RAJA SURIYA PAL SINGH V. THE STATE OF
U.P. & ANR  INSC 37 (27 May 1952)
BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.
CITATION: 1975 AIR 1083
Uttar Pradesh Zamindari Abolition and Land
Reforms Act (I of 1951)--Law for abolition of zamindaries and intermediate
tenures--Validity--Provision for compensation and public purpose --Necessity
of--Right of eminent domain--Jurisdiction of Court to enquire into validity of
Act--Constitution of India, 1950-Constitution (First Amendment) Act. 1951, Arts
31, 31-A, 31-B, 362; Sch. VII, List II, entries 18, 36, List III, entry
42'Delegation of legislative powers--Fraud on the Constitution--Spirit of the
Constitution--Meanings of "public purpose", "law", "legislature"-Compulsory
acquisition of Crown grants, charities and private property of Rulers under
covenant of merger----Legality.
Held by the Full Court (PATANJALI SASTRI
C.J., MAHAJAN, MUKHERJEA, DAS and CHANDRASEKHARA AIYAR JJ.).--The Uttar Pradesh
Zamindari Abolition and Land Reforms Act, 1950, is valid in its entirety. The
jurisdiction of the court to question its validity on the ground that it does
not provide for payment of compensation is barred by arts. 31(4), 31-A and 31-B
of the Constitution. The said Act is not a fraud on the Constitution; it does
not delegate essential legislative power to the executive; and is not liable to
be impugned on the ground of absence of a public purpose.
Per MAHAJAN J.--(i) The expression
"public purpose" is not capable of a precise definition and has not a
rigid meaning. It can only be defined by a process of judicial inclusion and
exclusion. The definition of the expression is elastic and takes its colour
from the statute in which it occurs, the concept varying with the time and the
state of society and its needs. The point to be determined in each case is
whether it is in the interest of the community as distinguished from the
private interest of an individual.
(ii) There is nothing in law to prevent the
subject-matter of a Crown grant being compulsorily acquired for a public
purpose and land held by the taluqdars of Oudh does not therefore stand on a
higher footing than that of other owners of Oudh.
(iii) Property dedicated to charity by a
private individual is not immune from the sovereign's power to compulsorily
acquire property for a public purpose.
1057 (iv) Recourse cannot be had to the
spirit of the Constitution when its provisions are explicit; and when the fundamental
law has not limited either in terms or by necessary implication the general
powers conferred on the legislature it is not proper to deduce a limitation
from something supposed to be inherent in the spirit of the Constitution.
(v) The provisions of art. 31(2) do not stand
revealed by art. 31-A. On the other hand the proviso to art. 31 -A keeps them
alive. The only difference is that with regard to estates the President. has
been constituted the sole judge for deciding whether a State law has complied
with art. 3 1(2).
(vi) When a whole estate is being acquired
and payment of compensation is based on the net income of the whole estate, it
cannot be said that the legislation is of a confiscatory character merely
because there are non-income fetching properties also in the estate.
DAS J.--(i)The existence of a public purpose
and the necessity for payment of compensation cannot be said to be an inherent
part of the spirit of any particular form of Government. The Indian
Constitution has in art. 31 (2) recognised these two elements as a pre-requisite
to the exercise of the power of eminent domain, and as the impugned Act has
been expressly taken out of the operation of those provisions, the question of
invoking any imaginary spirit of the Constitution cannot be entertained. The
invocation of such an imaginary spirit will run counter to the express letter
of arts. 31(4), 31-A and 31-B. (ii) The claim of the Rulers with regard to
their private properties is not within art. 862; by offering compensation their
ownership is recognised; in any event, art. 362 imposes no legal obligation on
the Parliament or State Legislature, and art. 363 bars the jurisdiction of the
court with respect to disputes arising out of covenants of merger.
CIVIL APPELLATE JURISDICTION. Cases Nos. 283
to 295 of 1951.
Appeals under article 132 (1) of the
Constitution of India from the judgment and decree dated 10th May, 1951, of the
High Court of Judicature at Allahabad (Malik C.J., Mootham, Chandiramani,
Agarwala and Bhargava J.J.) in Writ Applications Nos. 23, 25, 3330, 3329, 3331
and 3332 of 1951 and Miscellaneous Judicial Cases Nos. 1 and 2 of 1951 and
Civil Miscellaneous Nos. 335, 340, 345 of 1951 (Lucknow Bench) and from the
judgment and order dated 9th July, 1951, of Sapru and Agarwala J.J in Writ
Application No. 3403 of 1951.
136 1058 The facts that gave rise to these
appeals and petitions are stated in the judgment.
P.R. Das and S.K. Dar (B. Sen and Nanakchand,
with them) for the appellants in Cases Nos. 283 to 286, 289 and 290 of 1951.
B.R. Ambedkar and Bishan Singh for the
appellants in Cases Nos. 285 and 288 of 1951.
N.P. Asthana and (K. B. Asthana, with him)
for the appellants in Cases Nos. 291 to 294 of 1951.
Prem Mohan Varma for the appellants in Case
No. 295 of 1951.
M.C. Setalvad, Attorney-General for India, and
Kanhaiya Lal Misra (Gopalji Mehrotra and Lakshmi Saran, with them) for the
1951. May 2, 5. The judgment of the
CHIEFJUSTICE printed at pp. 893-916 supra covers these cases also. MAHAJAN,
MUKHERJEA, DAs and CHANDRASEKHARA AIYAR JJ. delivered separate judgments.
MAHAJAN J.--These appeals under article
132(1) of the Constitution concern the constitutionality of an Act known as the
Uttar Pradesh Zamindari Abolition and Land Reforms Act (U. P. Act I of 1951),
and can be conveniently disposed of by one judgment.
The appellants in most of them are owners and
proprietors of extensive landed properties in the State of Uttar Pradesh. Some
of them are holders of estates in Oudh under taluqdari squads granted to their
ancestors by the British Government. H.H. Maharaja Paramjit Singh of
Kapurthala, appellant in Appeal No. 285 of 1951, is the holder of an estate in
Oudh, the full ownership, use and enjoyment of which was guaranteed to him by
the Government of India under article XII of the Pepsu Covenant of Merger.
291 to 295 of 1951 have been preferred by
religious institutions holding endowed properties.
On 8th August, 1946, the United Provinces.
Legislative Assembly passed the following resolution :-1059 "This Assembly
accepts the principle of the abolition of the zamindari system in this Province
which involves intermediaries between the cultivator and the State and resolves
that the rights of such intermediaries should be acquired on payment of
equitable compensation and that Government should appoint a committee t0
prepare a scheme for this purpose." A committee was appointed to give
effect to the resolution and to prepare the necessary scheme. It made its
report in July, 1948. A Bill was introduced in the United Provinces Legislative
Assembly on the 7th July, 1949, was referred to a Select Committee which made
its report on 9th January, 1950, and was read before the Assembly for the first
time on 17th January, 1950. On the 21st January, 1950, the Assembly was
prorogued. It reassembled on the 2nd February, the Bill was reintroduced on the
7th February, 1950, and was read for the second time on 28th July, 1950, and
for the third time on 4th August, 1950. On 6th September, 1950, it came before
the Legislative Council and the Council passed it with certain amendments on
the 30th November, 1950. The Legislative Assembly was prorogued on the 13th
October, 1950, and in view of the amendments made in the Legislative Council,
the Bill was reintroduced in the Legislative Assembly on 26th December, 1950,
and was passed in its amended form on 10th January, 1951. It was subsequently
passed by the Legislative Council and after having received the assent of the
President came into force on or about the 25th January, 1951.
