and Megh Raj and Another v. Allah Rakhia
\nand Others(s) in support of the proposition that each  entry
\nin  the\t list, which is a category or head of  the  subject-
\nmatter of legislation, must be construed as widely as possi-
\nble  so as to inelude all ancillary matters.  This  line  of
\nreasoning  found favour with Shearer J. but was rejected  by
\nReuben J. and S.K. Das J.  There is no doubt that “land”  in
\nentry  18 in List II has been construed in a very  wide\t way
\nbut  if\t “land” or “land tenures” in that entry is  held  to
\ncover  acquisition  of land also, then entry 36 in  List  II
\nwill have to be held as wholly redundant, so far as  acquis-
\ntion  of land is concerned, a conclusion to which I  am\t not
\nprepared  tO assent.  In my opinion, to give a\tmeaning\t and
\ncontent to each of the two legislative heads under entry  18
\nand  entry  36\tin List II the former should be\t read  as  a
\nlegislative
\n  (1)  [1940]  F.C.R. IIO at p. 134-\t\t (3)  [1947]
\nF.C.R. 77.\n<\/p>\n
  (2) [1946] F.C.R. III at p. 119.\n<\/p>\n
972<\/span><\/p>\n
category  or head comprising land and land tenures  and\t all
\nmatters\t connected  therewith other than  acquisition\t  of
\nland which should be read as covered by entry 36 in List II.
\nFurther, the impugned Act purports to acquire all arrears of
\nrent and a law for acquisition of the arrears of rent cannot
\npossibly be said to be a law with respect to matters  speci-
\nfied in entry 18 in List II for it cannot be supposed to  be
\na law relating to the collection of rent within the  meaning
\nof  that  entry.  On this point I find myself  in  agreement
\nwith  Reuben  J.  and S.K. Das J. and I\t cannot\t accept\t the
\narguments  of the learned Attorney-General to the  contrary.
\nTherefore, the arguments of Mr. P.R. Das founded on entry 36
\nin  List II and entry 42 in List III cannot be\trejected  in
\nlimine\tbut  have to be considered and I proceed  to  do  so
\nimmediately.\n<\/p>\n
    That  the obligation to pay compensation is\t concomitant
\nto,  that  is to say, accompanies, the power  of  compulsory
\ntaking of private property by the State cannot be  disputed.
\nThe  first important question is whether this obligation  is
\nimplicit  in the term “acquisition” as used in entry  36  in
\nList II, or in other words whether this obligation is to  be
\ninferred  simply from the use of that term as a part of\t the
\ncontent\t or meaning thereof. In Attorney-General v. De\tKey-
\nser’s  Royal Hotel Limited (supra) Lord Dunedin pointed\t out
\nthat  the power of acquisition was. in its  origin,  derived
\nfrom  the prerogative of the Crown and that the\t payment  of
\ncompensation  was  originally a matter\tof  negotiation\t and
\nbargain\t between the Crown and the subject, but came  to  be
\ndetermined  later  on by statutes of local  application\t and
\nfinally by statutes of general application and that,  there-
\nfore, the Crown, which is an assenting party to every  stat-
\nute, must, in effect, be regarded as having consented to the
\nexercise of its prerogative being made subject to payment of
\ncompensation regulated by statutes.  In that case,  however,
\nit was not disputed in arguments that the taking itself\t was
\na  matter  of prerogative right.  In the  United  States  of
\nAmerica\t the power of eminent domain was not originally,  in
\nterms, conferred on
\n973<\/span>
\nthe United States by any provision of the Federal  Constitu-
\ntion,  but this power has always been recognised  to   exist
\nas  an inherent attribute of the sovereignty of\t the  State.
\nSo far as the United States are concerned, the Fifth  Amend-
\nment  by providing that private property shall not be  taken
\nfor  public use without just compensation gave\ta  constitu-
\ntional\trecognition to the right of eminent domain  and,  to
\nprotect\t the subjects, imposed a limitation on the  exercise
\nof  that right by the State.  This indicates that the  power
\nof  acquisition and the obligation to pay  compensation\t are
\ntwo  separate  and  distinct concepts  although\t the  second
\nfollows\t the  first. If the obligation to  pay\tcompensation
\nwere  an  integral  part of the concept or  the\t meaning  of
\n“taking”  itself, then this part of the Fifth Amendment\t was
\nwholly unnecessary.  It follows, therefore, that the expres-
\nsion  “acquisition”  does not, by itself and  without  more,
\nimport\tany obligation to pay compensation. It is  urged  by
\nMr. P.R. Das that entry 42 in List III really implements the
\nobligation  implicit  in  entry 36 in List II  and  the\t two
\nentries are complementary to each other. If this  obligation
\nwere not implicit in entry 33 in List II then where else, it
\nis  asked, is the obligation to pay compensation to be found
\n?  The obvious answer is that obligation is to be  found  in
\narticle\t 31  (2)  in  Part III\tof  our\t Constitution.\t The
\nobligation  to pay compensation may be introduced as a\tpart
\nof the legislative power itself, in which case it becomes  a
\ncomposite power, namely, a power to make law with respect to
\nacquisition  circumscribed by the obligation to provide\t for
\ncompensation.  Thus in section 31 (XXXI) of the Commonwealth
\nof Australia Constitution Act the acquisition of property on
\njust  terms has been made a head or category of\t legislative
\npower  of the Commonwealth Parliament.\tThere the  power  is
\nnot to make a law for the acquisition of property simplicit-
\ner  but is to make a law for the acquisition of property  on
\njust terms which connotes that the legislative power  itself
\nis circumscribed by the necessity for providing just  terms.
\nBut there is no overriding
\n974<\/span>
\nnecessity of constitutional law that I know of, or that\t has
\nbeen brought to our notice, which requires that the  obliga-
\ntion  to  pay compensation for the acquisition\tof  property
\nmust  be made part and parcel of the very legislative  power
\nto make a law with respect to the compulsory acquisition  of
\nprivate\t property.  It must depend on the provisions of\t the
\nparticular  constitution  under consideration.\tWhat  do  we
\nfind  in our Constitution ? We find that under\tarticle\t 246
\nParliament    has exclusive power to make laws with respect,
\ninter  alia,  to matters specified in entry 33\tin  List  I,
\nnamely,\t “acquisition or requisitioning of property lot\t the
\npurposes  of  the Union, that the  State  Legislatures\thave
\nexclusive  power to make laws with respect, inter  alia,  to
\nmatters\t specified  in\tentry a6 in  List  II,\tnamely,\t the
\n,acquisition  or requisitioning of property except  lot\t the
\npurposes  of the Union subject to the provision of entry  42
\nof List III” and that both Parliament and the State Legisla-
\ntures  may  make laws with respect to matters set  forth  in
\nentry 42 in List III, namely, the principles for determining
\nthe  compensation  and the form and manner  of\tgiving\tsuch
\ncompensation.\tThis legislative power of Parliament  or  of
\nthe State Legislatures is, by article 245, made “subject  to
\nthe provisions of this Constitution.”  One of the provisions
\nof the Constitution is article 31 (2) under which no proper-
\nty  can be “taken possession of or acquired for public\tpur-
\nposes  under any law authorising the taking of such  posses-
\nsion or such acquisition unless the law provides for compen-
\nsation\tfor  the  property and either fixes  the  amount  of
\ncompensation  or specifies the principles on which, and\t the
\nmanner\tin which, the compensation is to. be determined\t and
\ngiven.”\t The  scheme  of our Constitution  obviously  is  to
\nprovide\t the three things separately, namely, the  power  of
\nmaking a law for acquisition of property in article 246 read
\nwith entry 33 in List I and entry 36 in List II, the obliga-
\ntion  of  such law to provide for  compensation\t in  article
\n31(2) and the power of making a law laying down the  princi-
\nples  for determining such compensation in article 246\tread
\nwith entry 42 in List III.\n<\/p>\n
975<\/span><\/p>\n
According  to  this  scheme it is not necessary\t at  all  to
\nregard\tentry a3 in List I and entry 36 in List,  II,  which
\nare  mere heads of legislative power, as  containing  within
\nthemselves  any\t obligation to provide for  the\t payment  of
\ncompensation.  In other words, it is not necessary to  treat
\nthe  obligation to pay compensation as implicit in or  as  a
\npart or parcel of these legislative heads themselves, for it
\nis  separately\tand expressly provided\tfor  in\t article  31
\n(2).   The well-known maxim expressum facit cessare  tacitum
\nis,  indeed, a\tprinciple of logic and common sense and\t not
\nmerely\ta technical rule of construction (See Broom’s  Legal
\nMaxims,\t 10th Edn, p. 443 at p. 452).  The express provision
\nin article 31 (2) that a law of acquisition, in order to  be
\nvalid,\tmust  provide  for  compensation,  will,  therefore,
\nnecessarily exclude all suggestion of an implied  obligation
\nto  provide for compensation sought to be imported into\t the
\nmeaning of the word “acquisition” in entry 36 in List II. In
\nthe  face of the express provision of article 31  (2)  there
\nremains\t no  room for reading any such\timplication  in\t the
\nlegislative heads.\n<\/p>\n
    Mr.\t P.R. Das suggests, in the alternative, that if\t the
\nobligation  to provide for compensation is not\timplicit  in
\nthe word “acquisition” itself as used in entry 36 in List II
\nthat  obligation is attracted and made a part and parcel  of
\nthat entry by reason of the words “subject to the provisions
\nof  entry  42 of List III”.  The last mentioned\t words\tare,
\nhowever. not to be found in entry 33 in List I and this part
\nof  Mr.\t P.R. Das’s argument would lead\t to  this  anomalous
\nresult that while the obligation to provide for compensation
\nis  made a part of the legislative power under entry  36  in
\nList  II  by virtue of its last few words quoted  above,  no
\nsuch  obligation is attracted and made part of the  legisla-
\ntive power under entry33 in List I, and that, therefore,  in
\nmaking\ta law with respect to acquisition of property  under
\nentry  33  in List I Parliament, unlike the  State  Legisla-
\ntures, will not be bound to provide for any compensation  at
\nall. This cannot possibly be the intention of the framers
\n976<\/span>
\nof our Constitution.  Further, Mr. P.R. Das reads the  words
\n“subject  to” as meaning “conditional upon” the exercise  of
\nthe legislative power under entry 42 in List III, that is to
\nsay,  conditional upon fulfilling the obligation to  provide
\nfor  compensation and the form and the manner in which\tsuch
\ncompensation is to be given.  I agree with S.K. Das J.\tthat
\nthe   words “subject to” have not the meaning sought  to  be
\ngiven  to them by Mr. P.R. Das but that they mean “but\tnot”
\nso  as to indicate that the scope of entry 36 in List II  is
\nrestricted, that is to\tsay, that the subjectmatter of entry
\n42 in List III is not within the content of entry 36 in List
\nII.   If entry 42 in List III were, by reason of  the  words
\n“subject  to the provisions of entry 42 of List III”  occur-
\nring in entry 36 in List II, to be read as having been\tmade
\na  part\t of the content of entry 36 in List II then  it\t may
\nwell be argued that, in view of article 246, Parliament will
\nnot  be\t competent  to maintain law with respect to  princi-
\nples  on which compensation is to be determined.  It  is  in
\norder  to prevent this argument and out of abundant  caution
\nthat   the  subjectmatter of entry 42 in List III  has\tbeen
\nexcluded  from\tthe content of entry 36 in List\t II  by\t the
\nwords “subject to” et cetera and Parliament may,  therefore,
\nfreely make a law with respect to the matters thus  excluded
\nfrom  entry  36 in List II and set forth as a  separate\t and
\nindependent item in entry 42 in List III. This consideration
\nwas not material in connection with entry 33 in List I which
\nexplains  the omission of the words “subject to”  et  cetera
\nfrom that entry.\n<\/p>\n
Mr. P.R. Das finally urges that if the obligation to provide
\nfor  compensation is not implicit in the word  “acquisition”
\nin  entry 36 in List II and if that obligation is not to  be
\nread  into  that entry even in view of\tthe  words  “subject
\nto   …………….  “at the end of it, even then  if\t the
\nState  exercises  its power to make a law  with\t respect  to
\nacquisition of property under entry 36 in List II it is\t the
\nduty  of the State Legislature to make a law also  with\t re-
\nspect  to matters specified in entry 42 in List III  on\t the
\nprinciple that as
\n977<\/span>
\nentry 42 in List III confers a power on the Legislature\t for
\nthe protection of the interest of persons whose property  is
\ncompulsorily  acquired, such power must. therefore,  be\t re-
\ngarded as coupled with a duty to exercise it.  No  authority
\nhas been brought to our notice establishing or even suggest-
\ning  that the principle laid down by the House of  Lords  in
\nJulius v. Lord Bishop of Oxford (supra) has been extended to
\nthe  exercise of legislative power and I am not prepared  to
\nassent\tto  the proposition.  Article 246 does not  make  it
\nobligatory for Parliament or the State Legislatures to\tmake
\na  law under any of the entries in any of the Lists  in\t the
\nSeventh Schedule.  Entry 42 in List III does not, therefore,
\nimpose any duty upon Parliament or the State Legislatures to
\nmake  any  law for payment of compensation.   What  requires
\nParliament  or\tState Legislatures, when making\t a  law\t for
\ncompulsory  acquisition of private property, to provide\t for
\ncompensation and either to fix the amount thereof or specify
\nthe principles on which and the-manner in which the  compen-
\nsation\tis  to be determined and given is the  provision  of
\narticle\t 31  (2). Entry 42 in List 111\tonly  constitutes  a
\nlegislative head under which Parliament or the State  Legis-
\nlatures\t may make a law so as to give effect to the  obliga-
\ntion  expressly imposed on them by article 31 (2).  In\tview
\nof the clear provision of that article it is wholly unneces-
\nsary  to  read entry 42 in List III as imposing\t an  implied
\nduty on the Legislature on the principle referred to in\t the
\nHouse of Lords case.\n<\/p>\n
    That  the obligation to provide for compensation is\t not
\nincluded in the content of the legislative power under entry
\n36 in List II, by itself or read with entry 42 in List\tIII,
\nwill be made further clear when we come to consider  closely
\nclauses (4) and (5) of article 31 and article 31-A.  Article
\n31(4)  protects a law of the description  mentioned  therein
\nagainst the provisions of article 31(2). It follows,  there-
\nfore,  that what is sought to be protected by article  31(4)
\nis a law for the acquisition or taking possession of proper-
\nty which does not, amongst other things, provide for compen-
\nsation or
\n978<\/span>
\ndoes  not fix the amount or specify the principles on  which
\nand the manner in which the compensation is to be determined
\nand given, for otherwise there would be no necessity for any
\nprotection.  The question at once arises as to whether there
\nis  any legislative entry in List 11 under which a  law\t for
\nacquisition or taking possession of property without compen-
\nsation\tcan  be made by a State Legislature.   To  test\t the
\nvalidity of Mr. P.R. Das’s argument and to avoid the compli-
\ncation\tarising\t out of the residuary powers  of  Parliament
\nunder  article 248 and entry 97 of List II I have taken\t the
\ncase  of a law of acquisition made by the legislatures of  a
\nState  which  also come within article 31  (4).\t  Is  there,
\nthen,  any entry in List II under which a State\t Legislature
\ncan  make  a  law for acquisition  without  compensation  or
\npublic purpose ? Obviously there is none, except entry 36 in
\nList  II.  If that entry by itself or read with entry 42  in
\nList  III has any implication as suggested, namely,  that  a
\nlaw for acquisition of property-made under entry 36 in\tList
\nII  without a provision for compensation will be beyond\t the
\nlegislative   competency  of the  State\t Legislatures,\tthen
\nthere  is no other entry under which such a law can be\tmade
\nby a State Legislature and there can, therefore, be no point
\nin  making  a  provision in article  81(4)  for\t protecting,
\nagainst\t article  31(2), a law which,  on  this\t hypothesis.
