Union of India Vs. The Metal
Corporation Of India Ltd. & ANR [1966] INSC 154 (5 September 1966)
05/09/1966 RAO, K. SUBBA (CJ) RAO, K. SUBBA
(CJ) SHELAT, J.M.
CITATION: 1967 AIR 637 1967 SCR (1) 255
CITATOR INFO :
R 1968 SC1138 (60) O 1969 SC 634 (1,18,30,49,50)
RF 1970 SC 564 (97,202) RF 1973 SC1461 (601,709,1175,1756,1979,1980,2 E&R
1978 SC 215 (15) RF 1979 SC 248 (10,13,14) RF 1980 SC1955 (29) RF 1986 SC 468
(28,30)
ACT:
Constitution of India, 1950, Art. 31(2)-Law
for compulsory acquisition laying down Principles of compensation-Test for
constitutional validity-Metal Corporation of India (Acquisition of Undertaking)
Act (44 of 1965)-If ultra vires.
HEADNOTE:
The Metal Corporation of India (Acquisition
of Undertaking) Act, 1965, was enacted for acquiring in the public interest,
the undertaking of the Metal Corporation of India. The Act provided that the
Corp-oration was to vest in the Central Government on the commencement of the
Act; and that in the absence of an agreement between the Government and the
Corporation, the compensation payable to the Corporation was to be an amount
equal to the sum total of the value of the properties and assets of the
Corporation on the date of the commencement of the Act calculated in accordance
with the provisions of Paragraph 11 of the Schedule to the Act, less the
liabilities on -the said date, calculated in accordance with the provisions of
Paragraph III of the Schedule. One of the clauses laying down principles of
compensation, viz., clause (b) of para 11 is in two parts. The first part
provides for the valuation of plant, machinery or other equipment which has not
been worked or used and is in good condition, and the second part provides for
the valuation of any other plant, machinery or equipment. The former have to be
valued at the actual curt incurred by the Corporation in acquiring them 'and
the latter, at the written down value determined in accordance with the
provisions of the Income- of the constitutional validity of the Act.
HELD : The Act contravened Art. 31(2) of the
Constitution and was therefore void. [265 C] Under Art. 31(2), no property
shaft be compulsorily acquired except under -a law which provides for
compensation and either fixes the amount of compensation or specifies the
principles on which and the manner in which the compensation is to be
determined and given. If the compensation is illusory or if the principles
prescribed are irrelevant to the value of the property at or about the time of
its acquisition, the law is bad. The law, to justify itself, has to provide for
the payment of a "just equivalent" to the property acquired, or lay
down principles which are not arbitrary but which are relevant to the fixation
of compensation. It is only when the principles stand this test, that the
adequacy of the resultant compensation falls outside judicial scrutiny under
the second limb of Art.
31(2). In the instant case, the two
principles laid down in cl. (b) of Para 11 of the Schedule are irrelevant to
the fixation of the value of the machinery as on the date of acquisition. In
the case of unused machinery, if it was Purchased in 1950 for Rs. 100 and, for
some reason, had not been used in the working of the Undertaking but had been
maintained in good condition, it may cost Rs. 1000 in 1965.
A compensation of Rs. 100 for that machinery
could not be said to be -a "just equivalent" of it. Similarly, in the
case of used machinery, if it was purchased in 1950 for Rs. 1000, 256 the
aggregate of all the depreciation allowances made year after year may exhaust the
sum of Rs. 1000 in ten years, with the result that, under the Income-tax Act,
the assessee will not be entitled to any depreciation after the tenth year. It
could not, however, be said that after the tenth year, the machinery had no
value and that the owner was not to be given any compensation. Indeed, such a
machinery, because of subsequent rise in prices, may be sold in 1965 for Rs.
10,000. Further the constitutional invalidity of cl. (b) of Para II of the
Schedule affect& -the totality of the compensation payable; for, machinery
is the major part of the undertaking, the entire Undertaking is acquired as a
unit, and, in the context of compensation for the entire Undertaking, the
clauses of Para H of the Schedule to the Act are not severable. Therefore, the
mere fact that in regard to some parts of the Undertaking, the principles laid
down in Para H provide for compensation does no affect the question, especially
when it has not been shown that the working out of any one or more of the
principles would give a higher compensation to some parts of the Undertaking so
that the excess paid under one head would offset the deficiency under another
head. [261 F-H; 262 B; 264 B-C, F- H; 265 A-El Vajravelu v. Special Deputy
Collector, [1965] 1 S.C.R. 614 and Jeejeebhoy v. Assistant Collector, [1965] 1
S.C.R. 636, followed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1222 of 1966.