The Preamble of the Act declares that" Whereas
it is expedient to provide for the abolition of the zamindari system which
involves intermediaries between the tiller of the soil and the State in the
Uttar Pradesh and for the acquisition of their rights, title and interest and
to reform the law relating to land tenure consequent on such abolition and
acquisition and to make provision for other matters connected therewith."
1060 Sub-section (1) of section 4 provides that as from such date as the State
Government may by notification declare, all estates situated in the Uttar
Pradesh shall vest in the State free from all encumbrances. "Estate"
is defined in section 3 (8) as meaning "the area included under one entry
in any of the registers prepared and maintained under clause (a), (b), (c) or
(d) of section 82 of the United Provinces Laud Revenue Act, 1901, or in the
registers maintained under clause (e) of the said section in so far as it
relates to a permanent tenure holder and includes share in or of an
estate." Section 6 enacts that subject to certain very minor exceptions,
upon the publication of a notification under section 4, the rights, title and
interest of all intermediaries in every estate in the area referred to in the
notification, and in all sub-soil in such estates including rights if any, in
mines and minerals, shall cease and shall be vested in the State of Uttar
Pradesh free from all encumbrances. The expression "intermediary" is
defined in section 8 (2) as meaning with reference to any estate, "a
proprietor, under-proprietor, sub-proprietor, the kadar, permanent lessee in
Avadh, and permanent tenure-holder of such estate or part thereof." The
intermediaries whose rights, title and interest are thus acquired become
entitled to receive compensation at eight times the net assets mentioned in the
Compensation Assessment Roll prepared in accordance with the provisions of the
Act. The Act further provides that the State Government shall pay to every
intermediary other than a thekadar, whose estate or estates have been acquired
under the Act, a rehabilitation grant on a graduated scale provided that the
land revenue payable by such an intermediary does not exceed Rs. 10,000. The
scale of the grant is given in Schedule I. Save in the case of wakfs, trusts
and endowments which are wholly for religious or charitable purposes, the
highest multiple is for class paying land revenue up to Rs. 25. the multiple
being twenty, while the lowest is for the class 1061 paying land revenue
exceeding Rs. 5,000, but not exceeding Rs. 10,000 when the multiple is one.
Part I of the Act includes provisions for the
vesting of all estates in the State, for assessment of compensation, for
payment of compensation to all intermediaries and of rehabilitation grant to
those of them who pay Rs. 10,000 or less as land revenue and similar matters.
Part II deals with consequential changes that become necessary by reason of the
vesting of all estates in the State and provides for the incorporation in each
village of a gaon samaj and the vesting of certain lands in the gaon samaj; it
divides the cultivators into four classes, viz, bhumidars, sirdars, asamis and
adhivasis, determines their rights and provides for the payment of land
revenue; it further contains provisions designed to prevent the fragmentation
of holdings or their division into holdings of uneconomic size, and to
facilitate the establishment of co-operative farms, and other similar matters.
The following provisions of the Act which
came in for severe criticism during the course of the arguments addressed to us
may be set out in extenso.
Section 6 (a) provides for the vesting in the
State of all rights, title and interest of all the intermediaries in every
estate in such area including land (cultivable or barren), grove land, forests
whether within or outside village boundaries, trees (other than trees in
village abadi, holding or grove), fisheries, wells (other than private wells in
village abadi, holding or grove), tanks, ponds, water channels, ferries,
pathways, abadi sites, hats, bazars and melas. Clauses (e) and (g) of this
section are in these terms :"(e) All amounts ordered to be paid by an
intermediary to the State Government under sections 27 and 28 of the U.P.
Encumbered Estates Act, 1934, and all amounts
due from him under the Land Improvement Loans Act, 1883, or the Agricultural
Loans Act, 1884, shall notwithstanding anything contained in the said
enactments, become due forthwith and may, without prejudice to any other mode
of 1062 recovery provided therefore, be realised by deducting the amount from
the compensation money payable to such intermediary under Chapter III.
(g) (i) Every mortgage with possession
existing on any estate or part of an estate on the date immediately preceding
the date of vesting shall, to the extent of the amount secured on such estate
or part, be deemed, without prejudice to the rights of the State Government
under section 4, to have been substituted by a simple mortgage;
(ii) notwithstanding anything contained in
the mortgage deed or any other argreement, the amount declared due on a simple
mortgage substituted under sub-clause (i) shall carry such rate of interest and
from such date as may be prescribed." Section 7 saves certain rights at
present held by the proprietors from the purview of the Act. The rights included
are in respect of mines which are being worked by the zamindars. Section 9
provides that private wells, trees in abadi and buildings situate within the
limits of an estate shall continue to belong to or be held by such
Section 10 makes every tenant of land
belonging to an intermediary and paying land revenue upto Rs. 250, a hereditary
tenant thereof at the rate of rent payable on the date of vesting. Section 12
gives the same privilege to thekadars.
Similarly section 15 confers the status of
hereditary tenants on occupants of lands in which such rights did not exist.
Section 18 provides that all land in the possession of intermediaries as sir,
khudkasht or an intermediary's grove shall be deemed to be settled by the State
Government with such intermediary etc., subject to the provisions of the Act
and he will be entitled to possession of it as bhumidar thereof. Land held by
any person as a tenant is deemed to be settled by the State Government on such
person as sirdar. Sections 27 and 28 are in these terms :-"27. Every
intermediary, whose rights, title or interest in any estate are acquired under
the provisions of this Act shall be entitled to receive and be paid
compensation as hereinafter provided.
28. (1). Compensation for acquisition of
estates under this Act shall be due as from the date of vesting subject to
determination of the amount thereof.
(2) There shall be paid by the State
Government on the amount so determined interest at the rate of two and half per
centum per annum from the date of vesting to the date of(i) in the case of the
amount to be paid in cash, determination, (ii) in the case of the amount to be
given in bonds, the redemption of the bonds." Section 39 lays down the
method of determination of the gross income of the land comprised in a mahal,
while section 42 provides for the determination of the gross assets of an
intermediary. Section 44 lays down the manner of assessing the net income of an
intermediary. It provides as follows :"The net assets of an intermediary
in respect of a mahal shall be computed by deducting from his gross assets the
(a) any sum which was payable by him in the
previous agricultural year to the State Government on account of land revenue
(b) an amount on account of agricultural
income tax, if any, paid for the previous agricultural year .....
(c) cost of management equal to 15 per centum
of the gross assets." Provision has been made for the appointment of
assessment officers and for the preparation of draft compensation assessment
roll by them after hearing objections. Right of appeal has also been provided
against their decision.
Chapter IV concerns itself with the payment
of compensation. Section 65 of this chapter provides that there shall be paid
to every intermediary as compensation in respect of the acquisition of his
rights, title and interest in every estate the amount declared in that behalf
under section 60.