\ncannot be made at all. Article 81(4) postulates a law  which
\noffends against 31 (2) and so far as the State\tLegislatures
\nare  concerned there is no entry in List II except entry  36
\nunder  which such an offending law may be made by the  State
\nLegislatures.  This  circumstance  unmistakably\t establishes
\nthat entry 36 in List II, by itself or read with-entry 42 in
\nList III, has not any such implication as is imputed to\t it.
\nLikewise  take\tarticle 81 (5) (b) (ii) which  protects\t the
\nprovisions of any law which the State may hereafter make for
\nthe  promotion of public health or the prevention of  danger
\nto  life  or property.\tThe law which is thus sought  to  be
\nprotected must also involve acquisition of property  without
\nany  provision for compensation, for otherwise there can  be
\nno occasion or necessity for
\n979<\/span>
\nany protection against article 31 (2).\tA law of this  kind,
\nin so far as such law provides for acquisition of  property,
\nmust necessarily be made by a State Legislature. if at\tall,
\nunder  entry 36 in List II.  If Mr. P.R.  Das’s\t contentions
\nwere  correct,\ta  law for the promotion of  health  or\t the
\nprevention  of\tdanger\tto life or  property  involving\t the
\nacquisition  of property without a provision  for  compensa-
\ntion,  which is what is sought to be protected from  article
\n31 (2), can never be made, for the obligation to provide for
\ncompensation  is, according to him, implicit in\t entry36  in
\nList  II, by itself or read with entry 42 in List  III,\t and
\nthere  is no other entry under which a law may be made by  a
\nState  Legislature with respect to acquisition of  property.
\nIt is futile to attempt to get over this anomaly by suggest-
\ning  that  clauses (4) and (5) (b) (ii) of article  31\thave
\nbeen inserted in the Constitution ex abundanti cautela, for,
\nif Mr. P.R. Das were correct in his submission, no amount of
\ncaution was necessary for protecting a law that, ex  hypoth-
\nesi, cannot be made at all. Similar arguments may as well be
\nfounded\t on article 31-A, for that article also\t protects  a
\nlaw from article 31 (2) which is in Part III of the  Consti-
\ntution. It is suggested that article 31-A postulates a valid
\nlaw made by a competent legislature within the ambit of\t its
\nlegislative  powers. If a State Legislature in making a\t law
\nfor  the acquisition of property for a public purpose  under
\nentry 36 in List II must provide for compensation then a law
\nmade  conformably  with this supposed  requirement  of\tthat
\nentry  by a State Legislature will require no protection  at
\nall against article 31 (2), and article 31-A must be regard-
\ned as meaningless and unnecessary.   Surely, that conclusion
\nis  manifestly\tuntenable.  In my opinion  clauses  (4)\t and
\n(5)(b) (ii) of article 31 and article 31-A clearly  negative
\nMr. P.R. Das’s proposition.  In my judgment, for the reasons
\nstated\tabove, the  major premise in the arguments  advanced
\nby  Mr.\t P.R. Das under ‘the first head,  namely,  that\t the
\nobligation  to pay compensation is implicit in entry  36  in
\nLis  II by itself or read with entry 42 in List III  is\t un-
\nsound.\n<\/p>\n
980<\/span><\/p>\n
The obligation to provide for compensation being, as I hold,
\na provision of article 31(2) and not being implicit in or  a
\npart and parcel of the legislative power itself under  entry
\n36 in List II read by itself or in conjunction with entry 42
\nin List III, the impugned Act cannot, by virtue of  articles
\n31(4),\t31-A and 31-B, be called in question on\t the  ground
\nthat it contravenes or is inconsistent with or takes away or
\nabridges  any of the rights conferred by the  provisions  of
\nclause\t(2) of article 31, that is to say, that it does\t not
\nprovide for compensation.\n<\/p>\n
    Assuming  that the obligation to pay compensation  which
\nis  expressly provided in article 31(2) is also implicit  in
\nentry 36 in List II by itself or read with entry 42 in\tList
\nIII, the respondents cannot. even then, be permitted to call
\nin  question the validity of the impugned Act on the  ground
\nthat  it  does not provide for compensation, for  then\tthey
\nwill  be  doing\t exactly what they are forbidden  to  do  by
\narticle\t 31 (4) and the newly added  articles.\tArticle31(4)
\nand the added articles debar the respondents from  question-
\ning the validity of the Act on the ground, inter alia,\tthat
\nit  contravenes\t or is inconsistent with or  takes  away  or
\nabridges  any of the rights conferred by the  provisions  of
\nclause (2) of article 31.  The emphasis in those articles is
\nrather on the “provisions” than on the number of the article
\nor the Part of the Constitution. It is obvious that the real
\nsubstance  of  the matter is that articles 31(4),  31-A\t and
\n31-B  expressly seek to prevent a challenge to the  validity
\nof the Act based on the ground, inter alia, that it does not
\nprovide\t for  compensation. This obligation to\tprovide\t for
\ncompensation is no doubt one of the provisions of article 31
\n(2)  but  if  as contended by Mr. P.R. Das,  the  self\tsame
\nprovision be found elsewhere in the same Constitution, e.g.,
\nentry  36  in  List II or entry 42 in List  III,  then\tthat
\n“provision” must also be regarded as having been covered  by
\narticle\t 31(4)\tand the two added  articles,  for  otherwise
\nthose articles will be rendered nugatory.  In my opinion, if
\ntwo constructions are possible, the Court should adopt\tthat
\nwhich
\n981<\/span>
\nwill  implement\t and discard that which\t will  stultify\t the
\napparent  intention  of\t the  makers  of  the  Constitution.
\nFurther, it must be borne in mind that article 31 (4)  which
\napplies\t “notwithstanding  anything in\tthis  Constitution”,
\nwill,  by force of the very words, protect the\tAct  against
\neven  legislative incompetency, if any, arising out  of\t the
\nalleged noncompliance with the suggested implied provisions,
\nif any, of entry 36 in List II and entry 42 in List III.  In
\nmy  judgment the respondents are not, by reason of  articles
\n31(4),\t31-A and 31-B, entitled to call the Act in  question
\non  the\t ground that it does not provide  for  compensation,
\nwhether\t the ground is formulated as a breach of article  31
\n(2) or of the implied provision, if any, of the\t legislative
\nheads mentioned above.\n<\/p>\n
    It\twill  be noticed that the argument that the  Act  is
\nunconstitutional  is founded on the assumption that  it\t has
\nnot laid down any principle for determining compensation  as
\nrequired by entry 42 in List III and that the provision\t for
\ncompensation is wholly illusory. Chapter V of the Act  deals
\nwith assessment of compensation.  Shortly put, the scheme is
\nto start with the gross assets which are taken to be synony-
\nmous  with the gross income and then to make certain  deduc-
\ntions  therefrom and to arrive at the net assets.  Then\t the
\ncompensation is to be calculated at a sliding scale of rates
\nvarying from 20 to 3 times of the net income. To the  amount
\nthus  determined is to be added a moiety of the\t accumulated
\narrrears of rent etc. and the compensation for the mines and
\nminerals as determined under section 25. Ex facie, it cannot
\nbe disputed that the Act does prescribe some principles\t for
\ndetermining  the compensation payable to the  proprietor  or
\ntenure-holder.\tIt is, however, pointed out that the  deduc-
\ntion of 5 to 20 per cent. of the gross assets as and by\t way
\nof  cost of management is quite arbitrary. It is  said\tthat
\nalthough  it  is well known that the percentage of  cost  of
\nmanagement  in relation to the income of a small  estate  is
\ngreater\t than that of a larger estate, yet the Act  provides
\nfor deducting 20 percent. of the gross assets in the case of
\nproprietors
\n982<\/span>
\nof  the larger estates but only 5 per cent. in\tthe case  of
\nthe smaller estates.  Objection is next taken to the  deduc-
\ntion  of  any amount under the head of works of\t benefit  to
\nraiyats the and also to the scale of such deduction.   These
\narguments,  to my mind, do not on close scrutiny, amount  to
\nsaying\tthat  the Act does not lay down\t any  principle\t for
\ndetermining the compensation.  The real underlying  implica-
\ntion  of these arguments, as I understand them, is that\t the
\nprinciples  are not good enough in that they do not  produce
\nfair compensation.  I do not think the Court can go into the
\npolicy of the legislation.  All that the Court is  concerned
\nwith  is to see whether any principle has been laid down  as
\nmentioned  in  entry  42 in List III. It is  true  that\t the
\npercentage of costs of management calculated on the basis of
\nthe  income of a big estate is less than that of  a  smaller
\nestate,\t but  it is quite clear that the Act has  fixed\t the
\nscale  of  deduction under this head and under the  head  of
\nworks of benefit according to the capacity of the proprietor
\nor  tenureholder to bear it.  It is impossible to  say\tthat
\nthe  provision\tfor deduction for works of  benefit  to\t the
\nraiyats\t is  not supported by any principle. A\tlandlord  is
\nexpected to spend money on works of benefit to his  raiyats,
\ne.g.,  providing  tanks and  wells,  irrigation,  charitable
\ndispensary,  schools  and  so forth and be it  said  to\t the
\ncredit\tof  some of the landlords that in practice  they  do
\nspend  money  on this account. Therefore, there\t is  nothing
\nwrong,\twhen  calculating the net income of a  landlord,  to
\ndeduct\tsomething  which the’ landlords should and  some  of
\nthem often do, in practice, spend under this head.  I see no
\nabsence of principle in this provision.\t The rate of  deduc-
\ntion, I have said, has been fixed according to the  capacity
\nof  the proprietors or tenure-holders.\tIt has\tbeen  shown.