Appeal from the judgment and order dated
March 14 1966 Appeal of the Punjab High Court (Circuit Bench), at Delhi in
Civil Writ No. 832-D of 1965.
S. V. Gupte, Solicitor-General, N. S. Bindra,
R. H. Dhebar and B. R. G. K. Achar, for the appellant.
M. C. Setalvad, B. C. Dutt, Santosh
Chatterjee, B. Partha- sarathy, 0. C. Mathur, and Ravinder Narain, for
respondent No. 1.
B. C. Dutt, Santosh Chatterjee, Anand
Prakash, 0. C.
Mathur -and Ravinder Narain, for respondent
No. 2.
The Judgment of the Court was delivered by
Subba Rao, C. J. This appeal by certificate raises the question of the
constitutional validity of the Metal Corporation of India ,(Acquisition of
Undertaking) Act (No.
XLIV of 1965), hereinafter called the Act.
The relevant facts lie in a small compass.
The 1st respondent, The Metal Corporation of India Limited, hereinafter called
the ,Corporation, was a limited company constituted under the Indian Companies
Act, having for its objects, inter alia, the development of zinc and lead mines
at Zawar in the State of Rajasthan and the construction of a zinc smelter and
other connected works for producing electrolytic zinc and by-products. The
Government was ,satisfied that it was necessary to acquire the said Corporation
in public interest and on October 22, 1965, the President of India 257
promulgated an Ordinance (No. 6 of 1965) providing for the acquisition of the
Corporation by the Central Government.
Pursuant to the said Ordinance, on or about
October 23, 1965, the Central Government took over the possession, control and
administration of the said Corporation. The Corporation, the 1st respondent and
its Managing Director, the 2nd respondent filed a Writ Petition under Art. 226
of the Constitution in the High Court of Judicature for the State of Punjab,
Circuit Bench at New Delhi, being Petition No. 631-D of 1965, challenging the
validity of the said Ordinance. In the meantime, the Parliament passed the Act
on the same terms as contained in Ordinance No. 6 of 1965:
it received the assent of the President of
India on December 12, 1965. The respondent filed another writ petition in the
said High Court, being Writ Petition No. 832-D of 1965, for a declaration that
the Act was ultra vires the Constitution.
The said High Court held that the Ordinance
and the Act contravened the relevant provisions of Art. 31 of the Constitution
and, therefore, were constitutionally void.
The present appeal is preferred against the
said judgment of the High Court.
It will be convenient at this stage to read
the relevant provisions of the Act. The preamble and the relevant provisions of
the Act read:
"Preamble.
An Act to provide for the acquisition of the
undertaking of the Metal Corporation of India Limited for the purpose of
enabling the Central Government in the public interest to exploit, to the
fullest extent possible, zinc and lead deposits in and around the Zawar area in
the State of Rajasthan and to utilise those minerals in such manner as to sub
serve the common good Section 3. On the commencement of this Act, the
undertaking of the company shall, by virtue of this Act, be transferred to, and
vest in, the Central Government.
Section 10. (1) The Central Government shall
pay compensation to the company for the acquisition of the undertaking of the
company and such compensation shall be determined in accordance with the
principles specified in the Schedule and in the manner hereinafter set out, that
is to say, (2) Notwithstanding that separate valuations are calculated under
the principles specified in the Schedule in respect of the several matters
referred to therein, the 258 amount of compensation to be given shall be deemed
to be a single compensation to be given for the undertaking as a whole.
(3) THE SCHEDULE Principles for determining
compensation for acquisition of the undertaking.
Paragraph I.-The compensation to be paid by
the Central Government to the company in respect of the acquisition of the
undertaking thereof shall be an amount equal to the sum total of the value of
the properties and assets of the company on the date of commencement of this
Act calculated in accordance with the provisions of paragraph II less the sum
total of the liabilities and obligations of the company as on the said date
calculated in accordance with the provisions of paragraph 111.