Section 68 is in these terms ;-1064 "The
compensation payable under this Act shall be given in cash or in bonds or
partly in cash and partly in bonds as may be prescribed." Section 72
empowers the State Government to make rules on all matters which are to be and
may be prescribed. Sections 113 and 117 provide for the establishment and
incorporation of a gaon samaj and for the vesting of all lands not comprised in
any holding or grove and forests within the village boundanes, trees, public
wells, fisheries, hats, bazars etc., tanks and ponds in the gaon samaj, which
is to supervise and manage and control the lands subject to supervision by the
Government. Other provisions of the Act relate to acquisition of bhumidari
rights and of sirdari rights by tenants, thekadars etc., on payment of a
certain amount mentioned in the Act. A bhumidar has the status of a peasant
proprietor in direct relation to Government and these agrarian reforms
contemplated by the Act aim at converting the zamindari tenure system into a
The main questions for consideration in these
appeals are the following :-
1. Whether the impugned Act was validly
2. Whether the acquisition of properties contemplated
by the Act is for a public purpose.
3. Whether the delegation of power in the
various sections of the Act is within the permissible limits.
4. Whether the taluqdari properties held
under "sanads" from the British Government can be the subject-matter
5. Whether the properties of the Maharajah of
Kapurthala in Oudh could in view of article 12 of the Pepsu Union Covenant be
acquired under the Act.
6. Whether the said Act constitutes a fraud
on the Constitution.
The validity of the Act was attacked on a
variety of grounds by the learned counsel appearing in the different cases and
the grounds urged were by no 1065 means uniform or consistent and some of these
were destructive of one another.
Mr. P.R. Das, who opened the attack,
reiterated the arguments he had addressed to us in the Bihar appeals and urged
that the obligation to provide for compensation is implicit in the power
conferred on the State Legislature by entry 36 of List II with respect to
acquisitions, that the words "subject to the provisions of entry 42 of
List III" in entry 36 compel the court to construe entry 36 of List II
along with entry 42 of List III and, when so construed, it is clear that
compensation has to be provided for whenever power is exercised under entry 36,
that there is no provision for payment of compensation in the impugned Act, the
word "compensation" meaning the equivalent in money of the property
compulsorily acquired, that the U.P. Legislature had no power to enact this Act
without making provision for payment of compensation and in legal contemplation
the Act is not law, that article 31 (2) confers a fundamental right but has
nothing to do with legislative powers which have been conferred by articles 245
and 246 read with the three lists, that article 31 (4) does not in any way
affect the rights conferred by article 31(2), which exist notwithstanding
article 31 (4), and it only bars the remedy to challenge the Act on the ground
that it contravenes the provisions of clause (2), that the Act constitutes a
fraud on the Constitution, and lastly that the Act is void by reason of
delegation of essential legislative power.
On the question of the invalidity of the Act
for want of a provision for payment of compensation, Mr. P.R. Das reinforced
his arguments by reference to legislative practice in India and England and
contended that even without any express provision for compensation in the
different enactments to which our attention was drawn, the mere use of the word
"purchase" implied that compensation was a concomitant obligation of
the exercise of the power to compulsorily acquire property. For the reasons
1066 given by me in the Bihar appeals I cannot accept this contention. If the
Constitution was silent on the point and provided for compulsory acquisition,
the position might have been different.
Mr. Dhar, who appeared in some of the
appeals, supplemented the arguments of Mr. Das on this point. He contended that
regarding half of the properties acquired, the Act was a piece of confiscatory
legislation as these properties were non income bearing, and that as regards
the other half, though compensation at eight times the net income is provided,
it is a mere sham inasmuch as the Act makes payment of compensation
discretionary at the will and pleasure of the Government; the provision being
that Government will pay when it chooses to do so and it may never make the
choice. He further contended that the provisions of the Act regarding
compensation are colourable because they completely ignore the potential
incomes of the zamindars take notice only of the income recorded in the khatuni
entries which do not include the sir income, and acquire rent-free holdings and
undeveloped mines without any compensation, that the deduction of agricultural
income-tax from the gross income was unjust and the object of deduction was to
artificially reduce the net income, and the same procedure had been adopted in
the case of forests.
Dr. Ambedkar, who appeared in some of the
appeals, suggested a new approach for declaring the Act to be bad.
He contended that qua "estates"
defined in article 31-A, Part I of the Constitution should be deemed as
repealed and struck off from the Constitution. In deciding these appeal%
therefore, we are to look at the Constitution without the chapter on
Fundamental Rights; but as the Constitution aims at securing liberty and
equality for the people and gives only a restricted power to the State, the
obligation to pay compensation when private property is taken is implicit in
the very spirit of the Constitution. Mr. Das found the obligation to pay
compensation implicit in entry 36, but Dr, Ambedkar could not see 1067 eye to
eye with him though he supported his contention by urging that the prohibition
to acquire property by legislation without payment of compensation was implicit
in the spirit of the Constitution.
Mr, Varma, who appeared in some other
appeals, supported Mr. Das's argument that entry 36 should be read subject to
the provisions of entry 42 and further contended that the impugned Act was the
culminating point of a series of enactments passed as a device to confiscate
the properties of the zamindars after the passing of the resolution in 1946 by
the U.P. Legislature.
Having negatived the contentions of Mr. Das,
I cannot for the same reasons accept the contentions of Mr. Dhar as sound. It
is convenient now to examine the point made by Dr. Ambedkar that the obligation
to pay compensation is implicit in the spirit of the Constitution. It is wellsettled
that recourse cannot be had to the spirit of the Constitution when its
provisions are explicit in respect of a certain right or matter. When the
fundamental law has not limited either in terms or by necessary implication the
general powers conferred on the legislature, it is not possible to deduce a
limitation from something supposed to be inherent in the spirit of the
Constitution. This elusive spirit is no guide in this matter. The spirit of the
Constitution cannot prevail as against its letter. Dr. Ambedkar relied on the
observations of Nelson J. in People v.
Morris(1), quoted in the footnote, at p. 357
of Cooley's Constitutional Limitations. The footnote states :-"It is now
considered an universal and fundamental proposition in every well regulated and
properly administered government, whether embodied in a constitutional form or
not, that private property cannot be taken for strictly private purposes at
all, nor for public uses without a just compensation; and that the obligation
of contracts cannot be abrogated or essentially impaired. These and other
vested rights of the citizen are held sacred and inviolable, even (1) 13
Wend.325 1068 against the plenitude of power of the legislative department."