\nand it is not denied that in many cases a calculation of the
\nnet  income on the basis of the principles laid down in\t the
\nAct operates to reduce the gross income to a very small\t net
\nincome.\t To take only one instance, the gross annual  income
\nof  the\t Darbhanga  estate  is\tabout  Rs.  47,85,069,\t the
\ndeduction
\n983<\/span>
\nallowed by the Act is about Rs. 44.88,585 and the net income
\ncomputed  according to the principles laid down in  the\t Act
\ncomes  to about Rs. 2,96,484 or say Rs. 3 lacs and the\tcom-
\npensation  payable to  the Maharajadhiraj of Darbhanga\twill
\nbe only rupees 9 lacs.\tIt has also been shown that at least
\nin  one\t case, e.g., in the case of the Raja of\t Purnea\t the
\ncompensation calculated according to the principle laid down
\nin  the Act works out at a deficit figure. The fact that  in
\none isolated case the calculation may work out in this\tway,
\ndoes  not,  however, prove that no principle has  been\tlaid
\ndown. Indeed, in all other cases the principle laid down  in
\nthe  Act actually produces compensation, however  inadequate
\nit may be said to be in some cases. If a principle has\tbeen
\nlaid  down, then the provisions of entry 42 in List III\t are
\namply satisfied and no question of legislative\tincompetency
\ncan arise. If a principle has been laid down in the Act\t but
\nthat principle does not in fact produce any compensation  in
\nany  rare case or adequate compensation in some\t cases\tthen
\nthe real complaint should be, not that no principle has been
\nlaid down but, that the principle laid down does not produce
\nwhat  may  be  called just compensation.   That\t result\t may
\noffend against the provisions of article 31 (2) but certain-
\nly not against entry 42 in List III and in view of  articles
\n31 (4), 31-A and 31-B the Act cannot be challenged for\tnon-
\ncompliance with article 31 (2).\t On the other hand, even  if
\nit is held that no principle has, in fact, been laid down by
\nthe Act, as contended, then that fact not only amounts to  a
\nbreach\tof the provisions of entry 42 in List III  but\talso
\nconstitues  a  breach of the provisions of  article  31\t (2)
\nwhich  clearly and emphatically requires the law  to  either
\nfix the compensation or lay down the principles on which and
\nthe  manner in which the compensation is to be given  and  a
\nbreach\tof this “provision”, call it a provision of  article
\n31(2)  or one of entry 42 in List III. cannot.\tfor  reasons
\nalready\t stated,  be questioned in view of  articles  31(4),\n<\/p>\n
31.A  and 31-B.\t It should also be remembered  that  article
\n31(4): by reason of the words “notwithstanding
\n984<\/span>
\nanything  in this Constitution” occurring therein will\talso
\nprotect the Act even against the alleged legislative  incom-
\npetency arising out of the noncompliance with all provisions
\nof the Constitution relating to the payment of\tcompensation
\nor the existence of a public purpose including the  supposed
\nrequirement  of\t producing actual compensation\tsaid  to  be
\nimplicit  in the provisions of entry 42 in List III.  In  my
\njudgment, the Act cannot be called in question on the ground
\nof  legislative\t incompetence of the  Bihar  Legislature  to
\nenact it under entry 36 in List II or entry 42 in List III.
\n    What  I  have stated above is sufficient  to  repel\t the
\nfirst ground of attack levelled against the Act by Mr.\tP.R.
\nDas.   But  before passing on to the second main  ground  of
\nattack I think it right to deal with a few subsidiary points
\ncanvassed before us.\n<\/p>\n
    It is said that section 3 of the Act, which is its\tmain
\noperative  section,  does not contemplate or  authorise\t the
\nacquisition of arrears of rent at all, for the\tnotification
\nunder that section only refers to the vesting of the estates
\nor tenures in the State.  It is, however, to be noticed that
\nthe  consequence  of issuing that notification is  that\t the
\narrears\t of rent including all that are mentioned in  clause\n<\/p>\n
(b) of section 4 are also to vest in, and be recoverable by,
\nthe State. This vesting of the arrears of rent in the  State
\nnecessarily  implies the transfer of the rights of the\tpro-
\nprietors  or  tenureholders to the State  and  this  process
\nmust, therefore, amount to the acquisition of that right  by
\nthe  State. Therefore, in effect, the Act  does\t contemplate
\nthe acquisition of the arrears of rent by the State.
\n    On the authority of a passage in Willis’  Constitutional
\nLaw,  p. 816, it is argued that the power of eminent  domain
\ncannot\tbe  exercised with respect to money  and  choses  in
\naction\tbesides\t certain other unusual\tforms  of  property.
\nThis passage is founded on certain earlier decisions of\t the
\nAmerican  Courts.   It is, however, clear  from\t Nichols  on
\nEminent Domain, Vol. I, p. 99, paragraph 2, and the case  of
\nCincinnati
\n    985<\/span>
\nv.  Louisville & N.R. Co.(1)  cited therein that the  modern
\nview is that the right of eminent domain can be exercised on
\nchoses\tin action.  In any case, we are t0 consider  whether
\narrears\t of rent are “property” in the sense in\t which\tthat
\nexpression is used in our Constitution and understood in our
\nlaw.   What  are  the arrears of rent but  rents  that\thave
\nfallen due but have not been paid ?  It is not at all  money
\nin  the\t till of the landlord but it is a debt\tdue  by\t the
\ntenants.  It is, therefore, nothing but an actionable  claim
\nagainst the tenants which is undoubtedly a species of  “pro.
\nperry”\twhich is assignable.  Therefore, it can\t equally  be
\nacquired  by the State as a species of “property. ”
\n    It is finally urged that the Act makes no provision\t for
\npayment\t of compensation for taking this item  of  property.
\nIt  is\ttrue  that  in section 24 the  word   “compensation”
\nis   used  in  connection with the taking of the estates  or
\ntenures and also the taking of mines and minerals but not in
\nconnection  with the fifty per cent. of the arrears of\trent
\nwhich  are  directed to be added to the\t compensation.\t But
\nthis provision for adding the fifty per cent. of the arrears
\nalso appears in the chapter headed “Assessment of  Compensa-
\ntion” and, therefore, the fifty per cent. of the arrears  is
\nadded in the process of the assessment of the  compensation.
\nFurther,  why is this fifty per cent. given to the  proprie-
\ntors  or tenure-holders at all unless it were for  compensa-
\ntion  ? It is pointed out that when the State takes  away  a
\nlac  of\t rupees and returns 50,000 rupees, it,\tin  reality,
\npays no compensation but by this shift and contrivance\tonly
\ntakes away the other 50,000 rupees for nothing.\t This  argu-
\nment  sounds  plausible at first but is not founded  on\t any
\ngood principle.\t This argument arises only because a  moiety
\nis paid back, as it were, in the same coin. If\tcompensation
\nfor  money were made, say, by giving some land of the  value
\nof a moiety of the money taken, the same argument would\t not
\nhave been available and all that could be said
\n(1) 223 U.S. 390, 50 L.Ed. 481. 127
\n986<\/span>
\nwould have been that the land so given, not being equivalent
\nin value to the money compulsorily taken away, could not  be
\nsaid  to be a just compensation. That argument, in  view  of
\narticles 31 (4), 31-A and 31-B, would, of course, have\tbeen
\nfutile.\t But  I see no difference in principle or  law\twhen
\ncompensation for acquisition of arrears is made in money. In
\nsuch  a\t case if only a moiety of the amount of\t arrears  is
\nreturned  the obvious complaint will be that the  return  of
\n50,000\trupees\tis  not fair or\t adequate  compensation\t for
\ntaking\taway Rs. 1,00,000 and that complaint may  have\tpre-
\nvailed\thad  there been no provision like those we  have  in
\narticles 31(4), 31-A and 31-B. Apart from this, the argument
\ncompletely  overlooks the fact that the arrears of rent\t are
\nnot  really  cash in the till of the proprietor\t or  tenure-
\nholder\tbut is only a debt due by the tenants.\tWhat is\t the
\nmarket\tvalue of this book debt ? This debt will have to  be
\nrealised, possibly by suit followed by execution proceedings
\ninvolving  time and money in costs.  Part of it, quite\tcon-
\nceivably,  may not be realised at all. Therefore, the  State
\ntakes the risk of realising or not realising the arrears  of
\nrent  but  irrespective of the results of  its\tefforts\t for
\ntheir realisation the fifty per cent. of the arrears is in a
\nlump added to the compensation. This, to my mind,  indicates
\nclearly that compensation is in fact paid for the arrears of
\nrent  and  I am not prepared to say that the  payment  of  a
\nmoiety\tof the book debts as compensation is so illusory  as
\nto amount to nothing, as contended by Mr. P.R. Das. Even  if
\nit be inadequate, the grievance will be, not that no princi-
\nple has been laid down in the Act as required by entry 42 in
\nList  III  but,\t that the principle so laid  down  does\t not
\nproduce\t adequate  compensation and there is,  therefore,  a
\ncontravention  of  the provisions of article  31  (2).\tThat
\ndefect\tcannot, however, be made a ground of attack in\tview
\nof  articles  31(4),  31-A and 31-B  for  reasons  explained
\nabove.\n<\/p>\n
    Re\tGround B: The second point urged by Mr. P.R. Das  is
\nthat  even if the Court does not accept the argument  as  to
\nthe necessity for providing for compensation
\n987<\/span>
\nbeing  implicit in entry 36 in List II and entry 42 in\tList
\nIII  and  holds that the respondents are, by reason  of\t the
\nprovisions of articles 31 (4), 31-A and 31-B, debarred\tfrom
\nquestioning  the validity of the Act on the ground  that  it
\ndoes  not  provide  for compensation  the  respondents\tare,
\nnevertheless, entitled to challenge the Act on the ground of
\nthe  absence of a public purpose.  That the existence  of  a
\npublic purpose is an essential prerequisite to the  exercise
\nof the power of compulsory acquisition has not been disputed
\nby the learned Attorney-General.  The contention put forward
\non  behalf of the respondents is that the necessity for\t the
\nexistence  of a public purpose as a condition  precedent  to
\ncompulsory acquisition of private property is not a  “provi-
\nsion” of article 31 (2) but is a requirement  of entry 36 in
\nList  II  or entry 42 in List III.  The\t words\t“for  public
\npurposes” do occur in article31(2) but it is said that there
\nis a distinction between a “provision” and an assumption. It
\nis  urged that article 31(2) assumes a law  authorising\t the
\ntaking\tof possession or the acquisition of property  for  a
\npublic\tpurpose and provides that the property shall not  be
\ntaken possession of or acquired even for that public purpose
\nunless\tthe  law  also provides for  compensation.   It\t is,
\ntherefore, concluded that the only “provision”\tof   article
\n31 (2) is that the law authorising the taking of  possession
\nor  the acquisition of property\t for a public purpose\tmust
\nprovide\t for  compensation and it is this  “provision”\tonly
\nthat cannot be made a ground of attack on  the Act by reason
\nof articles 31 (4), 31-A and 31-B of the Constitution.\tThis
\nargument  has  found favour with Reuben J. and S.K.  Das  J.
\nThe  latter learned judge, after referring to a\t passage  in
\nhis  own judgment in the earlier case of Sir Kameswar  Singh
\nv. The Province of Bihar (1) concludes as follows :–
\n   “Clause  (2),  strictly speaking, does not,\tin  express
\nwords,\tmake”  public  purposes” a  condition  precedent  to
\ncompulsory acquisition but rather assumes that such acquisi-
\ntion  can be for public purposes only; it does so by  neces-
\nsary implication.”\n<\/p>\n
(1) A.I.R. 1950 Pat. 392.\n<\/p>\n
988<\/span><\/p>\n
    The\t learned Judge then refers to the following  passage
\nin  the\t judgment  of my  learned   brotherMukherjea  J.  in
\nChiranjit  Lal\tChoudhury  v. The Union of  India  &  Others<\/a>
\n(1):__
\n    “Article 31(2) of the Constitution prescribes a  twofold
\nlimit  within which such superior right of the State  should
\nbe  exercised.\tOne limitation imposed upon the\t acquisition
\nor taking possession of private property which is implied in
\nthe  clause  is\t that such taking away must  be\t for  public
\npurpose.   ‘the other condition is that no property  can  be
\ntaken  unless  the law which authorises\t such  appropriation
\ncontains  a  provision for payment of  compensation  in\t the
\nmanner laid down in the clause.”  ‘
\n    I  do  not, however, see how the above  observations  of
\nMukherjea  J. in any way support the arguments of  Mr.\tP.R.
\nDas  that the existence of a public purpose is not a  provi-
\nsion  of article31 (2) but is an inherent condition  of\t any
\nlegislation for compulsory acquisition of private  property.
\nIt is significant that Mukherjea J. recognises that  article
\n31(2) “prescribes” a two-fold limit.  Surely, a limit  which
\nis “prescribed” by the articles must be a provision thereof.
\nIn  any case, what is implied in the clause must,  neverthe-
\nless,  be  a  provision of the clause,\tfor  the  expression
\n“provision”  is certainly wide enough to include an  implied
\nas  well as an express provision.  Be that as it may,  I  am
\nprepared to go further and say, for reasons I shall present-
\nly  explain, that the requirement of a public purpose as  an
\nessential  prerequisite\t to compulsory\tacquisition  is,  if
\nanything,  essentially\ta provision of that  clause  and  an
\nintegral part of it.\n<\/p>\n
      Article  31 is one of a group of articles included  in
\nPart III of the Constitution under the heading\t“Fundamental
\nRights”.   It  confers a fundamental right in so far  as  it
\nprotects  private property from State action. Clause (1)  of
\nthe  article protects the owner from being deprived  of\t his
\nproperty  save by authority of law.  A Close examination  of
\nthe language of clause (1)will
\n(2) [1950] S.C.R. 869.\n<\/p>\n
989<\/span><\/p>\n
show  that this immunity is a limited one and this  will  at
\nonce  be clearly perceived if we convert the  negative\tlan-
\nguage of clause (1) into positive language.  In its positive
\nform clause (1) will read :-\n<\/p>\n
    “Any person may be deprived of his property by authority
\nof law”.\n<\/p>\n
    The\t only  limitation put upon the State action  is\t the
\nrequirement that the authority of law is a prerequisite\t for
\nthe exercise of its power to deprive a person of his proper-
\nty.   This confers some protection on the owner in  that  he
\nwill  not be deprived of his property save by  authority  of
\nlaw  and this protection is the measure of  the\t fundamental
\nright.\tIt is to emphasise  this immunity from State  action
\nas  a fundamental right that the clause has been  worded  in
\nnegative language. Likewise, clause (9.) is worded in  nega-
\ntive  language in order to emphasise the  fundamental  right
\ncontained therein. The enunciation of this fundamental right
\nnecessarily  requires a statement of the ambit and scope  of
\nthe State action and to fix the ambit and scope of the State
\naction\tit  is necessary to specify the limitations  on\t the
\nState  action, for that limitation alone is the\t measure  of
\nthe  fundamental  right. Clause (2) of the article,  in\t its
\npositive  form, omitting words unnecessary for\tour  present
\npurpose, will read as follows:–\n<\/p>\n
“Any Property …………………………….may be taken
\npossession  of\tor acquired for public purposes\t under\t any
\nlaw  authorising  the\ttaking of such\tpossession  or\tsuch
\nacquisition  if\t the law provides for compensation  for\t the
\nproperty\ttaken\t     possession\t       of\t  or
\nacquired ………………………………….”\n<\/p>\n
    Put in the above form, the clause makes it clear at once
\nand beyond any shadow of doubt that there are three  limita-
\ntions imposed upon the power of the State, namely, (1)\tthat
\nthe taking of possession or acquisition of property must  be
\nfor a public purpose, (2) that such taking of possession  or
\nacquisition  must be under a law authorising such taking  of
\npossession or acquisition and (8) that the law must  provide
\nfor compensation
\n990<\/span>
\nfor the property so taken or acquired.\tThese three  limita-
\ntions constitute the protection granted to the owner of\t the
\nproperty  and is the measure of his fundamental right  under
\nthis clause. Unless these limitations were provisions of the
\narticle, the article would have afforded no immunity at all.