Paragraph II.-(a) The market value of any
land or buildings;
(b) the actual cost incurred by the company
in acquiring any plant, machinery or other equipment which has not been worked
or used and is in good condition and the written-down value (determined in
accordance with the provisions of the Income-tax Act, 1961 (XLIII of 1961), of
any other plant, machinery or equipment;
(c) the market value of any shares,
securities or other investments held by the company;
(d) the total amount of the premium paid by
the company in respect of all leasehold properties reduced in the case of each
such premium by an amount which bears to such premium the same proportion as
the expired term of the lease in respect of which such premium shall have been
paid bears to the total term of the lease;
(e) the amount of debts due to the company,
whether secured or unsecured, to the extent to which they are reasonably
considered to be recoverable.
(f) the amount of cash held by the company,
whether in deposit with a bank or otherwise;
(g) the value of all tangible assets and
properties other than those failing within any of the preceding clauses.
Paragraph III.-The total amount of
liabilities and obligations incurred by the company in connection with 259 the
formation, management and administration of the undertaking and subsisting
immediately before the commencement of this Act." The gist of the said provisions
may be given thus. The Act was made to acquire in public interest the
undertaking of the Corporation, On the commencement of the Act, the undertaking
was transferred and vested in the Central Government. Under s. 10 of the Act,
the Government shall pay compensation to the undertaking as a whole: but, in
the absence of an agreement between the Government and the Corporation, the
compensation payable to the Corporation has to be ascertained under the
principles specified in the Schedule in respect of the several matters referred
to therein. Paragraph 1 of the Schedule lays down the manner in which the
compensation to be paid to the Corporation for the acquisition of the
undertaking is to be ascertained.
The said compensation shall be an amount
equal to the sum total of the value of the properties and assets of the
Corporation on the date of the commencement of the Act calculated in accordance
with the provisions of paragraph It less the liabilities on the said date
calculated in accordance with the provisions of paragraph III of the Schedule.
Broadly, the said paragraph lays down the principles for ascertaining the value
of lands, buildings, machinery and equipment, amounts due to the undertaking
and other tangible assets and properties. The different clauses of the
paragraph adopt different principles for valuation.
But what is important for the present purpose
is the principle embodied in cl. (b) of para II. It is in two parts: the first
provides for the valuation of plant, machinery or other equipment which has not
been worked or used and is in good condition, and the second provides for the
valuation of any other plant, machinery or equipment.
The former has to be valued at the actual
cost incurred by the Corporation in -acquiring the same and the latter at the written
down value determined in accordance with the provisions of the Indian
Income-tax Act, 1961.
The High Court held, on a construction of the
said provisions, that the principle contained in cl. (b) of paragraph 11 of the
Schedule to the Act in respect of machinery etc. "cannot be called
relevant to the determination of 'just equivalent', as it takes no notice of
the notorious fact that prices have been steadily rising during the past
several years, particularly of imported machinery and plant". It also
held, "that depreciation rule does not even pretend to determine the
actual depreciation in a particular case and it is obvious that such
depreciation has no real relationship with the actual value of any machinery at
any particular point of time". On that reasoning, it came to the
conclusion, having regard to the decision of this Court in Vajravelu v. Special
Deputy Collector(1) that the said provision in respect of machinery did.
(1) [1965] 1 S.C.R. 614.
260 not lay down a principle for fixing
compensation i. e., a just equivalent to the machinery acquired.
The reasoning of the High Court was attacked
by the learned Additional Solicitor-General on the ground that it did not
appreciate the true scope of the said decision of this Court and that, in any
view, it went wrong in applying the principle of the said decision to the
provisions of the Act.
He contended that the Act laid down the broad
principle that compensation shall be paid for the entire undertaking as a unit,
but provided different modes for the ascertainment of the value of different
parts thereof in such a way that the deficiency in the valuation of one part
was offset by the liberal valuation of the other part. In that view, he
contended, the Act embodied a principle relevant to the ascertainment of
compensation for the undertaking acquired and, therefore, the product worked
out under the said principle pertained only to the realm ,of adequacy which was
beyond the ken of judicial review. He added that compensation in Art. 31 of the
Constitution meant that compensation which was regarded as just in the context
of public acquisitions and that test was satisfied in the present case.