Those observations of the learned Judge, however, do not lend support to the
contention urged; on the other hand, it seems to me that the proposition stated
by Dr. Cooley at page 351 (Vol. 1) that the courts are not at liberty to
declare an Act void, because in their opinion it is opposed to the spirit
supposed to pervade the Constitution but not expressed in words, has an
apposite application here. It is difficult upon any general principle to limit
the omnipotence of the sovereign legislative power by judicial interposition
except so far as the express words of a written constitution give that
The argument of Dr. Ambedkar cannot be
accepted for the further reason that it is based on an unwarranted assumption
that qua the estates of the zaraindars, Part III of the Constitution stands
repealed and is non est. The truth is that Part III of the Constitution is an
important and integral part of it and has not been repealed or abrogated by
anything contained in article 31-A of the Constitution; on the other band,
article 31-A, while providing that no law providing for the acquisition by the
State of any estate, shall be deemed to be void on the ground that it is inconsistent
with or takes away or abridges any of the rights conferred by any of the
provisions of Part III, clearly provides that where such law is made by the
legislature a of State, the provisions of this article shall not apply thereto
unless such law having been reserved for the consideration of the President has
received his assent. This proviso in express terms keeps alive the alternative
provisions of Part III of the Constitution in article 31 (3) for judging
whether the State law has or has not complied with the provisions of article 31
(2). The provisions of article 31(2). therefore, do not stand repealed by
article 31-A. On the other hand, they are kept alive. The difference is that
persons whose properties fall within the definition of the expression
"estate" in article 31-A are deprived of their remedy under article
32 of the Constitution and 1069 the President has been constituted the sole judge
of deciding whether a State law acquiring estates under compulsory power has or
has not complied with the provisions of article 31 (2). The validity of the law
in those eases depends on the subjective opinion of the President and is not
justiciable. Once the assent is given, the law is taken to have complied with
the provisions of article 31 (2).
It is true that the principles of payment of
compensation stated in the Act do not give anything like an equivalent or quid
pro quo for the property acquired and provide only for payment of what is
euphemistically described in the resolution of the U.P. Legislature as
"equitable compensation ". Properties fetching no income pass to the
State without payment of any separate compensation and as comprising part of an
estate which yields some net income to the proprietor According to the
affidavit filed in the Balrampur Raj case, actual income of Rs. 1,42,000 that
the owner receives at present, works out to a sum of Rs. 10,000 under the
provisions of the Act and property worth several crores is being acquired for a
mere fraction of its true value. Culturable waste which forms twenty per cent.
of the entire area of the estate, trees, several lakhs in number, water
channels and irrigation works etc., are being acquired along with the
cultivated lands and income-fetching properties without any separate provision
for payment of compensation. But from those facts the conclusion cannot be
drawn that the provisions as to compensation in the Act are illusory.
In none of the cases could it be said that
the provisions of the impugned Act would result in nonpayment of compensation.
Great emphasis was laid on the circumstance
that nothing was being paid for non-income fetching properties. It has,
however, to be observed that these non-income fetching properties are integral
parts of an estate as defined in article 31-A and it cannot be said when
payment of compensation is provided for on the basis of the net income of the
whole of the estate, that the legislation 1070 is of a confiscatory character.
Different considerations might have prevailed if the estates as a whole were
not being acquired but different pieces of property were made the
subject-matter of acquisition. Properties comprised in an estate may be incomefetching
and non-income fetching, the value of these to the owner in the market may well
be on the basis of income and if the Act has laid down the principle of payment
of compensation on the foot of net income, it cannot be said that the
legislation is outside the ambit of entry 42 of List III.
Dr. Ambedkar frankly conceded that he was not
prepared to go to the length of contending that the compensation provided for
in the Act was illusory. He, however, said that it was inadequate, whether
tested subjectively or objectively. During the period that the Balrampur Raj
was under the supervision of the Court of Wards, part of the property acquired
was purchased on payment of Rs. 24,09,705 fetching a net income of Rs. 25,915.
This property, however, under the Act would be acquired on payment of Rs.
2,08,000. Under the U. P. Encumbered Estates Act the Government itself had
valued properties in various places in Uttar Pradesh for the purpose of the Act
on standard multiples, viz., from 37 to 20 times the net income. Price of part
of the property acquired on this basis comes to Rs. 47,14,696, while compensation
according to the Act payable would be about one fourth of this amount. Be that
as it may, article 31 (4) is a complete answer to all these contentions, as
held by me in the Bihar appeals. This Bill was pending in the legislature of
the. State on the 26th January, 1950, when the Constitution came into force and
this circumstance makes article 31 (4) applicable to all these cases. It was
contended by Mr. Varma that the U.P. Assembly was prorogued on the 21st
January, 1950, and the Bill was reintroduced on the 7th February, 1980, and on
the 26th January, 1950, when the Constitution came into force it could not be
said to be pending as it had lapsed. This contention seems to be based on a
misapprehension as to the provisions of the 1071 Constitution Act of 1935 and
the provisions of the present Constitution. Section 73 of the Government of
India Act, 1931, and article 196 of the present Constitution provide in
unambiguous terms that a Bill pending in the legislature of a State shall not
lapse by reason of the, prorogation of the House or Houses thereof. In view of
these clear provisions the contention of the learned counsel that the Bill was
not pending on 26th January, 1950, has to be rejected. Further the provisions
of articles 31-A and 31-B completely shelter this law from any attack based on
any of the provisions of Part III of the Constitution. This proposition was not
disputed. As the validity of the Act could not be impugned on any of the
provisions of Part III of the Constitution, that was the reason why the attack
on its constitutionality was made on other grounds-ingenious but
unsubstantial--lying outside the ambit Part III.
As regards the contention that the provisions
with regard to payment of compensation would result in non-payment of it as it
is payable at the pleasure of Government and the debts of the zamindars are to
be deducted out of it, my view is that both these contentions are unsound.
Under the provisions of the Act above cited,
compensation becomes due on the date of the vesting of the estate. Interest at
two and a half per cent runs from that date and becomes payable forthwith.
Section 27 of the Act makes it obligatory on the Government to pay
compensation. Section 65 in clear terms provides that there shall be paid to
every intermediary as compensation the amount declared in that behalf under
section 60. Section 68 gives option to the Government to pay compensation
either in cash or in bonds, or partly in cash and partly in bonds as may be
If the Government does not prescribe
anything, it is obvious that compensation will be payable forthwith. If, on the
other hand, Government makes any rules and prescribes that compensation will be
payable at some remote time and not within a reasonable period it will be open
to the 1072 parties affected to challenge the validity of the rules on the
ground of abuse of power. These provisions, however, do not vitiate the Act and
affect its validity. So far as the debts are concerned, they were payable in
certain installments out of the income of the lands, they have been made
payable at once and provision has been made that the amount be deducted from
the amount of compensation. Installments had been fixed because of the fact
that they were recoverable from the income of the land. When the lands are
converted into money, it follows as a matter of course that the right to
recover the debts from the income of the lands is transferred to the
compensation money and the provision regarding installments becomes infructuous
by the fact of acquisition. Dr. Ambedkar further contended that in fixing the
amount of compensation the State was a judge in its own cause and this was
against the spirit of the Constitution.
There is no substance in this contention as
the actual amount of compensation is to be determined by the compensation
officer and his adjudication on the point is subject to an appeal. Government
is not the judge of the actual amount of compensation. So far as the law is
concerned, it is the act of the legislature and being within its competence, no
challenge can be made against the validity of the Act on this ground.
The question that the Act does not postulate
any public purpose and is thus unconstitutional was argued by Mr.
Dhar and Dr. Ambedkar with some vehemence and
it was contended that there was no public purpose behind this legislation. Mr.