\nI am, therefore, clearly of opinion that the existence of  a
\npublic\tpurpose\t as a prerequisite to the  exercise  of\t the
\npower of compulsory acquisition is an essential and integral
\npart of the “provisions” of clause (2).\t If the\t requirement
\nof  a public purpose were not a provision of article  31(2),
\nthen  it will obviously lead us to the untenable  conclusion
\nthat  Parliament  will be free under  its  residuary  powers
\nunder  article\t248 and entry 97 of List I  of\tthe  Seventh
\nSchedule to make a law for acquiring private property  with-
\nout  any public purpose at all and to the still more  absurd
\nresult\tthat while Parliament will have to provide for\tcom-
\npensation under article 31(2) in a law made by it for acqui-
\nsition of property for a public purpose it will not have  to
\nmake any provision for compensation in a law made for acqui-
\nsition of property to be made without a public purpose. Such
\ncould  never have been the intention of the framers  of\t our
\nConstitution.  The existence of a public purpose as a condi-
\ntion  precedent to the exercise of the power  of  compulsory
\nacquisition being then, as I hold, a “provision” of  article
\n31  (2), an infringement of such a provision  cannot,  under
\narticles31  (4), 31-A and 3 I-B, be put forward as a  ground
\nfor questioning the validity of the Act.\n<\/p>\n
    Mr. P.R. Das’s second line of argument on this main head
\nis that the necessity for the existence of a public  purpose
\nis implicit in entry 36 in List II and that the existence of
\na  public purpose is also a requirement of entry 42 in\tList
\nIII  which is made a part of entry 36 in List. II by  virtue
\nof the words “subject to” etc., appearing at the end of that
\nentry and his conclusion is that in the absence of a  public
\npurpose the Bihar Legislature had no legislative  competency
\nunder  those two entries to enact the impugned Act and\tthat
\nthis ground of attack is still available
\n    991<\/span>
\nto  him\t notwithstanding the provisions of  articles  31(4),
\n31-A  and 31-B.\t He does not rely on any other part  of\t the
\nConstitution  as  insisting  on the existence  of  a  public
\npurpose\t as  a prerequisite for\t compulsory  acquisition  of
\nprivate\t property.  Entry 36 covers any purpose\t except\t the
\npurpose\t of  the  Union and is\tnot,  in  terms,limited\t  to
\npublic\tpurpose.  Secondly,the argument based on  the  words
\n“subject  to” etc. at the end of entry 36 in List  II  which
\nare  supposed to import the provisions of entry 42  in\tList
\nIII  into  entry 36 in List II is not  well-founded  and  it
\nbecomes\t obvious when we look at entry 33 in List I.   There
\nare  no words at the end of that entry as “subject to”\tetc.
\nand, therefore, the alleged requirement of a public  purpose
\nunder entry 42 in List III cannot be said to be incorporated
\nin entry 33 in List III would, therefore, follow that where-
\nas  under entry36 in List II which is to be read with  entry
\n42  in List III by reason of the words “subject to” etc.  in
\nentry 36 in List II the Legislature of a State can only make
\na  law for compulsory acquisition of property for  a  public
\npurpose, Parliament may, under entry 33 in List I which does
\nnot attract entry 42 in List Iii, make a law for  compulsory
\nacquisition  of property without a public purpose.   Such  a
\nresult\tcould never have been intended by the  Constitution.
\nBesides, turning to entry 42 in List III, I find nothing  in
\nsupport of Mr. P.R. Das’s contention. The words “acquired or
\nrequisitioned for the purposes of the Union or of a State or
\nfor any other public purpose” in that entry are merely words
\ndescriptive  of the preceding word “property”.\tThe  matters
\ncomprised  in entry 42 in List III, as a  legislative  head,
\nare the principles for the determination of compensation and
\nthe form and manner of giving the compensation for  property
\nwhich is described as  having  been  acquired  or   requisi-
\ntioned\tfor the stated purposes.  That entry cannot possibly
\nbe  regarded  as  a  legislative  head\tfor  acquisition  of
\nproperty  and  much less is the purpose or province of\tthat
\nentry  to lay down any requirement of a public purpose as  a
\ncondition precedent for the
\n992<\/span>
\nacquisition of any property.  In my opinion entry 42 in List
\nIII is of no assistance to Mr. P.R. Das for this part of his
\nargument.   Further, the reasons for which I have  discarded
\nhis arguments as to the obligation to provide for  compensa-
\ntion being implied in entry 36 in List 11 by itself or\tread
\nwith entry 42 in List III will also apply to this contention
\nmutatis mutandis and they need not be restated here.  To put
\nit shortly, the provisions of article31(2) which, as I\thave
\nexplained,  require the existence of a public purpose,\twill
\nexclude\t the implication sought to be read into entry 36  in
\nList  11 and entry 42 in List III.  Secondly, what  articles
\n31(4),\t31-A and 31-B exclude is a challenge to the  Act  on
\nthe  ground  of contravention of the “provision”  of  clause
\n(2).   If the “provision” of clause (2) of article 31 as  to
\nthe  necessity\tfor the existence of a public purpose  as  a
\nprerequisite  to compulsory acquisition of property is\talso
\nto be regarded as implicit in those two legislative entries,
\nsurely\tarticles  31 (4), 31-A and 31-B\t and  in  particular
\narticle31(4)  which  contain  the  words   “nothwithstanding
\nanything  in  this Constitution” will protect the  Act\tfrom
\nsuch  implied  provision, for reasons I\t have  already\t ex-
\nplained.  Mr. P.R. Das’s second main point must\t accordingly
\nbe rejected as untenable.\n<\/p>\n
    Assuming  that  the\t necessity for the  existence  of  a
\npublic purpose is not a provision of article 31(2) but is  a
\nprovision only of entry 36 in List 11 and\/or of entry 42  in
\nList  III  and that consequently articles 31 (4),  31-A\t and
\n31-B  do not preclude the respondents from  challenging\t the
\nvalidity of the Act on the ground of the legislative  incom-
\npetency arising out of the absence of a public purpose,\t the
\nquestion  still\t remains whether there is in fact  a  public
\npurpose\t within the meaning of our Constitution\t to  support
\nthe Act.  It is to be noted that there is no recital of\t any
\npublic\tpurpose in the Act itself, but it is  conceded\tthat
\nthis  circumstance is not fatal to the validity of the\tAct.
\nIt is, however, urged that this circumstance,  nevertheless,
\nshows  that the Legislature had, at the time of the  passing
\nof the Act, no public purpose in its view.  It is claimed
\n993<\/span>
\nthat,  apart from the absence of any such recital, there  is
\nno  indication\twhatever as to the existence of\t any  public
\npurpose in any of the operative provisions  of\tthe Act.  It
\nis  not disputed that as a result of this enactment  a\tvery
\nlarge sum of money now payable by the tenants as and by\t way
\nof  current  rent and arrears of rent  to  their  respective
\nlandlords will be intercepted by the State but it is  urged,
\non  the authority of certain passages in Cooley’s  Constitu-
\ntional Limitations, 8th Edn., Vol. II, p. 1118 (Footnote  1)
\nand  in Professor Willis’ Constitutional Law, p.  817,\tthat
\nthe  exercise of the power of taxation and not that  of\t the
\npower of eminent domain is the legitimate means for swelling
\nthe  public revenue. That the Act has no public\t purpose  to
\nsupport\t it  is sought to be established by saying  that  in
\nBihar the recorded proprietors are about 13,35,919 in number
\nand  that assuming that there are four persons in a  family,
\nnearly\tfive and a half million people will be ruined  as  a
\nresult\tof this legislation, although the actual tillers  of
\nthe soil will derive no benefit whatever therefrom, for they
\nwill  remain  where they are and will have to  continue,  as
\nheretofore,  to pay their rent, instead of to their  present
\nlandlords, to the State which, they will find, is no  better
\nthan a ruthless machine unsusceptible to any humane feeling.
\nThe contention is that the public purpose must be  something
\ndefinite,  something  tangible and something  immediate\t and
\nthat  there must be some indication of its existence in\t the
\nAct  itself and that the State cannot take private  property
\nto-day\tand say that it will think of the public purpose  at
\nits leisure.  This leads me to a consideration of what is  a
\npublic purpose within the meaning of our Constitution.
\n    We\thave been referred to some American authorities\t for
\nascertaining the meaning and implication of “public use”, an
\nexpression which obviously is of a more limited import\tthan
\nthe  expression “public purpose” used in  our  Constitution.
\nApart from this, a perusal of the text books, e.g.,  Consti-
\ntutional  Law  by  Professor Willis, p. 817  et\t seq.,\twill
\nimmediately make it clear
\n128<\/span>
\n994<\/span>
\nthat  the  notion as to what is a “public  use”\t is  rapidly
\nchanging  in America.  Formerly “public use” meant a use  by
\nthe public.  According to the modern view “public use” means
\nuseful to the public. The passage in Cooley’s Constitutional
\nLimitations,  Vol. II, pp. 1139-40 quoted by S.K. Das J.  of
\nthe Patna High Court summarises the position thus :–\n<\/p>\n
    “No satisfactory definition of the term” public use” has
\never  been achieved by the Courts.  Two\t different  theories
\nare  presented\tby  the judicial attempts  to  describe\t the
\nsubjects to which the expression would apply. One theory  of
\n“public use” limits the application to\t“employment”–“occu-
\npation”.  A more liberal and more flexible meaning makes  it
\nsynonymous  with  “public advantage”,  “public\tbenefit”.  A
\nlittle investigation will show that any definition attempted
\nwould exclude some subjects that properly should be included
\nin,  and include some subjects that must be  excluded  from,
\nthe  operation of the words “public use”.  As might  be\t ex-
\npected,\t the more limited application of the  principle\t ap-
\npears in the earlier cases, and the more liberal application
\nhas  been  rendered necessary by complex conditions  due  to
\nrecent\tdevelopments  of  civilization\tand  the  increasing
\ndensity\t of  population.  In the very nature  of  the  case,
\nmodern conditions and the increasing inter-dependence of the
\ndifferent  human factors in the progressive complexity of  a
\ncommunity make it necessary for the Government to touch upon
\nand limit individual activities at more points than  former-
\nly”.\n<\/p>\n
   To  the like effect are the following observations to  be
\nfound  in Corpus Juris, Vol. XX, article 39, at pp. 552\t and
\n553 under the caption “What is a public use” :–\n<\/p>\n
    “No\t general definition of what degrees of\tpublic\tgood
\nwill meet the constitutional requirements for a “public use”
\ncan  be framed, as it is in every case a question of  public
\npolicy.\t  The  meaning of the term is flexible\tand  is\t not
\nconfined  to what may constitute a public use at  any  given
\ntime, but in general it may be said to cover
\n995<\/span>
\na use affecting the public generally, or any number thereof,
\nas  distinguished from particular individuals.\tSome  Courts
\nhave gone so far in the direction of a liberal\tconstruction
\nas  to\thold that “public use” is  synonymous  with  “public
\nbenefit”,  “public utility”, or\t “public   advantage”,\t and
\nto  authorise the exercise of the power of eminent domain to
\npromote\t  such public  benefit,\t etc., especially where\t the
\ninterests  involved are of considerable magnitude,  and\t  it
\nis  sought  to\tuse  the power in order\t that  the   natural
\nresources  and\tadvantages  of a locality  may\treceive\t the
\nfullest development in view of the general welfare”.
\n    The\t learned  author thereupon proceeds to\tdiscuss\t the
\nmore  restricted meaning given to that expression. Mr.\tP.R.
\nDas has drawn our attention to the decision of the  Judicial
\nCommittee in Hamabai Framjee Petit v. Secretary of State for
\nIndia(1).   It\tshould be borne in mind\t that  the  Judicial
\nCommittee  in that case had to consider the meaning  of\t the
\nwords  “public\tpurposes” occurring in a lease of  the\t19th
\ncentury.   Even\t in  1914  the Judicial\t Committee  did\t not
\nthink fit to attempt a precise definition of the  expression
\n“public purpose” and was content to quote with approval\t the
\nfollowing passage from the judgment of Batchclor J.:-\n<\/p>\n
    “General definitions are, I think, rather to be  avoided
\nwhere  the avoidance is possible, and I make no\t attempt  to
\ndefine precisely the extent of the phrase ‘public  purposes’
\nin  the lease; it is enough to say that, in my opinion,\t the
\nphrase,\t whatever else it may mean, must include a  purpose,
\nthat is, an object or aim, in which the general interest  of
\nthe  community,\t as opposed ‘to the particular\tinterest  of
\nindividuals, is directly and vitally concerned”.