Mr. M. C. Setalvad, learned counsel for the
respondents, contended that though under the Act compensation was to be given
to the undertaking as one unit, the Act laid down principles for arriving at
the valuation of the parts to arrive at the valuation of the whole and that,
therefore, every such principle should stand the test laid down by this Court.
So judged, the argument proceeded, both the principles laid down in cl. (b) of
para 11 of the Schedule had no nexus to the ascertainment of compensation for
the machinery acquired, for in the case of unused machinery, its cost price was
the guide and in the case of used machinery its written-down value was the
criterion and that both the methods were arbitrary.
We find it difficult to appreciate the
arguments of the learned Solicitor-General. It is true that under s. 10 of the
Act the Central ,Government shall pay compensation for the acquisition of the
undertaking to the Corporation and the said compensation arrived at in the
manner prescribed in the Schedule to the Act shall be ,deemed to be a single
compensation to be given to the undertaking as a whole. But it will be noticed
that though a single compensation for the undertaking is given, the said
compensation shall be deter- mined in accordance with the principles specified
in the Schedule. Under the Schedule, the compensation for the entire undertaking
shall be the amount equal to the sum total of the value of the properties and
assets of the Corporation calculated in accordance with the provisions of para
II of the Schedule. Under the said para 11, different principles are laid down
for ascertaining the value of different parts of the undertaking. If all the
said principles laid ,down in para 11 of the Schedule do not provide for the
just equivalent 261 of all the parts of the undertaking mentioned therein, the
sum total also cannot obviously be a just equivalent of the undertaking. So
too, if some of them do not provide for a just equivalent and others do so, the
sum total cannot equally be a just equivalent to the undertaking. In the case
of the undertaking in question, the machinery is the most valuable part of the
undertaking. Apropos the unused machinery in good condition, how can the price
for which the said machinery was purchased years ago possibly represent its
price at the time of its acquisition? A simple illustration will disclose the
irrelevance of the principle.
Suppose in 1950 a machinery was purchased for
Rs. 100 and, for some reasons, the same has not been used in the working of the
undertaking but has been maintained in good condition. That machinery has not
become obsolescent and still can be used effectively. If purchased in open
market it will cost the owner Rs. 1,000. A compensation of Rs. 100 for that
machinery cannot be said to be a just equivalent of it. It is common knowledge
that there has been an upward spiral in prices of the machinery in recent
years. The cost price of a machinery purchased about ten years ago is a
consideration not relevant for fixing compensation for its acquisition in 1965.
The principle must be such as to enable the ascertainment of its price at or
about the time of its acquisition. Nor the doctrine of written-down value
accepted in the Income-tax law can afford any guide for ascertaining the
compensation for the used machinery acquired under the Act. Under the general
scheme of the Income-tax Act, the income is to be charged regardless of the
diminution in the value of the capital. But the rigor of this hard principle is
mitigated by the Act granting allowances in respect of depreciation in the
value of certain assets such as machinery, buildings, plant, furniture etc.
These allowances are worked out on a notional basis for giving relief to the
income-tax assessee.
This artificial rule of depreciation evolved
for income-tax purposes has no relation to the value of the said assets.
To illustrate: a machinery was purchased in
the year 1950 for Rs. 1,000. The aggregate of all the depreciation allowances
made year after year for ten years may exhaust the sum of Rs. 1,000 with the
result, after the tenth year, the assessee will not be entitled to any
depreciation. From this it cannot be said that after the tenth year the
machinery has no value. Indeed, a machinery purchased for Rs, 1,000 in 1950,
because of subsequent rise in. prices may be sold in 1965 for Rs. 10,000. But
the application of the principle laid down in cl. (b) of para 11 of the
Schedule to the Act in regard to used machinery gives the owner no compensation
at all. Yet, the Government takes the machinery worth Rs. 10,000 gratis. This
illustration exposes the extreme arbitrariness of the principle. It is,
therefore, manifest that the two principles of valuation embodied in cl. (b) of
para II of the Schedule to the Act are not relevant to the fixing of
compensation for the machinery at. the time of its acquisition under the Act.