Dhar urged that the sole purpose of the acquisition of zamindars' estates was
for increasing the revenues of the State and for selling the intermediaries'
interests to private individuals, the intention being to make money by trading
activities and at the same time root out the zamindars who constitute
one-fourth of the population of Uttar Pradesh. It was contended that no
community in Uttar Pradesh derived any benefit from the provisions of the Act
because the tenants whose status was intended to be raised, had been given 1073
sufficient relief under statutes already passed and what was humanly possible
to do for them had been done, that they were at present more prosperous than
the middle class people and that the creation of a classless society by
destroying a class was not a public purpose. Dr. Ambedkar on the other hand
argued that he would have been content had the State nationalised the
zamindaries because then the acquisition would be for a public purpose, but as
under the impugned Act the State had merely constituted itself a trustee for
distribution of the intermediaries' interests amongst the" haves" and
not amongst the "have nots": i.e., amongst the bhumidars, sirdars,
asamis and adhivasis and not amongst the landless, the Act was not for a public
purpose at all but was an unfortunate piece of legislation as property was
being acquired for the private benefit of persons and not for public use and
that giving of property to gaon samaj also could not be held to be for public
benefit or public use.
In my opinion, as already stated by me in the
Bihar appeals, these arguments are unsound. The expression "public
purpose" is not capable of a precise definition and has not a rigid
meaning. It can only be denned by a process of judicial inclusion and
exclusion. In other words, the definition of the expression is elastic and
takes its colour from the statute in which it occurs, the concept varying with
the time and state of society and its needs. The point to be determined in each
case is whether the acquisition is in the general interest of the community as
distinguished from the private interest of an individual. Prof. Willis has
summarized the present position in the United States on this subject, at pages
817 and 818 of his book, in these words :"What is public use? On this
question there have been two view-points. One may be called the older
view-point and the other newer view-point. According to the older viewpoint, in
order to have a public use, there must be the use by the public .......
....According to the newer view-point there 138 11074 is a public use if the
thing taken is useful to the public.
This makes public use for eminent domain
practically synonymous with public purpose for taxation and somewhat like
social interest for police power Under this rule it is not necessary for the
benefit to be for the whole community, but it must be for a considerable number
." The High Court took the view that acquisition of property under
compulsory powers for securing an aim declared in the Constitution to be a
matter of State policy is an acquisition for a public purpose. The following
observations from the judgment of Bhargava J. may be quoted with advantage :"The
effect of the impugned Act is to vest the ownership and control of a
considerable part of the material resources of the community in the State
Government; ........... the vesting in the State of the estate of the
intermediaries is an indispensable preliminary to the pursuit of measures for
the eradication or mitigation of the principal causes of agricultural poverty.
Two of such measures are embodied in the Act, which makes provision for three
new classes of tenure-holders, bhumidar, sirdar and asami, and for the
formation of co-operative farms. The provisions of Chapter Vii of the Act,
which depend in some measure for their efficacy on the transfer of property to
the State effected by Part I of the Act, are clearly directed to the development
of village self-government. It can, we think, be inferred from the Act that the
scope is given for more effective development of the State's 'agricultural
resources than is at present possible .............. Reading the Act as a whole
there can, we think, be no doubt that the primary object of the legislature is
to effect a radical change in the system of the land tenure now prevailing in
In my opinion, legislation, which aims at
elevating the status of tenants by conferring upon them the bhumidari rights to
which status the big zamindars have also been levelled down cannot be said as
Wanting 1075 in public purposes in a democratic State. It aims at destroying
the inferiority complex in a large number of citizens of the State and giving
them a status of equality with their former lords and 'prevents the'
accumulation of big tracts of land in the hands of a few individuals which is
contrary to the expressed intentions of the Constitution.
Dr. Ambedkar combated this view and urged
that the expression "public purpose" was not a new concept when the
Constitution of India was framed; on the other hand, it had a settled meaning
in the past legislative history of this country and it must be presumed that
the Constitution used the expression in the same sense in which it had been
used in the earlier Acts and in the Government of India Act, 1935, and that it
should not be construed in the light of the directive principles laid down in
Part IV of the Constitution. He contended that had the constitutionmakers
intended to give this concept a different meaning than it had acquired in the
past, they would have clearly given expression to that intention by saying that
the expression "public purpose" includes purposes which aim at
implementing the directive principles Of State policy and that Part IV of the
Constitution merely contained glittering generalities which had no
justification behind them and should not be taken into consideration in
construing the phrase "public purpose".
In my opinion, the contentions raised by Dr.
Ambedkar, though interesting, are not sound because they are based on the
assumption that the concept of public purpose is a rigid concept and has a
settled meaning. Dr. Ambedkar is right in saying that in the concept Of public
purpose there is a negative element in that no private interest can be created
in the property acquired compulsorily; in other words, property of A cannot be
acquired to be given to B for his own private purposes and that there is a
positive element in the concept that the property taken must be for public
benefit. Both these concepts are present in the acquisition 1076 of the
zamindari estates. Zamindaries are not being taken for the private benefit of
any particular individual or individuals, but are being acquired by the State
in the general interests of the community. Property acquired will be vested
either in the State or in the body corporate, the gaon samaj, which has to
function under the supervision of the State. Tenants, sirdars, asamis etc., are
already in possession of the lands in which their status is to be raised to
that of bhumidars. Zamindars who are being reduced to the status of bhumidars
are also in possession of the lands. There is no question in these
circumstances of taking property of A and giving it to B. All that the Act
achieves is the equality of the status of the different persons holding lands
in the State. It is not correct to say that Government is acquiring the
properties for the purpose of carrying on a business or a trade. The moneys
received from persons seeking bhumidari status or from the income of zamindari
estates will be used for State purposes and for the benefit of the community at
large. For the reasons given above I hold that the impugned Act is not void by
reason of the circumstance that it does not postulate a public purpose.
As regards the question of delegation, our
attention was drawn particularly to the provisions of sections 6 (e) and (g)
and 68. These sections provide for the prescription of the rate of interest by
the executive government on mortgages and they also authorize the local
government to determine the period of redemption of the bonds and the fixation
of the ratio between payment of compensation in bonds and payment in cash. In
my opinion, the delegation is within the permissible limits and does not amount
to delegation of essential legislative power. The main principles on these
matters have been laid down in the Act and matters of detail have been left to
the rule-making power.
As regards the appeal of the Maharaja of
Kapurthala (Appeal No. 285 of 1951), the facts are these: By article 12 of the
Covenant of Merger dated the 5th 1077 May, 1948, entered into between the
Rulers of the States now comprised in the Pepsu Union, the properties which are
the subject-matter of the appeal were declared and guaranteed as the private
properties of the Maharaja. Tha Maharaja was also guaranteed a privy purse of
Rs. 2,40,000, It was suggested that the Maharaja accepted this sum which was
smaller in amount than what was allowed to other Rulers as privy purse because
he was assured of the income of the Oudh estate. On these facts it was
contended that the impugned Act contravened the provisions of article 362 of
the Constitution inasmuch as it has not paid due regard to the guarantees
contained in article 12 of the Covenant. As already held by me in the Madhya
Pradesh petitions, this contention is devoid of force. The impugned Act has
fully respected the Covenant of the 5th May, 1948, inasmuch as it has treated
the Oudh estate as the private property of the Maharaja as distinguished from
the State properties and it is on that basis that it has proceeded to acquire
it on payment of compensation. The allegation that the income of this estate
was to supplement the privy purse and that the appellant accepted a lower sum
by way of privy purse than given to the other Maharajas has been denied by the
Government and we see no reason to hold in the absence of any material to the
contrary, that this denial is not true. This Act, therefore, constitutes no
breach of the guarantees given in article 362 of the Constitution. It was urged
by the learned AttorneyGeneral that article 363 of the Constitution bars the
jurisdiction of this Court from going into this question. Dr. Ambedkar, on the
other hand, contended that this article has no application because of the fact
that the Government of India was not a party to this Covenant. As at present
advised, I see good deal of force in the point raised by the learned
Attorney-General. Not only did the Government of India sign the Covenant as a
guarantor but it also signed it as a concurring party and that being so, the
provisions of article 363 seem to be attracted to the case. The appeal of the
Maharaja therefore fails on this point.