\n    And it is well that no hard and fast definition was laid
\ndown,  for the concept of” public purpose” has been  rapidly
\nchanging in all countries of the world. The reference in the
\nabove quotation to “the general
\n(1) (1915) L.R. 42 I.A. 44.\n<\/p>\n
996<\/span><\/p>\n
interest of the community”, however, clearly indicates\tthat
\nit is the presence of this element in an object or aim which
\ntransforms such object or aim into a public purpose.
\n    From what I have stated so far it follows that  whatever
\nfurthers  the general interests of the community as  opposed
\nto the particular interest of the individual must be regard-
\ned  as a public purpose. With the onward march of  civiliza-
\ntion our notions as to the scope of the general interest  of
\nthe community are fast changing and widening with the result
\nthat  our Old\tand narrower notions as to the\tsanctity  of
\nthe  private interest of the individual can no\tlonger\tstem
\nthe  forward flowing tide of time and must necessarily\tgive
\nway  to the broader notions of the general interest  of\t the
\ncommunity. The emphasis is unmistakably shifting  from\t the
\nindividual  to\tthe community. This modern  trend   in\t the
\nsocial and  political philosophy is well reflected and given
\nexpression  to in our Constitution.  Our Constitution, as  I
\nunderstand it, has not ignored the individual but has endea-
\nvoured\tto harmonise the individual interest with the  para-
\nmount interest of the community. As I explained in Gopalan’s
\ncase  (1)  and\tagain in Chiranjit Lal’s  case\t(supra)\t our
\nConstitution protects the freedom of the citizen by  article
\n19(I)(a). to (e) and (g) but empowers the State, even  while
\nthose  freedoms last, to impose reasonable  restrictions  on
\nthem  in  ‘the interest of the State or of public  order  or
\nmorality  or of the general public as mentioned\t in  clauses
\n(2) to (6).  Further, the moment even this regulated freedom
\nof  the individual becomes incompatible with  and  threatens
\nthe  freedom  of the community the State is given  power  by
\narticle\t 21, to deprive the individual of his life and\tper-
\nsonal  liberty in accordance with procedure  established  by
\nlaw,  subject, of course, to the provisions of\tarticle\t 22.
\nLikewise, our Constitution gives protection to the right  of
\nprivate\t property by article 19 (1) (f) not  absolutely\t but
\nsubject\t to reasonable restrictions to be imposed by law  in
\nthe interest of the general public
\n(1) [1950] S.C.R. 88.\n<\/p>\n
997<\/span><\/p>\n
under clause (5) and, what is more important as soon as\t the
\ninterest of the community so requires, the State may,  under
\narticle\t 31, deprive the owner of his property by  authority
\nof law subject to payment of compensation if the deprivation
\nis  by way of acquisition or requisition of the property  by
\nthe  State.   It is thus quite clear that  a  fresh  outlook
\nwhich places the general interest of the community above the
\ninterest  of  the  individual  pervades\t our   Constitution.
\nIndeed,\t what  sounded like idealistic slogans only  in\t the
\nrecent\tpast are now enshrined in the glorious\tpreamble  to
\nour  Constitution  proclaiming\tthe solemn  resolve  of\t the
\npeople\tof this country to secure to all  citizens  justice,
\nsocial,\t economic and political, and equality of status\t and
\nof opportunity.\t What  were regarded  only yesterday, so  to
\nsay, as fantastic formulae have now been accepted as  direc-
\ntive principles of State policy prominently set out in\tPart
\nIV  of the Constitution. The ideal We have set before us  in
\narticle 38 is to evolve a State which must constantly strive
\nto promote the welfare of the people by securing and  making
\nas effectively as it may be a social order in which  social,
\neconomic and political justice shall inform all the institu-
\ntions  of the national life. Under article 39 the  State  is
\nenjoined to direct its policy towards securing, inter  alia,
\nthat the ownership and control of the material resources  of
\nthe  community are so distributed as to subserve the  common
\ngood and that the operation of the economic system does\t not
\nresult\tin the concentration of wealth and means of  produc-
\ntion  to the common detriment.\tThe words “public  purposes”
\nused  in article 23 (2) indicate that the Constitution\tuses
\nthose  words in a very large sense. In the neverending\trace
\nthe law must keep pace with the realities of the social\t and
\npolitical  evolution  of  the country as  reflected  in\t the
\nConstitution.  If, therefore, the State is to give effect to
\nthese avowed purposes of our Constitution we must regard  as
\na public purpose all that will be calculated to promote\t the
\nwelfare of the people as envisaged in these directive  prin-
\nciples\tof  State policy whatever else that  expression\t may
\nmean. In
\n998<\/span>
\nthe light of this new outlook what, I ask, is the purpose of
\nthe  State in adopting measures for the acquisition  of\t the
\nzamindaries and the interests of the intermediaries ?  Sure-
\nly, it is to subserve the common good by bringing the  land,
\nwhich  feeds  and sustains the community and  also  produces
\nwealth\tby  its forest, mineral and other  resources,  under
\nState ownership or control. This State ownership or  control
\nover land is a necessary preliminary step towards the imple-
\nmentation of the directive principles of State policy and it
\ncannot but be a public purpose. It cannot be overlooked that
\nthe  directive principles set forth in Part IV of  Constitu-
\ntion  are not merely the policy of any particular  political
\nparty but are intended to be principles fixed by the Consti-
\ntution\t for directing the State policy whatever  party\t may
\ncome  into power. Further, it must always be borne  in\tmind
\nthat the object of the impugned Act is not to authorise\t the
\nstray acquisition of a particular propery for a limited\t and
\nnarrow\tpublic purpose but that its purpose is to bring\t the
\nbulk of the land  producing wealth under State ownership  or
\ncontrol by the abolition of the system of land tenure  which
\nhas been found to be archaic and non-conducive to the gener-
\nal  interest of the community.\tThe Act also sets up a\tLand
\nCommission  to\tadvise the State Government  generally\twith
\nregard\tto  the agrarian policy\t which it may from  time  to
\ntime follow. It is impossible to say that there is no public
\npurpose to support the Act.  This very Bihar Act was  before
\nthe  Constituent Assembly when it passed article 31 (4)\t and
\nagain when it took the trouble of amending the\tConstitution
\nfor  saving this very Act.  Would the  Constituent  Assembly
\nhave  thought fit to protect these Acts unless it were\tcon-
\nvinced\tthat this Act was necessary in the general  interest
\nof the community ? I find myself in agreement with Reuben J.
\nand S.K. Das J. that these circumstances also clearly  indi-
\ncate that the Constituent Assembly regarded this Act as well
\nsupported by a public purpose.\tTo put a narrow construction
\non the expression “public purpose” will, to my mind, be to
\n    999<\/span>
\ndefeat\tthe  general  purpose of our  Constitution  and\t the
\nparticular and\timmediate purpose of the recent\t amendments.
\nWe  must not read a measure implementing our   mid-twentieth
\ncentury\t  Constitution through spectacles tinted with  early
\nnineteenth century notions as to the sanctity or inviolabil-
\nity of individual rights.  I, therefore, agree with the High
\nCourt  that the impugned Act was enacted for a\tpublic\tpur-
\npose.\n<\/p>\n
    Mr.\t P.R. Das then puts up a narrow argument.  Assuming,
\nsays he, that, there is in the Act a general public  purpose
\nfor compulsory acquisition of zamindaries and tenures, there
\ncannot\tconceivably be any public purpose in support of\t the
\nAct in so far as it authorises the taking of the arrears  of
\nrent  or  the taking away of 4 to 12 1\/2 per  cent.  of\t the
\ngross  assets on the specious  plea that the landlords\tmust
\nbe supposed to spend that percentage of their  gross  income
\non works of benefit to the rayats of the estates and, there-
\nfore, that part of the Act is beyond the legislative  compe-
\ntence  of the Bihar Legislature. I regard this\targument  as
\nunsound\t for more reasons than one.  In the first place\t the
\nexistence of a public purpose being, as I hold, a  provision
\nof  article 31 (2), its absence, if any, in relation to\t the
\narrears of rent cannot, by reason of articles  31 (4),\t31-A
\nand 31-B be made a ground of attack against the\t Act.Second-
\nly,  it is an entirely wrong   approach to pick out an\titem
\nout  of\t a scheme of land reforms and say that item  is\t not
\nsupported  by  a public purpose.  One may just as  well\t say
\nthat  there is no public purpose in the acquisition of\tfor-
\nests or of mines and particularly of undeveloped mines,\t for
\nsuch  acquisition  has no bearing on a\tscheme\tof  agrarian
\nreforms in that it does not improve or affect the conditions
\nof  the tillers of the surface of the soil.  This, I  appre-
\nhend, is not the right way of looking at things.  The proper
\napproach  is to take the scheme as a whole and than  examine
\nwhether the entire scheme of acquisition is  for  a   public
\npurpose.   Thirdly,  I do not regard the deduction of  4  to
\n121\/2  per  cent.  of the gross assets\tas  acquisition\t  or
\nconfiscation
\n1000<\/span>
\nat all, but I regard it, for reasons stated above, as a part
\nof  a principle laid  down  by\tthe Act for the\t purpose  of
\ndetermining the amount of compensation as required by  arti-
\ncle 31 (2) and entry 42 in List III.  Finally, I do not\t see
\nwhy  the taking over of the arrears of rent, in the  context
\nof  the\t acquisition  of zamindaries, is not  for  a  public
\npurpose. As I have said, the acquisition of zamindaries\t and
\ntenures is a scheme for bringing about agrarian reforms\t and
\nameliorating the conditions of the tenants.  The object\t is,
\ninter  alia,  to  bring the tillers of the  soil  in  direct
\ncontact with the States so as to free them from the clutches
\nof  rapacious landlords and make them the masters  of  their
\nholdings  subject to payments of the dues to the State.\t  It
\nis  well-known that the bulk of the tenants are\t in  arrears
\nwith  their  rents and once the rents fall into\t arrear\t the
\ntenants\t find  it difficult to pay the\tcurrent\t rent  after
\nliquidating  a part of the arrears so that while they  clear
\npart of the old arrears the current rent falls into  arrear.
\nAccording  to  annexure B (2) to-the affidavit\tof  Lakshman
\nNidhi  affirmed\t on January 22, 1951, the  total  amount  of
\nRaiyati rent payable by the various tenants in the different
\ncircles\t of  the Darbhanga Estate alone will  exceed  rupees
\nthree lacs. It is not quite clear whether all these  arrears
\nare due from the actual rayats in the sense of actual  till-
\ners of the soil.  But leaving out from consideration for the
\npresent\t purposes  the arrears of rent due  by\tthe  tenure-
\nholders\t to their immediate superior tenureholder or to\t the
\nzamindar it can safely be taken that the bulk,\tif not\tall,
\nof the\tactual\trayats or tillers of the soil are habitually
\nand  perpetually in arrear with\t the  rent  of their   hold-
\nings   on  account of financial\t stringency  resulting\tfrom
\ntheir  chronic indebtedness.  In these circumstances if\t the
\nzamindaries and the tenures only are acquired under the\t Act
\nleaving the zamindars and the tenure-holders free to realise
\nthe  huge  arrears  of rent due by  the\t actual\t cultivating
\ntenants\t by legal process it will eventually result  in\t the
\nsale of the holdings of the actual tenants or, at any  rate,
\nof their right, title and
\n    1001<\/span>
\ninterest  therein and the possible purchase thereof  by\t the
\nzamindars  or  tenure-holders themselves at Court  sales  in
\nexecution  of  decrees or by private sales forced  upon\t the
\ntenants.  The  bulk of the actual tillers of the  soil\twill
\nthen become landless labourers and the entire scheme of land
\nreforms envisaged in the Act will be rendered wholly nugato-
\nry.   If the acquisition of the zamindaries and the  tenures
\nis,  as\t I hold, dictated or inspired by  the  sound  public
\npurpose\t of ameliorating the economic and  political  condi-
\ntions  of the actual tenants, the self same  public  purpose
\nmay  well require the acquisition of the arrears of rent  so
\nas  to avert the undesirable but inevitable  consequences  I
\nhave  mentioned.   The Bihar Legislature  obviously  thought
\nthat the tenants in arrears will have better treatment and a
\nmore reasonable accommodation, in the matter of the liquida-
\ntion  of  the-huge arrears, from the State  which  will\t act
\nuNder  the  guidance of the Land Commission  than  from\t the
\nexpropriated  landlords\t whose sole  surviving\tinterest  in
\ntheir  erstwhile tenants will only be to realise as much  of
\nthe  arrears  as they can from the tenants  and\t within\t the
\nshortest  possible time without any mercy or  accommodation,
\nThe  same  remarks apply to the acquisition of\tdecrees\t for
\narrears of rent. The overriding public purpose of ameliorat-
\ning  the conditions of the cultivating rayats may well\thave
\ninduced the Legislature to treat the arrears of rent and the
\ndecrees\t for rent differently from the other ordinary  move-
\nable  properties of the zamindars or  tenure-holders,  e.g.,
\ntheir  money  in the bank or their jewellery  or   ornaments
\nwith   which the  rayats have no concern and to provide\t for
\nthe  acquisition  of the arrears and the  decrees.   In\t the
\npremises,  the second  main ground  of\tattack\tlevelled  by
\nMr.  P.R.  Das\tagainst the Act must  be  rejected.  I\t am,
\nhowever,   free\t to confess that if I could agree  with\t Mr.