The argument, of the 262 learned Additional
Solicitor-General that the working out of all the principles in respect of
different parts of the undertaking would result in a product which would fairly
represent, in the context of public acquisitions, the "just equivalent"
to the undertaking acquired is purely based on a surmise for, it is not shown
that the working out of any one or more of the principles would give a higher
compensation to some parts of the undertaking so that the excess paid under one
head would offset the deficiency under another head. Nor can the doctrine of
inherent worth of a machinery has any relevance in the matter of giving
compensation for its acquisition at a particular point of time, for the simple
reason that the worth of an article depends upon the market conditions
obtaining at the time of its acquisition.
It is impossible to predicate, irrespective
of such conditions, that a particular machinery has a fixed value.
for all times.
Four decisions of this Court laid down the
principles applicable to the present case. Indeed, but for the said decisions,
we would have posted this case before a Constitution Bench of five Judges. But,
as this appeal involves only the application of the construction put upon Art.
31 of the Constitution by this Court in the said decisions, we did not resort
to that course. The first of them is The State of West Bengal v. Mrs. Bela
Banerjee (1).
There, the validity of the West Bengal Land
Development and Planning Act, 1948 was under scrutiny. Section 8 thereof
provided that compensation to be awarded for compulsory acquisition to owners
of land was not to exceed the market value as on December 31, 1946. This Court
held that the said Act was ultra vires the Constitution and void under Art.
32(2) thereof. In that context, Patanjali Sastri, C.J., observed:
"Turning now to the provisions relating
to compensation under the impugned Act, it will be seen that the latter part of
the proviso to section 8 limits the amount of compensation so as not to exceed
the market value of the land on December 31, 1946, no matter when the land is
acquired. Considering that the impugned Act is a permanent enactment and lands
may be acquired under it many years after it came into force, the fixing of the
market value on December 31, 1946, as -the ceiling on compensation, without
reference. to the value of the land at the time of the acquisition is arbitrary
and cannot be regarded as due compliance in letter and spirit with the
requirement of article 31(2)." The above decision was followed by this
Court in State of Madras v. D. Namasivaya Mudaliar(2). There the respondents
were owners of certain lands which were to be compulsorily acquired under (1)
[1954] S.C.R. 558, 564.
(2) [1964] 6 S.C.R. 936, 945 2 63 Madras
Lignite (Acquisition of Land) Act, 1953. The Act came into force on August 20,
1953, before Art. 31 of the Constitution was amended by the Constitution
(Fourth Amendment) Act, 1955. By the said Act compensation for the acquisition
of lignite-bearing bands under the Land Acquisition Act was to be assessed on
the market value of the land prevailing on August 28, 1947, and not on the date
on which the notification was issued under s. 4(1) of the -and Acquisition Act.
It also provided that in awarding compensation, the value of non-agricultural
improvements commenced since April 28, 1.947 would not be taken into
consideration. This Court held that the said Act was bad, because it
contravened Art. 31(2) of the Constitution, as it stood before the Constitution
(Fourth Amendment) Act, 1955.
This Court, speaking through Shah, J.,
observed:
"Assuming that in appropriate cases,
fixation of a date anterior to the publication of the notification under s.
4(1) for ascertainment of market value of the land to be acquired, may not
always be regarded as a violation of the constitutional guarantee, in the
absence of evidence that compensation assessed on the basis of market value on
such anterior date, awards to the expropriated owner a just monetary value of
his property at the date on which his interest is extinguished, the provisions
of the Act arbitrarily fixing compensation based on the market value at a date
many years before the notification under s. 4(1) was issued, cannot be regarded
as valid." Then the learned Judge proceeded to state:
"To deny to the owner of the land
compensation at rates which justly indemnify him for his loss by awarding him
compensation at rates prevailing ten years before the date on which the
notification under s. 4(1) was issued amounts in the circumstances to a
flagrant infringement of the fundamental right of the owner of the land under
Art. 31(2) as it stood when the Act was enacted." These two decisions
turned upon the construction of Art.