1078 Mr. Bishan Singh, who appeared in
Appeals Nos. 284, 285, 288, 289 and 290, argued the special cases of the
taluqdars of Oudh. It was contended that the taluqdars were absolute owners of
these holdings at the time of the annexation of Oudh in February, 1856, that
subsequently the British Government under the directions of Lord Dalhousie
tried to take away the taluqdars' rights, but that after the mutiny they were
reinstated in their earlier status and that status was reaffirmed by the
enactment of the Oudh Estates Act, I of 1856, that the permanent and hereditary
rights of the appellants under that Act in the lands granted to them under the
sanads could not be affected by any legislation made by the successors in
interest of the British Government and that Government could not derogate from
its grant. It seems to me that the lands held by the taluqdars stand on no
higher footing than the properties of other owners in Oudh.
Be that as it may, the matter seems to have
been set at rest by the decision of their Lordships of the Privy Council in
Thakur Jagannath Baksh Singh v. United Provinces (1). At page 119 of the report
it was observed as follows:"It is, however, desirable to examine the
particular grounds on which it is sought to induce the court to arrive at this
paradoxical conclusion. Some of these are said to be based on the general
principle of law that the Crown cannot derogate from its own grant, others are
said to depend on particular provisions of the Government of India Act. It has
not been possible for the appellant to adduce any authority for the principle
involved, which their Lordships apprehend to be that Parliament, whether
Imperial, Federal or Provincial, in the absence of express prohibition, is
debarred from legislating so as to vary the effect of a Crown grant." The
Crown cannot deprive a legislature of its legislative authority by the mere
fact that in the exercise of its prerogative it makes a grant of land within
the territory over which such legislative authority exists (1)  F.C.R.
1079 and no court can annul the enactment of
a legislative body acting within the legitimate scope of its sovereign competence.
If therefore it be found that the subject-matter of a Crown grant is within the
competence of a provincial legislature, nothing can prevent that legislature
from legislating about it, unless the Constitution Act itself expressly
prohibits legislation on the subject either absolutely or conditionally.
Dr. Asthana, who appeared in Appeals Nos. 291
to 294 of 1951, argued the case of the religious institutions. He contended
that the properties held by these institutions had already been dedicated for
public purposes, that the income of these properties was being used for holding
melas, feeding sadhus and other charitable purposes and that any reduction in
that income would adversely affect those institutions and the properties that
were already dedicated for public purposes could not be acquired under
compulsory powers of acquisition. The argument is fallacious. A charity created
by a private individual is not immune from the sovereign's power to
compulsorily acquire that property for public purposes. It is incorrect to say
that the vesting of these properties in the State under the provisions of the
Act in any way affects the charity adversely because the net income that the
institutions are deriving from the properties has been made the basis of
compensation awarded to them.
Mr. Varma, who appeared in Appeal No. 295 of
1951, raised several new and ingenious points, none of which, however, he was
able to substantiate. He contended that the impugned Act may not be void but
the notification which the Government was authorised to issue under the powers
conferred on it by the statute would be void because the executive government
could not infringe fundamental rights by a notification which remained
unaffected by articles 31 (4), 31-A and 31-B. The argument does not seem to be
valid because it suffers from the defect that if the statute is good, the
notification which is of a consequential nature cannot be held to be bad it was
1080 next contended by the learned counsel that the zamindars had vested rights
in existing law, namely, the Land Acquisition Act and the impugned statute
could not deprive them of the benefits of the provisions of that Act. Similar
argument was raised in the Bihar appeals and for the reasons given therein it
is repelled. It was then contended that in view of the provisions of the
Religious Endowments Act, lands of religious endowments could not be acquired
under the provisions of the impugned statute. This contention seems to have
been raised on some misapprehension as to the scope and extent of the Religious
Endowments Act, XX of 1863. It is not proved that Act has any application to
the properties sought to be acquired under the impugned Act. Moreover, that Act
only deals with management of certain properties and does not stand in the way
of their acquisition.
Great effort was made by Mr. Varma to
establish that the impugned Act was a piece of fraud on the Constitution. It
was contended that the U.P. Government had been since a long time enacting laws
with the fraudulent intention of depriving the zamindars of compensation by
reducing their incomes,--he made mention of half a dozen Acts that were enacted
in U.P. prior to the impugned Act. The argument, to my mind, is based on a
confusion of thought. The enactments referred to were enacted by the
legislature of U.P. between 1930 and 1940, before the Constitution came into
force, and have no connection whatever with acquisition of properties.
Mr. Varma attacked the validity of section
840 of the Act which enacts that"where any orders had been made
................. or jurisdiction exercised under the provisions of the U.P.
Agriculture Tenants (Acquisition of
Privileges) Act, 1949, the provisions of the said Act shall be so read and construed
as if the amendments mentioned in Schedule IV had been made therein and were in
force from the commencement of the said Act." It was contended that the
U.P. Agriculture Tenants (Acquisition of Privileges) Act, 1949 was an existing
1081 law in U.P. and had not been repealed by the impugned Act and that being
so, this Act could not validate notifications made under that existing law. I
have not been able to see the force of this suggestion. Be that as it may, the
constitutionality of this section does not affect the legislation as a whole.
The point was never raised before the High Court and has no substance.
It was also contended that mere rights in
land apart from the lands themselves could not be acquired under compulsory
power and that the U.P. Legislature could not acquire proprietary rights in
lands and leave the bhumidari rights with the landlords. This proposition
It is open to Government to acquire the whole
of the rights of an owner or a part of that right. Leasehold and other similar
rights can always be acquired and if a person owns the totality of rights, it
is not necessary to acquire the whole interest of that person if it is not
needed for public purposes.
Lastly, it was urged that in truth the
legislation in question fell under legislative power conferred by entry 18 of
List II and this power could only be exercised subject to the freedom
guaranteed by article 19(f) of the Constitution, that the total abolition of
the zamindaris could not be protected by the provisions of clause 6 of article
19 in that it could not be regarded a reasonable restriction on the exercise of
the right to hold property. This argument loses sight of the fact that no help
can be sought in these cases from any of the provisions of Part III; moreover,
the legislation in question has been enacted under legislative powers given by
entry 36 of List II and not under entry 18 of that List. Mr. Varma raised some
other contentions also but during the discussion he eventually abandoned them.