\nP.R. Das that these  provisions of the impugned Act are\t bad
\nfor  want of a public purpose, I am not at all sure  that  I
\nwould  not have found it extremely difficult to\t resist\t his
\nfurther argument that the entire Act was bad, for it might
\n1002<\/span>
\nnot have been very easy to presume that if the Bihar  Legis-
\nlature\thad known that these provisions of the Act might  be
\nheld  bad it would nevertheless have passed the other  parts
\nof  the Act in that truncated form.  The acquisition of\t the
\narrears of rent appears to me to be an integral part of\t the
\nscheme and inextricably interwoven with it.  Indeed, it\t may
\nwell  have been that the scheme of agrarian reform  was\t not
\nconsidered by the Bihar Legislature to be at all capable  of
\neasy implementation by the State without the acquisition  of
\nthe arrears of rent. As, however, I have taken the view that
\nno part of the Act is bad for want    of a public purpose, I
\nneed not pursue any further the question of the severability
\nof  the Act or to refer to the judicial decisions relied  on
\nby learned counsel on both sides.\n<\/p>\n
    Ground  C:\tMr. P.R. Das’s third point is that  the\t Act
\nconstitutes  a\tfraud on the Constitution, that is  to\tsay,
\nwhile it purports to be in conformity with the Constitution,
\nit,  in\t effect,  constitutes a defiance of  it.   The\tAct,
\naccording to him, pretends to comply with the constitutional
\nrequirements in that it sets out to lay down certain princi-
\nples on which compensation is to be determined and the\tform
\nand  the  manner in which such compensation is to  be  given
\nbut,  in effect, makes out a scheme for non-payment of\tcom-
\npensation. The Act, he urges, purports to pay back fifty per
\ncent. of the arrears of rent as compensation but in  reality
\nconfiscates the other fifty per cent. without any  compensa-
\ntion.\tFurther, under the guise of deducting 4 to  121\t 1\/2
\nper cent of the gross income the State is in reality  appro-
\npriating  a  large sum under this head.\t All this,  he\tcon-
\ncludes, is nothing but pretence or a mere shift and  contri-
\nvance  for  confiscating private  property.   The  argument,
\nwhen   properly understood, will be found to resolve  itself
\ninto  an attack on the legislative competency of  the  Bihar
\nLegislature  to\t pass  this Act.  On  ultimate\tanalysis  it
\namounts to nothing more than saying that while pretending to
\ngive  compensation  the\t Act does not really give it.  It is
\nthe absence of a provision
\n1003<\/span>
\nfor  just   and\t adequate compensation that makes  the\t Act
\nbad,   because, according to Mr. P.R.Das,  the\t legislative
\npower  under  entry 36 in List II and entry 42 in  List\t III
\nrequires  the  making of such a provision.  The\t failure  to
\ncomply\twith this constitutional condition for the  exercise
\nof legislative power may be overt or it may be covert.\tWhen
\nit is overt, we say the law is obviously bad for non-compli-
\nance  with the requirements of the Constitution, that is  to
\nsay, the law is ultra vires.  When, however, the  noncompli-
\nance  is covert, we say that it is a fraud on the  Constitu-
\ntion,  the  fraud complained of being that  the\t Legislature
\npretends to act within its power while in fact it is not  so
\ndoing.\t Therefore, the charge of fraud on the\tConstitution
\nis,  on\t ultimate analysis, nothing but\t a  picturesque\t and
\nepigrammatic  way of expressing the idea  of  non-compliance
\nwith  the  terms of the Constitution. Take the case  of\t the
\nacquisition  of\t the arrears of rent. It is  said  that\t the
\nprovision in the Act for the acquisition of arrears of\trent
\nis  a fraud on the legislative power given by the  Constitu-
\ntion.  I ask myself as to why must it be characterised as  a
\nfraud?\tI find nothing in the Constitution which  says\tthat
\nthe  arrears  of rent must not be acquired  and.  therefore,
\nthere  is no necessity for any covert attempt to do what  is
\nnot prohibited. I have already explained that in a scheme of
\nland reforms such as is envisaged in the Act the acquisition
\nof  the arrears of rent may properly accompany the  acquisi-
\ntion  of the zamindaries and the tenures. Where. then,\tdoes
\nthis  theory of fraud come in ?\t The answer must  eventually
\nbe that a moiety of arrears are taken away without compensa-
\ntion.  Again,  take the case of the acquisition\t of  non-in-
\ncome-yielding  properties. Why, I ask, is it called a  fraud
\non the Constitution to take such property ? Does the Consti-
\ntution prohibit the acquisition of such property ?  Obvious-
\nly it does not.\t Where, then, is the fraud? The answer\tthat
\ncomes  to my mind is that it is fraud because the  Act\tpro-
\nvides  for  compensation only on the basis  of\tincome\tand,
\ntherefore,  properties\t which\tare at\tpresent\t non-income-
\nyielding but  which  have  very\t rich
\n1004<\/span>
\npotentialities are acquired without any compensation at all.
\nSimilar\t answer\t becomes  obvious  in  connection  with\t the
\ndeduction of 4 to 12 1\/2 per cent. of the gross assets under
\nthe  head  “Works of Benefit to the  Rayats”.\tOn  ultimate
\nanalysis,  therefore,  the  Act is really  attacked  on\t the
\nground that it fails to do what is required by\tthe  Consti-
\ntution\tto do, namely, to provide for compensation  for\t the
\nacquisition  of\t the  properties and  is,  therefore,  ultra
\nrites.\t This,\tto my mind, is the same argument as  to\t the
\nabsence\t of  just compensation in a different form  and\t ex-
\npressed\t in a picturesque and attractive language.   I\thave
\nalready\t dealt\twith the question of absence of a  provision
\nfor  just  compensation while dealing with  Mr.\t P.R.  Das’s
\nfirst point and I repeat that the obligation to provide\t for
\ncompensation  is  not  implicit in entry 36 in\tList  II  by
\nitself or read with entry 42 in List III but is to be  found
\nonly in article 31 (2), that under entry 42 in List III\t the
\nAct  has laid down a principle for determining\tcompensation
\nand,  therefore, there can be no question as to\t legislative
\nincompetency  for any alleged non-compliance with  any\tsup-
\nposed  requirement said to be implicit in these entries.  If
\nthe  principles so laid down in the Act do not in  any\trare
\ncase  produce  any compensation or do not  produce  adequate
\ncompensation in some cases, such absence of compensation may
\nbe  a contravention of article 31 (2) but  in view of  arti-
\ncles 31 (4), 31-A and 31-B and particularly due to the words
\n“notwithstanding anything in this Constitution” occurring in
\narticle\t 31 (4) it cannot be made a ground of attack on\t the
\nAct,  even though such ground is formulated in\ta  different
\nbut attractive language, namely, as a fraud on the Constitu-
\ntion.  Accordingly,  this point must also be  rejected.\t  I,
\nhowever,  repeat  that ii I took a different  view  I  would
\nstill  have the same difficulty as to the inseverability  of
\nthe different provisions  of the  Act as  I  have  hereinbe-
\nfore indicated.\n<\/p>\n
      Re. Ground D: Mr. P.R. Das’s fourth point is that\t the
\nAct is unenforceable in that section 32 (2)
\n1005<\/span>
\nprovides for compensation in forty equal instalments without
\nspecifying  the period of interval between the\tinstalments.
\nIn  course of arguments, however, Mr. P. R. Das has  thought
\nfit  not  to press this point and accordingly  it  does\t not
\nrequire any refutation.\n<\/p>\n
    Re. Ground E: Mr. P.R. Das’s last main point is that the
\nAct  has  delegated essential  legislative functions to\t the
\nExecutive  Government  and is, therefore, invalid.   Article
\n31 (2) requires that the law authorising the taking  posses-
\nsion  or the acquisition of land for public  purpose  should
\nprovide\t for compensation for the property taken  possession
\nof  or acquired and should either fix the amount or  specify
\nthe principles on which, and the manner in which the compen-
\nsation\tis to be determined and given. Entry 42 in List\t III
\ntalks  of principles on which compensation is to  be  deter-
\nmined and the form and the manner in which such compensation
\nis  to be given. The argument is that the  Constitution\t has
\nleft  to  Parliament or the State Legislature  the  duty  of
\nspecifying the principles on which, and the form and  manner
\nin which the compensation is to be determined and given\t but
\nthe Bihar Legislature by sections (22)of the Act has  simply
\nprovided  that the amount of compensation shall be  paid  in
\ncash  or in bonds or partly in cash and partly in bonds\t and
\nthat the bonds shall be either negotiable or  non-negotiable
\nand  non-transferable and be payable in forty equal  instal-
\nments  and has not laid down any decisive provision but\t has
\nleft the matter to the State Government to decide.  It\thas,
\ntherefore, failed to discharge the duty which was  expressly
\nleft  to its knowledge, wisdom and patriotism. Mr. P.R.\t Das
\ncomplains that the Legislature has shirked its responsibili-
\nty  and\t delegated this essential legislative power  to\t the
\nState Government to be exercised under rules made by  itself
\nunder  its rulemaking power under section 43 (2)  (p).\t The
\nquestion of the propriety and legality of the delegation  of
\nlegislative power has recently been considered by this Court
\nin In re The Delhi Laws Act, 1912 etc.(1).  If I
\n(1) [1951] S.C.R. 747.\n<\/p>\n
1006<\/span><\/p>\n
were to deal with this matter according to my own notions, I
\nwould  have dismissed this argument in limine, for here\t the
\nLegislature has not abdicated or effaced itself in the sense
\nI have explained in my opinion in that case.  When I look at
\nthe matter on the basis of the principles laid down in\tthat
\ncase  by the late Chief Justice and my learned\tbrothers  to
\nwhich  Mr.  P.R. Das has referred, I have  to  overrule\t his
\ncontention all the same.  Here section 32 clearly  indicates
\nthat the Legislature has applied its mind to the problem and
\nit has laid down the principle that the compensation may  be
\npaid  in  cash or in bonds or partly in cash and  partly  in
\nbonds  and that ii a payment is to be made either wholly  or
\npartly in bonds, these\tbonds  may be  either negotiable  or
\nnon-negotiable\tand non-transferable.  Having laid down\t the
\nprinciple, the Legislature has, by a rule made under section
\n43  (3) (p), left it to the Executive to determine the\tpro-
\nportion\t in  which  the compensation  shall be\tpayable\t  in
\ncash and-in bonds  and the manner of such payment of compen-
\nsation.\t  These\t details,  it will be  observed,  depend  on
\nspecial\t circumstances, e.g., the extent of the ability,  of
\nGovernment  to\tpay, the extent of the\tnecessities  of\t the
\nproprietors  and many other considerations, with  which\t the
\nExecutive  Government would be more familiar than the Legis-
\nlature itself.\tI am unable to accept Mr. P.R. Das’s conten-
\ntion  that  this  amounts to a delegation  of  an  essential
\nlegislative  function within the meaning of the decision  of
\nmy learned brothers.\n<\/p>\n
    Mr.\t Sanjiva Chowdhuri has urged that the Land  Acquisi-
\ntion Act, 1894 being continued by the Constitution and\tthat
\nAct which is a Central Act having been extended by notifica-
\ntion  in  1899 to Ramgarh State for which  he  appears,\t the
\nCentral Act must apply to Ramgarh until the notification  is
\nwithdrawn and the impugned Act cannot apply for\t determining
\nthe  compensation, for the field is already occupied by\t the
\nCentral\t Act of 1894.  It may, however, be noticed that\t the
\nprovision for compensation in that Act
\n1007<\/span>
\napplies\t only to lands acquired under that Act.\t It  has  no
\napplication  to\t lands acquired under  other  statutes\tand,
\ntherefore, the provision for compensation of the Land Acqui-
\nsition Act cannot apply to acquisitions under the Bihar\t Act
\nand,  therefore,the doctrine of occupied field can  have  no
\napplication.   In my opinion there is no substance  in\tthis
\ncontention.\n<\/p>\n
For reasons stated above, I allow these appeals.
\n    CHANDRASEKHARA AIYAR J.–The facts which have given rise
\nto these cases have been fully set out in the judgment\tjust
\nnow delivered by my learned brother Mahajan J. and need\t not
\nbe  repeated.  The conclusions reached by him and  Mukherjea
\nJ.  have my concurrence.  Ordinarily, I would  have  stopped
\nwith  the expression of my agreement, but having  regard  to
\nthe  importance\t of the question argued and the\t stakes\t in-
\nvolved, I desire to add a few words of my own on some of the
\npoints discussed.\n<\/p>\n
    Article  31 (1) of our Constitution provides “No  person
\nshall be deprived of his property save by authority of law”.
\n  There are three modes of deprivation–(a)  destruction,(b)
\nacquisition and (c) requisition.  Destruction may take place
\nin  the\t interests  of public health or\t the  prevention  of
\ndanger\tto  life or property but with this we  are  not\t now
\nconcerned. In the case of “acquisition”, there is an element
\nof permanency, and in the case of “requisition” there is  an
\nelement of temporariness. Except for this distinction,\tboth
\nmodes stand on the same footing, as regards the\t rights\t  of
\nthe State vis-a-vis the rights of the private citizens.