31(2) of the Constitution before the
Constitution (Fourth Amendment) Act, 1955. These cases laid down two
propositions: (1) "Compensation" under Art. 31(2) of the Constitution
means a "just equivalent" of what the owner has been deprived of ;
and (2) the value of land at an anterior date is presumed to be no compensation
within the meaning of the said Article. After the Constitution (Fourth
Amendment) Act, 1955, this Court had to construe in two decisions he amended
provision of Art. 31(2) vis-a-vis the expression "compensation" found
therein. The first decision is that in Vajravelu 264 v. Special Deputy
Collector(1). There, this Court observed at p. 625-626:
"A scrutiny of the amended Article
discloses that it accepted the meaning of the expressions
"compensation" and "principles" as defined by this Court in
Mrs. Bela Banerjee's case(2)." .lm0 And it held that, if the compensation
is illusory or if the principles prescribed are irrelevant to the value of the
property at or about the time of its acquisition, it can be said that the
Legislature committed a fraud on power and, therefore, the law is bad. One of
the illustrations given at p. 627 is relevant to the present enquiry and that
is as follows :
if a law lays down principles which are not
relevant' to the property acquired or to the value of the property at or about
the time it is acquired, it may be said that they are not principles
contemplated by Art. 31(2) of the Constitution. If a law says............ that
though it (house) is acquired in 1960 its value in 1930 should be given.......
the principles do not pertain to the domain of adequacy but are principles
unconnected to the value of the property acquired." Applying these
principles, this Court in Jeejeebhoy v. Assistant Collector(3), held that the
fixation of an anterior date for the ascertainment of the value of the property
acquired without reference to any relevant considerations which necessitated
the fixing of an earlier date for the purpose of ascertaining the real value is
arbitrary. On that ground this Court held that the Land Acquisition (Bombay
Amendment) Act, 1948, did not provide for payment of just equivalent of what
the owner was deprived of, as it provided for the ascertainment of compensation
on the basis of the value of lands acquired as on January 1, 1948 and not as on
the date on which the s. 4 notification under the 1894 Act was issued.
The relevant aspect of the legal position
evolved by the said decisions may be stated thus: Under Art. 31(2) of the
Constitution, no property shall be compulsorily acquired except under a law
which provides for compensation for the property acquired and either fixes the
amount of compensation or specifies the principles on which and the manner in
which compensation is to be determined and given.
The second limb of the provision says that no
such law shall be called in question in any court on the ground that the
compensation provided by the law is not adequate. If the two concepts, namely,
"compensation" and the jurisdiction of the court are kept apart, the
meaning of the provisions is clear. The law to (1)[1965] 1 S.C.R. 614.
(2) [1954] S.C.R. 558.
(3) [1965] 1 S.C.R. 63 6.
265 justify itself has to provide for the
payment of a "just equivalent" to the land acquired or lay down
principles which will lead to that result. If the principles laid down are
relevant to the fixation of compensation and are not arbitrary, the adequacy of
the resultant product cannot be questioned in a court of law. The validity of
the principles, judged by the above tests, falls within judicial scrutiny, and
if they stand the tests, the adequacy of the product falls outside its
jurisdiction. Judged by the said tests, it is manifest that the two principles
laid down in cl. (b) of Para 11 of the Schedule to the Act, namely, (i)
compensation equated to the cost price in the case of unused machinery in good
condition, and (ii) written-down value as understood in the Income-tax law as
the value of used machinery, are irrelevant to the fixation of the value of the
said machinery as on the date of acquisition. It follows that the impugned Act
has not provided for "compensation" within the meaning of Art. 31(2)
of the Constitution and, therefore, it is void.
The mere fact that in regard to some parts of
the undertakings the principles provide for compensation does not affect the
real question, for, machinery is the major part of the undertaking and,, as the
entire undertaking is acquired as a unit, the constitutional invalidity of cl.
(b) of Para 11 of the Schedule to the Act affects the totality of the
compensation payable to the entire undertaking. In the context of compensation
for the entire undertaking, the clauses of Para 11 of the Schedule to the Act
are not severable. In the result, the Act, not having provided for
compensation, is unconstitutional and the conclusion arrived at by the High
Court is, correct.
The. appeal fails and is dismissed with
costs.
V.P.S.
Appeal dismissed.
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