The result therefore is that there is no
substance in any one of the appeals and I would accordingly dismiss all of
them. I would, however, make no order 139 1082 as to costs in any of them in
view of the peculiar circumstances of these cases. The Constitution was amended
during the pendency of the litigation and any costs allowed to the Government
would further reduce the inadequate compensation that the Government is paying
for the acquisition of these estates.
MUKHERJEA J.--I agree that these appeals
should be dismissed.
DAS J.--This group of appeals arises out of
various proceedings instituted in the High Court of Allahabad under article 226
of the Constitution questioning the validity of the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 (U. P. Act No. I of 1951) hereinafter
referred to as The Act.
On 8th August 1946, the United Provinces
Legislative Assembly passed a resolution accepting the principle of the
abolition of the zamindari system in the Province involving intermediaries
between the cultivators and the State and resolving that the rights of such
intermediaries should be acquired on payment of equitable compensation. To
prepare the necessary scheme a committee, called the Zamindari Abolition
Committee, was appointed. That committee submitted its report in August, 1948,
making various recommendations which have been summarised by Mr. S.K. Dhar
appearing for some of the appellants as follows :-(1) Abolition of zamindari on
payment of Rs. 137 crores at 21/2 per cent interest;
(2) Establishment of gaon samaj;
(3) Supply of rural credit by Government;
(4) Introduction of a modified form of
peasant proprietorship combined with voluntary co-operative farming;
(5) Introduction of a restricted form of
(6) Prohibiting sub-letting and permitting
alienation only to the extent that the alienee will not get more than 35 acres
including his previous possessions, 1083 To give effect to the recommendations
of the committee a Bill which eventually became the Act was introduced in the
U.P. Legislative Assembly on 17th July, 1949. After having been passed by the
U.P. Legislature the Bill received the assent of the President on 24th January,
1951. There is no dispute in this case that the provisions of article 31 (3)
have been complied with. It is also clear, notwithstanding that at one stage it
was disputed by one of the learned counsel evidently out of some
misapprehension, that the Bill was pending before the Legislature at the
commencement of the Constitution and comes within article 31 (4) of the
The title and preamble of the Act follow the
wording of the resolution of the Legislature. The preamble recites that it is
expedient to provide for the abolition of the zamindari system which involves
intermediaries between the tillers of the soil and the State in the Uttar
Pradesh and for the acquisition of their rights, title and interest and to
reform the law relating to land tenure consequent upon such abolition and
acquisition and to make a provision for other matters connected therewith. The
body of the Act is divided into two parts, each part containing six chapters.
Chapter 11 of Part I deals with acquisition; Chapter III with assessment of
compensation and Chapter IV with payment of compensation. Chapter V is
concerned with rehabilitation grant, while Chapter VI deals with mines and
Chapter VII, which is in Part II, deals with
the constitution of gaon samaj and gaon sabha. Chapter VIII relates to tenure,
Chapter IX to Adhivasis. Chapter X is concerned with land revenue and Chapter
XI with co-operative farms.
Chapter XII deals with miscellaneous matters.
Broadly speaking, the Act provides for acquisition of the interest of
intermediaries for a compensation calculated at eight times the net income
arrived at by deducting from the gross assets (which are the same as the gross
income) the Government revenues, cesses and local rates, agricultural
income-tax and costs of management.
1084 Before notification was issued by the
State Government under section 4 of the Act, the intermediaries filed petitions
under article 226 of the Constitution praying, inter alia, for the issue of a
writ in the nature of mandamus or other appropriate directions, orders or writs
calling upon the State to forbear from giving effect to or acting in any manner
by virtue of or under the Act. By a judgment of a Full Bench of the Allahabad
High Court delivered on 10th May, 1951, the petitions were dismissed. The High
Court, however, certified, under article 132(1), that the cases involved
substantial questions of law as to the interpretation of the Constitution. The
intermediaries accordingly have come up on appeal before us.
Mr. P.R. Das who appears in support of
several of these appeals raises the same questions as were raised by him in the
Bihar appeals. Other learned counsel appearing for the other appellants mainly
supported Mr. P.R. Das and also sought to reinforce the appellants' cases on
some additional grounds.
Mr. S.K. Dhar has taken us through the
provisions of the Act and drawn our attention to the facts and figures appearing
in the affidavit of Sri J. Nigam filed in Appeal No. 285 of 1951 and the Report
of the Zamindari Abolition Committee.
He has contended that of the 20, 16,783
zamindars in U.P. about 20,00,000 are tillers of the soil also; that onefourth of
the cultivable lands is with peasant proprietors and the remaining
three-fourths is with tillers who pay rent to the zamindars. Most of the
tillers have occupancy rights and cannot be ejected. Since 1947, the Congress
Government has carried out extensive agrarian reforms; the zamindars profits
have gone down from 1108 crores in 1939-40 to 1,069 crores in 1945-46, that is
to say, there has been a drop of about 39 crores;cess has been raised by 27
lacs and incometax has been imposed to the extent of about one crore of rupees.
The price of agricultural produce has gone up by 400 per cent so that the price
of produce aggregates to about rupees 851 crores while the rent payable by the
tenants is only 17 crores. Therefore, it is 1085 contended that there does not
appear any essential or urgent public purpose for which the impugned Act was
necessary at all.
Dr. Ambedkar appearing for the appellants in
Appeals Nos. 285 and 288 of 1951 has addressed us at length as to the meaning
,of the expression "public purpose" as explained in various judicial
decisions and text books. He has contended that it is wrong to say that the Act
proposes to acquire the zamindaries for the State. What, he asks, is the
destination of the property acquired ? Under the Act the State assumes the
function of a trustee for distributing the property. The main purpose of the
Act is to convert the tenants into bhoomidars, sirdars and so on. The net
result of the Act, according to him, is that the property of the zamindars is
taken away and vested in the tenants. He points out that the Act makes no
provision for the landless labourers. Dr. Ambedkar maintains that this cannot
be called "acquisition for a public purpose". He submits that public
purpose must be distinguished from a mere public interest or public benefit or
public utility. He further contends that the establishment of gaon samaj cannot
be said to be a public purpose.
As regards compensation Mr. Dhar points out
that in fixing compensation under Table A regard is to be had only to income.
Non-income yielding property goes without any compensation, e.g., culturable
waste. In point of fact Government acquired a large area of culturable waste at
300 per acre and yet no compensation will be
paid under the Act for culturable waste. Abadi sites also will bring no
compensation. Even income yielding property, e.g., irrigation works like 600
miles of canal in Balrampur and 143 1/2 miles in Bird estate, will yield no
compensation although the Government will get additional revenue out of them.
Scattered trees in Balrampur alone will come
up to 85,000 in number. The income of Seyer property will only be taken at the
figure recorded in Khataunis, although it is well-known that actual incomes are
not recorded therein. Seyer and khud 1086 khast were never assessed to revenue,
but under the Act they will be so assessed. No compensation is, however,
provided for the loss of status from Zamindari to Bhoomidari. Rentfree holdings
granted by the zamindar which at present yield no income are not taken into
account although there is always a possibility of their resumption.