\n    Under  the Constitution, when property is  requisitioned
\nor  acquired, it may be for a Union purpose or a State\tpur-
\npose,  or for any other public purpose. Entry 33 in  List  I
\n(Union\tList)  of the Seventh Schedule to  the\tConstitution
\nspeaks of acquisition or requisitioning of property for\t the
\npurposes of the Union.\tWhen we come to entry 42 of List 111
\n(Concurrent List), we find these words: “Principles on which
\ncompensation for property acquired or requisitioned for\t the
\npurposes
\n1008<\/span>
\nof  the Union or of a State or for any other public  purpose
\nis  to be determined, and the form and the manner  in  which
\nsuch compensation is to be given.”\n<\/p>\n
    From  very early times, law has recognized the right  of
\nGovernment  compulsorily  to acquire private  properties  of
\nindividuals  for  a public purpose and this has come  to  be
\nknown as the law of eminent domain. But it is a principle of
\nuniversal law that the acquisition can only be on payment of
\njust  compensation. Story on the Constitution, Vol. 2,\tpage
\n534, paragraph 1790, has the following passage in discussing
\nthe concluding clause of the Fifth Amendment of the American
\nConstitution:\n<\/p>\n
    “The  concluding clause is that private  property  shall
\nnot be taken for public use without just compensation.\tThis
\nis  an\taffirmance of a great doctrine\testablished  by\t the
\ncommon\tlaw for the protection of private property.   It  is
\nfounded in natural equity, and is laid down by jurists as  a
\nprinciple of universal law.  Indeed, in a free\t government,
\nalmost\t all other  rights would become utterly\t  worthless,
\nif the Government possessed an uncontrollable power over the
\nprivate\t fortune of every citizen.  One of  the\t fundamental
\nobjects of every good government must be the due administra-
\ntion of justice;  and how vain it would be to speak of\tsuch
\nan administration, when all property is subject to the\twill
\nor caprice of the legislature and the rulers.”\n<\/p>\n
    The\t payment of compensation is an essential element  of
\nthe valid exercise of the power to take. In the leading case
\nof Attorney-General v. De Keyser’s Royal Hotel, Ltd (1) Lord
\nDunedin spoke of the payment of compensation as a  necessary
\nconcomitant  to the taking of property. Bowen L.J.  said  in
\nLondon and North Western Ry. Co. v. Evans (2):’
\n    “The Legislature cannot fairly be supposed to intend. in
\nthe absence of clear words showing such intention, that\t one
\nman’s  property\t shall\tbe confiscated for  the\t benefit  of
\nothers, or of the public. without any
\n(1) [1920] A.C.p. 508.\t     (2) [1893] I Ch. pp. 16 & 28.\n<\/p>\n
1009<\/span><\/p>\n
compensation  being provided for him in respect of  what  is
\ntaken compulsorily from him.  Parliament in its\t omnipotence
\ncan, of course. override or disregard this ordinary  princi-
\nple   ……  if it sees fit to do so, but it is not  likely
\nthat it will be found disregarding it, without plain expres-
\nsions of such a purpose .”\n<\/p>\n
    This  principle is embodied in article 31(2)of our\tCon-
\nstitution in these terms :-\n<\/p>\n
    No property, movable or immovable, including any  inter-
\nest  in, or in any company owning, any commercial or  indus-
\ntrial undertaking, shall be taken possession of or  acquired
\nfor public purposes under any law authorising the taking  of
\nsuch possession or such acquisition, unless the law provides
\nfor  compensation  for the property taken possession  of  or
\nacquired  and either fixes the amount of  the  compensation,
\nor  specifies  the principles on which, and  the  manner  in
\nwhich,’ the compensation is to be determined and given.”\n<\/p>\n
    We shall not here trouble ourselves with sub-clauses (3)
\nand (4) of the article and with articles 31-A and 31-B which
\nwere  introduced by way of amendment under the\tConstitution
\nFirst  Amendment Act, 1951, dated 18-6-1951.  They  will  be
\nconsidered later.\n<\/p>\n
    The\t argument of Shri P.R. Das that the payment of\tcom-
\npensation  is  a concomitant obligation\t to  the  compulsory
\nacquisition  of properties by the State can be\taccepted  as
\nsound; but when he went further and urged that it was  found
\nin  an implicit form in entry 42 of the Concurrent List,  he
\nwas  by\t no means on sure ground.  The entries give  us\t the
\nbare  heads of legislation.  For ascertaining the  scope  or
\nextent\tor ambit of the legislation and the rights  and\t the
\nduties\tcreated\t thereby, we must  examine  the\t legislation
\nitself\tor must have resort  to general and  well-recognized
\nprinciples of law of jurisprudence.  No resort can be had to
\nanything  implicit or hidden when the statute makes  an\t ex-
\npress  provision on the same subject.  As just\tcompensation
\nhas  to be paid when property is acquired for a public\tpur-
\npose, the legislation has to
\n1010<\/span>
\nformulate  the principles for determining  the\tcompensation
\nand  the  form and the manner in which it is  to  be  given.
\nEntry  42 means nothing more than a power conferred  on\t the
\nLegislature for achieving this end.  The power is  conferred
\nbut there is no duty cast to provide for compensation.\t For
\nany statement that the payment of compensation is a  primary
\ncondition for acquisition of property for a public  purpose,
\nwe have to look at the provisions of the Constitution itself
\nand  this we find in article 31 (2)as stated  already.\t Mr.
\nDas was obliged to take up the untenable position that entry
\n42  of its own force implies an obligation to pay  compensa-
\ntion, as he couldnot otherwise jump over the hurdles created
\nin his way by sub-sections (3) and (4) of article 31 and the
\nnew articles 31-A and 31-B.\n<\/p>\n
    The\t learned Attorney-General contended in dealing\twith
\nentry  42 that legislation under entry 42 can also lay\tdown
\nprinciples  that would lead to the non-payment\tof any\tcom-
\npensation  and\t he   cited  Atiqa Begurn’s  case(1)  as  an
\nauthority in his support. This contention appears to  me  to
\nbe  as unsound as Mr. Das’s argument that the obligation  to
\npay  or give compensation wasimplicit in the said entry.  As
\nthere can be no acquisition without compensation, the  terms
\nof entry 42enable the legislature to lay down the principles
\nand  provide  further for the form and manner of payment. If
\nthe principles are so formulated as to result in non-payment
\naltogether,  then the legislature would be evading  the\t law
\nnot only covertly but flagrantly. There is nothing in  Atiqa
\nBegum’s case that supports the argument.  It was there\theld
\nthat under the head “payment of rent” there could be  legis-
\nlation providing for remission of rent.\t Payment of rent  is
\nnot  a legal obligation of every tenureand  the\t legislature
\ncan  enact  that under certain circumstances  or  conditions
\nthere  shall be remission of rent. But as regards  compensa-
\ntion for State acquisition, its payment is a primary  requi-
\nsite  universally recognized by law.  This is the  essential
\ndistinction to remember
\n(1) [1940] F.C.R, 110.\n<\/p>\n
1011<\/span><\/p>\n
when  we  seek to apply the case quoted. The last  words  in
\nentry 42 “form and the manner in which such compensation  is
\nto  be given” clearly mean that the  principles\t determining
\ncompensation  must  lead to the giving or  payment  of\tsome
\ncompensation.\tTo  negate compensation\t altogether  by\t the
\nenunciation of principles leading to such a result would  be
\nto contradict the very terms of the entry and such a meaning
\ncould not be attributed to the framers of the Lists.
\n    This,  however,  does not carry Shri P.R.  Das  anywhere
\nnear success. Article 31(4) is the first stumbling block  in
\nhis way.  It provides :–\n<\/p>\n
    “If any Bill pending at the commencement of this Consti-
\ntution in the Legislature of a State has, after it has\tbeen
\npassed by such Legislature, been reserved for ,.he consider-
\nation  of the President and has received his  assent,  then,
\nnotwithstanding\t anything in this Constitution, the  law  so
\nassented to shall not be called in question in any court  on
\nthe  ground  that it contravenes the  provisions  of  clause
\n(2).”\n<\/p>\n
    The\t Bill  which  subsequently became  “The\t Bihar\tLand
\nReforms\t Act, 1950” was pending at the commencement  of\t the
\nConstitution  in the legislature of the State, and after  it
\nwas  passed  by\t the legislature, it was  reserved  for\t the
\nconsideration  of  the President and  received\this  assent.
\nTherefore the bar that it shall not be called in question in
\nany  court on the ground that it contravenes the  provisions
\nof clause (2) becomes applicable. True, compensation has  to
\nbe provided for, by reason of sub-clause (2) of the article,
\nbut sub-clause (4) postulates an exception and the right  to
\nchallenge  the\tvalidity of the Act on the  ground  that  no
\ncompensation has been provided for or that the\tcompensation
\nis  really illusory or inadequate is taken away. As if\tthis
\nwere  not enough, two more stiles have been erected  in\t his
\nway  and they are the new articles 31-A and 31-B brought  in
\nby  way\t of amendment. Article 31-A, sub-clause\t (1)  is  in
\nthese terms :–\n<\/p>\n
    “Notwithstanding  anything\tin the foregoing provisions.
\nof this Part, no law providing for the
\n1012<\/span>
\nacquisition  by\t the State of any estate or  of\t any  rights
\ntherein\t or  for the extinguishment or modification  of\t any
\nsuch rights shall be deemed to be void on the ground that it
\nis  inconsistent with, or takes away or abridges any of\t the
\nrights conferred by any provisions of this Part:\n<\/p>\n
    Provided that where such law is a law made by the Legis-
\nlature of a State, the provisions of this article shall\t not
\napply thereto unless such law, having been reserved for\t the
\nconsideration of the President, has received his assent.
\nArticle 31-B provides :\n<\/p>\n
“Validation  of\t certain  Acts\tand  Regulations  :–Without
\nprejudice  to the generality of the provisions contained  in
\narticle\t 31-A none of the Acts and Regulations specified  in
\nthe  Ninth Schedule nor any of the provisions thereof  shall
\nbe  deemed to be void, or even to have become void,  on\t the
\nground that such Act, Regulation or provision is  inconsist-
\nent  with, or takes away or abridges any of the rights\tcon-
\nferred by, any provisions of this Part, and  notwithstanding
\nany  judgment, decree or order of any court or\ttribunal  to
\nthe  contrary each of the said Acts and\t Regulations  shall,
\nsubject to the power of any competent Legislature to  repeal
\nor amend it, continue in force.”\n<\/p>\n
    When we look at the Ninth Schedule to the Amending\tAct,
\nthe  very  first item mentioned is “The Bihar  Land  Reforms
\nAct, 1950.”\n<\/p>\n
In the face of these almost insuperable obstacles, Shri P.R.
\nDas candidly admitted that he could urge nothing as  regards
\nthe  adequacy  or the illusory nature  of  the\tcompensation
\nprovided  in  the Act, if he was not able  to  convince\t the
\nCourt on his main point that he could challenge the  offend-
\ning Act on grounds other than those mentioned in Part III of
\nthe  Constitution, and that there was something\t in  entries
\nNo.  36 of the State List and No. 42 of the Concurrent\tList
\nread  together\twhich imposed on the  State  Legislature  an
\nobligation  to\tprovide lot the payment of  just  or  proper
\ncompensation and that the non-observance of this
\n   1013<\/span>
\nobligation entitles him to challenge the validity of the Act
\nas unconstitutional.\n<\/p>\n
    The\t acquisition  of property can only be for  a  public
\npurpose.   Under  the  Land Acquisition Act, I\tof  1894,  a
\ndeclaration  by\t the Government that land is  needed  for  a
\npublic purpose shall be conclusive evidence that the land is
\nso needed and Courts cannot go into the question whether the
\npublic\tpurpose has been made out or not.  There is no\tsuch
\nprovision  in any article of the Constitution with which  we
\nhave to deal.  It is true that sub-clause (2) of article  31
\nspeaks of property being acquired for public purposes.\t The
\nbar  created by sub-clause (4) of article 31 relates to\t the
\ncontravention  of the provisions of clause (2).\t The  provi-
\nsion of clause (2) is only as regards compensation as can be
\ngathered from its latter part:-\n<\/p>\n
    “Unless  the  law  provides\t for  compensation  for\t the
\nproperty  taken possession of or acquired and  either  fixes
\nthe amount of the compensation, or specifies the  principles
\non which, and the manner in which, the compensation is to be
\ndetermined and given.”\n<\/p>\n
    It\tis assumed, rightly, that the existence of a  public
\npurpose is part and parcel of the law and is inherent in it.
\nThe  existence\tof a public purpose is not  a  provision  or
\ncondition  imposed by article 31 (2) as a limitation on\t the
\nexercise  of  the power of acquisition. The  condition\tpre-
\nscribed\t is  only as regards compensation.  Article  31\t (4)
\ndebars\tthe challenge of the constitutionality of an Act  on
\nthis  ground but no other. Whether there is any public\tpur-
\npose at all, or whether the purpose stated is such a purpose
\nis open, in my opinion, to judicial scrutiny or review.
\n    When  the  legislature declares that there is  a  public
\npurpose behind the legislation, we have of course to respect
\nits  words. The object of the Act in question is  to  extin-
\nguish  the interests of intermediaries like zamindars,\tpro-
\nprietors,  and estate and tenure-holders etc., and to  bring
\nthe actual cultivators into direct relations with the  State
\nGovernment.   To achieve this end, several  provisions\thave
\nbeen enacted for the
\n1014<\/span>
\ntransfer  and the vesting of such interests in the State  as
\nregards\t various  items of properties. It is  impossible  to
\ndeny  that  the Act is inspired and dominated  by  a  public
\npurpose,  but the question still remains whether the  taking
\nover  of  particular items can be said to be  for  a  public
\npurpose.  It  is in this connection that the  two  items  of
\n“arrears  of  rent”  and “cost of works of  benefit  to\t the
\nraiyats”  dealt with in section 4, clause (b),\tand  section
\n23,  clause (f) respectively of the Act, have to be  consid-
\nered.\n<\/p>\n
    The\t taking over of “arrears of rent” does not  seem  to
\nhave  even  a remote connection with any  question  of\tland
\nreform.\t  It  stands on no better footing than\tif  the\t Act
\nsought to take over the cash on hand or in the banks of\t the
\nzamindars,  proprietors\t or tenureholders.  It\tis  only  an
\naccident that the rents in question were not realised before
\nthe  passing of the Act. Whether realised or not,  they\t are
\nhis moneys due and payable to him by the ryots.\t The  conse-
\nquences of vesting of estates must have some relation to the
\ntenures\t themselves and have some connection, remote  though
\nit  may be, with the agrarian reforms undertaken or  contem-
\nplated. Supposing that we have a legislation stating that as
\nit is necessary to eliminate rent collectors and farmers  of
\nrevenue and to apportion and distribute land on an equitable
\nbasis  amongst\tthe tillers of the land and confer  on\tthem
\nrights of permanent occupancy and also to bring them direct-
\nly  into contact with the State, all moneys which  the\tpro-
\nprietors  had  collected as and by way of  rent\t from  their
\nestates\t for  three years prior to the commencement  of\t the
\nAct, shall vest in and be payable to the State, could it  be
\nsaid  by any stretch of reason that any public\tpurpose\t had
\nbeen  established for the taking of the moneys ? Arrears  of
\nrent  stand  on\t no better footing. Any\t public\t purpose  in
\ntaking\tthem  over  is conspicuous by its  absence.   It  is
\nfairly obvious that resort was had to the arrears either for
\naugmenting  the\t financial  resources of the  State  or\t for
\npaying\tcompensation to the smaller proprietors out of\tthis
\nparticular item of acquisition.\t Property of individuals
\n    1015<\/span>
\ncannot\tbe  appropriated  by the State under  the  power  of
\neminent\t domain for the mere purpose of adding to its  reve-
\nnues;  taxation is the recognised mode to secure  this\tend.
\nIf the latter was the real object, it must be observed\tthat
\nto  take one man’s property compulsorily for giving it\taway
\nto another in discharge of Government’s obligations is not a
\nlegitimate and permissible exercise of the power of acquisi-
\ntion.\n<\/p>\n
    Sub-clause\t(1) of section 21 no doubt provides that  50
\nper  cent.  of the arrears of rents shall be  added  to\t the
\namount\tof compensation.  This means one of two\t things\t (a)
\neither the other 50% is taken without payment of any compen-
\nsation, which is confiscation virtually or (b) 50 per  cent.
\nis  taken  as  the  consolidated value\tof  the\t arrears  of
\nrent–a\t lump sum payment for the acquisition of  choses  in
\naction or actionable claims. Taken either way, it is  diffi-
\ncult  to see wherein the public purpose\t consists.   Whether
\nmoneys could be compulsorily acquired at all by a State is a
\nmoot question. Willis says in his Constitutional Law at page
\n816  :–“While, as stated above, any and all property is  in
\ngeneral\t subject  to the exercise of the  power\t of  eminent
\ndomain,\t there are certain rather unusual forms\t of  private
\nproperty  which\t cannot thus be taken.\tThese  are  corpses,
\nmoney, choses in action, property used by the government  in
\nits  governmental capacity, property to be used for  a\tmere
\nsubstituted ownership unless such substituted ownership is a
\nmore necessary use, and perhaps trust property dedicated  to
\na  State, mortgage liens, and suits to quiet title.”   under
\nthe heading “what property is subject to the right”,  Cooley
\nobserves  in Vol. II of his book on  Constitutional  Limita-
\ntions, at page 1117 :”From this statement, however, must  be
\nexcepted  money,  or that which in ordinary  use  passes  as
\nsuch,  and which the Government may reach by  taxation,\t and
\nalso  rights  in action, which can only be  available\twhen
\nmade to produce money; neither of which can it be needful to
\ntake under this power.”\t In the footnote he points out :–\n<\/p>\n
1016<\/span><\/p>\n
    “Taking   money under the right of eminent domain,\twhen
\nit must be compensated in money afterwards, could be nothing
\nmore  or less than a forced loan, only to be justified as  a
\nlast  resort in a time of extreme peril, where\tneither\t the
\ncredit of the government nor  the power of taxation could be
\nmade available.”\n<\/p>\n
    Nicols in his work on “Eminent Domain” does not disagree
\nwith  this view; on the other hand, he says at page  100  of
\nVol. I, paragraph 2. 1 (3) :–\n<\/p>\n
    “The question has arisen whether money can be taken\t  by
\neminent domain\tand it has been held or\t intimated, at least
\nin so far as a state or. a private corporation is concerned,
\nthat  it is not subject to such taking.\t  The  objection  is
\nnot  based on an implied inherent limitation upon the  power
\nof  government,\t  but upon  the difficulty  of\teffecting  a
\ntaking\tof money that would be of any service to the  public
\nwithout\t violating  the Constitution.  The use for which  it
\nwas  needed might well be public. but, as compensation\tmust
\nbe paid in money, and, if not in advance, at least with such
\nexpedition as conveniently may be had, the seizure of  money
\nwithout compensation, or with an offer of payment in  notes,
\nbonds  or  merchandise,–in other words, a  forced  sale  or
\nloan–however it might be justified by dire necessity  would
\nnot  be\t a constitutional exercise of the power\t of  eminent
\ndomain.”\n<\/p>\n
    The\t learned  Attorney-General sought  to  justify\tthis
\nacquisition on the ground that it was a compulsory taking of
\nchoses\tin action.  Even so, they stand on the same  footing
\nas  money, of less value no doubt than if they were coin  or
\ncurrency  notes.  It seems that choses in action too  cannot
\nbe so acquired; reference has been made already to  Cooley’s
\nobservations.\n<\/p>\n
    The two cases Long Island Water Supply Company v.\tCity
\nof  Brooklyn  (1) and City of Cincinnati  v.’  Louisville  &
\nNashville  Railroad Company(2) do not support  the  contrary
\nview. In the former ease,
\n(1) 166 U.S. 685 ; 41 I.. Ed. pp. 1, 165.\n<\/p>\n
(2) 223 U.S. 389; 56 L. Ed. 481.\n<\/p>\n
1017<\/span><\/p>\n
a Water Supply Company was under a contract to supply  water
\nto the town of New Lots (which subsequently became merged in
\nthe  city of Brooklyn) in consideration\t   the\ttown  paying
\nfor hydrants to be furnished and supplied as provided in the
\ncontract.  The contract was for a term of 25 years. When the
\nmerger\ttook place, the city of Brooklyn was given power  to
\npurchase or to condemn the property of the company within  2
\nyears  but it did neither.  In 1892, the legislature  passed
\nanother Act authorising the City of Brooklyn to condemn\t the
\nproperty of the company, provided the necessary\t proceedings
\nwere commenced within one year after the passing of the Act.
\nThe procedure for the acquisition was prescribed in the\t Act
\nitself.\t The power was exercised by the city and the compen-
\nsation\tpayable\t was determined by the\tCommissioners  at  a
\nparticular figure.  The company objected to the\t acquisition
\non  the\t strength of article 1, Paragraph 10,  of  the\tU.S.
\nConstitution which forbids any\tState  to pass a law impair-
\ning the obligation of  contracts and was not “due process of
\nlaw”  as required’ by the  14th\t Amendment.  On\t error,\t the
\nSupreme Court confirmed the  condemnation  and rejected\t the
\nargument that there was any impairment of the contract.\t Mr.
\nJustice Brewer points out that the contract is a mere  inci-
\ndent  to  the tangible property and that it  is\t the  latter
\nwhich,\tbeing  fitted for public uses,\tis  condemned.\t The
\ncontract  is not the thing which is sought to  be  condemned
\nand its impairment, if impairment there be, is a mere conse-
\nquence\tof the appropriation of the tangible  property.\t  In
\nthe present cases, it is untenable to state that the  taking
\nover  of  arrears of rent is a natural\tconsequence  of\t the
\nacquisition of the estates.\n<\/p>\n
    In\tthe latter case, a railroad company filed a suit  to
\ncondemn a right of way for an elevated railroad track across
\nthe public landing at Cincinnati.  The city objected on\t the
\nground that the public landing had become property dedicated
\nto  the\t public under an earlier contract and to  allow\t the
\ncondemnation under a
\n131<\/span>
\n1018<\/span>
\nstatute of Ohio was an impairment of the contract, forbidden
\nby  the 10th section of\t the first article of the  Constitu-
\ntion  of the United States.  The court through\tMr.  Justice
\nLurton\theld: The constitutional inhibition upon  any  state
\nlaw  impairing the obligation of contracts is not a  limita-
\ntion  upon the power of eminent domain. The obligation of  a
\ncontract is not impaired when it is appropriated to a public
\nuse  and  compensation made therefor. Such  an\texertion  of
\npower neither challenges its validity nor impairs its  obli-
\ngation.\t Both  are recognised for it is appropriated  as  an
\nexisting  enforceable contract. It is a taking, not  an\t im-
\npairment  of  its obligation.  If compensation be  made,  no
\nconstitutional right is violated.”\n<\/p>\n
    It would thus be evident that they were not cases of the
\ncompulsory acquisition of choses in action. Choses in action
\nunrelated  to  any  tangible property can be  useful  for  a
\npublic\tpurpose only when converted into money.\t Arrears  of
\nmoney  are particularly so.  When it is said that money\t and
\nchoses in action are exempt from compulsory acquisition,  it
\nis  not on the ground that they are movable property but  on
\nthe ground that generally speaking there could be no  public
\npurpose in their acquisition.\n<\/p>\n
    The\t provisions in section 23, sub-clause (f) that 4  to
\n12  1\/2 per cent. of the gross assets can be  deducted\tfrom
\nthe amount as representing “cost of works of benefit to\t the
\nraiyats”.   This  is an obvious device to reduce  the  gross
\nassets and bring it down to as low a level as possible.\t The
\nAct  does not say that this charge represents the   expendi-
\nture  on works of benefit, or improvements which the  zamin-
\ndars  and  proprietors were under any  legal  obligation  to
\ncarry  out and which they failed to discharge.\tNor  are  we
\ntold anything about the future destination of this  deducted
\nsum.   It is an arbitrary figure which the  legislature\t has
\nsaid must be deducted from the gross assets.  The  deduction
\nis a mere contrivance to reduce the compensation and it is a
\ncolourable  or fraudulent exercise of legislative  power  to
\nsubtract  a  fanciful  sum  from the  calculation  of  gross
\nassets.\n<\/p>\n
1019<\/span><\/p>\n
    Stripped of their veils or vestments, the provisions  in
\nthe  act about “arrears of rent” and the “cost of  works  of
\nbenefit” amount to naked confiscation. Where the legislative
\naction\tis arbitrary in the sense that it has no  reasonable
\nrelation to the purpose in view, there is a transgression by
\nthe  legislature  of the limits of its\tpower.\t Under.\t the
\nguise of legislating for acquisition, the legislature cannot
\nenable the State to perpetrate confiscation; and if it\tdoes
\nso,  the Act to that extent has to be  declared\t unconstitu-
\ntional and void.  If the part that is void is so  inextrica-
\nbly  interwoven into the texture of the rest, the whole\t Act
\nhas to be struck down.\tSuch, however, is not the case here.
\n    It is gratifying to note that the Madhya Pradesh  Aboli-
\ntion of Proprietory Rights Act of 1950 and the Uttar Pradesh
\nZamindari  Abolition and Land Reforms Act of 1950 which\t are
\nalso  in question are free from this blemish of reaching  at
\narrears\t of rent due for any period anterior to the date  of
\nvesting.\n<\/p>\n
Appeals allowed: Petition No. 612 dismissed.
\nAgent for the appellant (State of Bihar): P. A Mehta.
\nAgent for the respondents in Cases Nos. 339,319,327,330,332
\n\t\t\t\t   of  1951:  J.N.Shroff.   ”\n<\/p>\n
\"\t\t\t in Cases Nos. 309, 326, 328,  336,\n\t\t\t\t 337,344 of 1951 Ganpat Rai\n  \"\t       \"\t  in Cases Nos. 310, 311, and 329 of\n\t\t\t\tof 1951 : R.C. Prasad.\n  \"\t       \"\t  in Case No. 315 of 1951 :\n\t\t\t\t  P.K.Chattargy\n  \"\t       \"\t  in Cases Nos. 307,313,320,321,\n\t\t\t     and   322\tof   1951:   Sukumar\nGhose.\n  \"\t       \"\t  in Case No. 331 of 1951: S.P.Varma\n<\/pre>\n
    Agent  for the petitioner in Petition No. 612  of  1951:
\nGanpat Rai.\n<\/p>\n
    Agent for respondent No. 2 in Petition No. 612 of  1951:
\nP.A. Mehta.\n<\/p>\n
1020<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The State Of Bihar vs Maharajadhiraja Sir Kameshwar … on 27 May, 1952 Equivalent citations: 1975 AIR 1083 Author: A Gupta Bench: Gupta, A.C. 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 […]<\/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":[30],"tags":[],"class_list":["post-27591","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe State Of Bihar vs Maharajadhiraja Sir Kameshwar ... on 27 May, 1952 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-state-of-bihar-vs-maharajadhiraja-sir-kameshwar-on-27-may-1952\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The State Of Bihar vs Maharajadhiraja Sir Kameshwar ... on 27 May, 1952 - 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