Agricultural income-tax is deducted and forest is valued on an average of 20 to
40 years' income, although forest industry is of a very recent growth. Finally,
the income of mines is to be computed on an average of 12 years' income. The
undeveloped mines or mines which have not started yielding any income will not
fetch any compensation. These are, in short, the main objections of the
landlords as summarised by Mr. S.K. Dhar as to the method of assessment of
compensation. As regards the manner of payment of compensation Mr. S.K. Dhar
points out that the Act does not really provide for payment of compensation at
all in the eye of the law. Under section 68 no time is fixed for payment. It is
left to be prescribed by rules, but no rules have been made. Compensation
payable, say in 40 years or 50 years or 200 years, may be a charity or a dole
but is certainly not compensation, prompt and certain such as is contemplated
by the decision of the United States Supreme Court in Sweet v. Rachel(1) and
several other cases cited by him. He maintains that the compensation is
illusory because(i) it is based not on the actual income but on arbitrarily
(ii) the determination of time and manner of
payment is left entirely at the discretion of the appropriator, and (iii) the
source of payment is not the community as a whole but the expropriated
proprietors' own property.
In my judgment in the Bihar appeals I have
dealt at length with the meaning of "public purpose" and I have also
dealt with the question of compensation.
(1) 4x L. Ed. 188 at pp. 196-97.
1087 It is, therefore, unnecessary for me to
reiterate the principles as I apprehend them. For reasons stated by me in that
judgment the impugned Act cannot be questioned on the ground of absence of a
public purpose or absence of just compensation. If anything, the public purpose
in the impugned Act is much more evident and pronounced than it is in the Bihar
Land Reforms Act. It is impossible to say that the impugned Act is not a law
with respect to principles on which compensation is to be determined and the
manner of its payment. If the Government does not prescribe how much of the
compensation will be paid in cash and how much will be paid by bonds as
mentioned in section 18, the intermediaries will not suffer because under
section 65 their right will remain enforceable.
I have also dealt with the questions of fraud
on the Constitution and the improper delegation of essential legislative power
in my judgment in the Bihar appeals and I need not repeat the answers given by
me. Suffice it to say that for reasons stated in my judgment in the Bihar
appeals the main grounds on which the Act is impugned must be rejected.
Dr. Ambedkar has urged that the spirit of the
Constitution is a valid test for judging the constitutionality of the impugned
Act. He maintains that our Constitution being one for establishing liberty and
equality and a government of a free people it must be held to contain an
implied prohibition against the taking of private property except for a public
purpose and on payment of just compensation.
The necessity for the existence of a public
purpose and for providing for compensation are, as I have said in my judgment
in the Bihar appeals, provisions of article 31 (2) and, therefore, it is not
necessary to have recourse to any spirit of the Constitution, for the letter of
the Constitution itself requires the two requisites. Dr. Ambedkar, however, argues
that, so far as the appellants are concerned, Part III of the Constitution does
not exist and, therefore, the maxim expressum facit cessare taciturn does not
apply. I am not prepared to accept this argument as 1088 sound. It is true that
the appellants cannot question the impugned Act on the ground that it is
inconsistent with or takes away or abridges any of the rights conferred by any
provisions of Part III, but this circumstance does not imply that Part III is
wholly erased out of the Constitution. It exists for all other purposes. For
instance, article 3 I-A protects a law providing for acquisition by the State
of any estate, but it does not protect a law providing for acquisition by the
State of any property which does not come within the expression
"estate" as defined in that article. For all laws for acquisition of
all other properties Part III certainly exists and if it is conceded that the
provisions of Part III exist in so far as such other laws are concerned the
provision of article 31 (2) requiring the existence of a public purpose and the
provision for compensation must exclude any theory of the implied existence of
those two requirements. In the next place, the spirit of the Constitution has
to be inferred from some provision, express or implied, of the Constitution.
Mr. P.R. Das based his argument on the implications to be deduced from the
language of entry 36 in List II and entry 42 in List III. Dr. Ambedkar,
however, says that it is not necessary for him to go to any entry at all. He
points out that the American Courts have held that where in a Constitution
there is a representative form of government in which there is liberty and
equality and when the government is a limited one such a Constitution carries
with it the implication that the State cannot take private property except for
a public purpose and on payment of compensation. I find it very difficult to
accept this argument. The existence of a public purpose and the necessity for
payment of compensation have been insisted upon from very old times when the
constitutions of governments in different countries were entirely different
from the Constitution of the United States. It follows, therefore, that these
two elements cannot be said to be an inherent part of the spirit of any
particular form of government.
Our Constitution has in article 31 (2)
recognised the existence of the two elements as a 1089 prerequisite to the
exercise of the power of eminent domain, The impugned Act having been expressly
taken out of the operation of those provisions, the question of invoking any
imaginary spirit of the Constitution cannot be entertained.
Indeed, invocation of such an imaginary
spirit will run counter to the express letters of articles 31 (4), 31-A and
Dr. Ambedkar appearing for the Maharaja of
Kapurthala, who is the appellant in Case No. 289 of 1951, has also raised the
point that the private property of the appellant is protected by article 362 of
the Constitution and as the impugned Act does not pay any regard to those
rights it is void. On 5th May, 1948, certain covenants of merger were entered
into between the rulers of seven Punjab States.
Under article 12 of the covenant each ruler
is to be entitled to the ownership, use and enjoyment of all private
properties. A list was furnished to the Rajpramukh in which certain Oudh
properties belonging to the appellant were shown as his private property. The
appellant states that the amount of his privy purse was fixed at a low figure
in consideration of the income of the Oudh estate. These allegations are not
admitted by the respondents. I have already dealt with the correctness of a
similar argument raised by Dr. Asthana on behalf of the ruler of Khairagarh in
petition No. 268 of 1951 which was concerned with the Madhya Pradesh Act.
Shortly put, my view is that this claim to the private property is not within
article 362, that by offering him compensation the Act has recognised his ownership,
that, in any event, that article imposes no legal obligation on the Parliament
or the State Legislature and, finally, that article 363 bars the jurisdiction
of this Court with respect to any dispute arising out of the covenant of
merger. Those covenants were entered into by the seven rulers and the
Government of the Dominion of India was a party thereto in that it concurred in
the covenants and guaranteed the same. In my opinion, for reasons stated in my
judgment in the Madhya Pradesh petitions, there is no substance in this point.
140 1090 Dr. Asthana appearing for certain
religious institutions which are appellants in Appeals Nos. 291 to 294 of 1951
contended that their property already dedicated to a public purpose cannot be
acquired for another public purpose. I see no substance in this contention. The
property belonging to the religious institutions will only change its form,
namely, from immovable property into money.
Certain subsidiary points raised by Mr.
Bishun Singh and Mr. Prem Manohar Verma have been dealt with by my learned
brother Mahajan J. and it is unnecessary for me to add anything thereto.
In my judgment, for reasons stated in ray
judgments in the Bihar appeals and the Madhya Pradesh petitions and those
mentioned above, these appeals should be dismissed.
CHANDRASEKHARA AYYAR J.-I agree that the
appeals should be dismissed without any order as to costs.
Agent for the appellant: S.S. Sukla.
Agent for the respondents: C.P. Lal.