The State of West Bengal . Vs. Subodh
Gopal Bose & Ors [1953] INSC 85 (17 December 1953)
SASTRI, M. PATANJALI (CJ) MAHAJAN, MEHR CHAND
DAS, SUDHI RANJAN HASAN, GHULAM JAGANNADHADAS, B.
CITATION: 1954 AIR 92 1954 SCR 587
CITATOR INFO :
E 1954 SC 119 (1) RF 1954 SC 282 (13) R 1954
SC 728 (25) R 1955 SC 41 (6) R 1955 SC 604 (19) RF 1955 SC 781 (11) RF 1956 SC
246 (65) E&D 1957 SC 599 (24) D 1957 SC 832 (25) R 1958 SC 328 (9,10,11,34)
F 1958 SC 578 (170) F 1958 SC 731 (21) R 1959 SC 308 (6) D 1959 SC 648 (38) D
1960 SC1080 (22,27,28) RF 1961 SC1684 (28,29) E 1962 SC 263 (24) D 1962 SC 458
(24) RF 1962 SC1006 (67,72,78) RF 1962 SC1781 (20) C 1963 SC 864 (25,27) R 1963
SC1019 (13,14) RF 1963 SC1667 (11) R 1965 SC 190 (4) R 1967 SC 856 (9) F 1967
SC1643 (179,227) RF 1968 SC 394 (10,18) RF 1969 SC 634 (33,35,38) RF 1970 SC
564 (54,55,151,200) R 1971 SC1594 (9) RF 1973 SC1461 (310) R 1978 SC 215 (68) R
1978 SC 597 (189) R 1978 SC 803 (35) RF 1979 SC 248 (10) E 1980 SC1042 (110) E&R
1987 SC 180 (9) F 1989 SC1629 (15) F 1990 SC1927 (61) RF 1992 SC1256 (14)
ACT:
Constitution of India, arts. 19 (1)(f) &
31--Scope of Correlation between art. 19 (1) (f) and art. 31--Clauses (1) and
(2) of art. 31, whether mutually exclusive--"Deprivation"--"Acquisition"--"Taking
possession of"--Meanings of--Bengal Land Revenue Sales (West Bengal
Amendment) Act, 1950 (West Bengal Act VII of 1950), s. 7--Whether ultra vires
art. 19 (1) (f) and an. 31.
HEADNOTE:
The first respondent B purchased a Touzi in
24- Parganas Collectorate at a revenue sale held on 9th January, 1942. As such purchaser he acquired under s. 37 of the Bengal Revenue Sales Act, 1859,
the right "to avoid and annul all under-tenures and forthwith to eject all
under-tenants" with certain exceptions which are not material here. In
exercise of that right he gave notices of ejectment and brought a suit in 1946
to evict certain under-tenants including the second respondent herein and to
recover possession of the lands. The suit was decreed against the second
respondent who preferred an appeal- to the District Judge, 24-Parganas,
contending that his under-tenure came within one of the exceptions referred to
in s. 37. When the appeal was pending, the Bill which was later passed as the
West Bengal Revenue Sales (West Bengal Amendment) Act, 1950, was introduced in
the West Bengal Legislative Assembly on 23rd March, 1950. It would appear,
according to the "statement of objects and reasons" annexed to the
Bill, that great hardship was being caused to a large section of the people by
the application of s. 37 of the Bengal Land Revenue Sales Act, 1859, in the
urban areas and particularly in Calcutta and its suburbs where "the
present phenomenal increase in land values has supplied the necessary incentive
to speculative purchasers in exploiting this provision (section. 37) o/the law
for unwarranted large scale eviction" and it was, therefore, considered
necessary to enlarge the scope of protection already given by the section to
certain categories of ,tenants with due safeguards for the security of
Government revenue.
The Bill was eventually passed as the
amending Act and it came into force on 15th March, 1950. It substituted by s. '4 the new s. 37in place of the original s. 37 and it provided by s. 7 that all
pending suits, appeals and other proceedings which had not already resulted in
delivery of possession, shall abate.
Thereupon B contending that s. 7 was void 588
as abridging his fundamental rights under art. 19(1)(f) and art. 31 . moved the
High Court under art. 228 to withdraw the pending appeal and to determine the
constitutional issue raised by him. The appeal was accordingly withdrawn and
the case was heard by Trevor Harries C.J and Banerjee J. who, by separate but
concurring Judgments, declared s. 7 unconstitutional and void. They held that
B's right to annul under-tenures and evict under tenants being a vested right
acquired by him under his purchase before s. 37 was amended, the retrospective
deprivation of that right by s. 7 of the amending Act without any abatement of
the price paid by him at the revenue sale was an infringement of his
fundamental right under art. 19 (1)(f) to hold property with all the rights
acquired under his purchase, and as such deprivation was not a reasonable restriction
on the exercise of his vested right, s. 7 was not saved by cl. (5) of that
article and was void. The State of West Bengal preferred the present appeal to
the Supreme Court:
Held, per PATANJALl SASTRI C.J.--Article 19
(1) (f) has no application to this case. The word "hold" in the
article means own. The said sub-clause (f) gives the citizen of India the abstract right to acquire, own and dispose of property. This article does not
deal with the concrete fights of the citizens of India in respect of the
property so acquired and owned by him. These concrete rights are dealt with in
art. 31 of the Constitution.
Under the scheme of the Constitution all
those broad and basic freedoms inherent in the status of a citizen as a free
man are embodied and protected from invasion by the State under cl. (1)of art.
19, the powers of State regulation of those freedoms in public interest being
defined in relation to each of those freedoms by cls. (2) to (6) of that
article, while rights of private property are separately dealt with and their
protection provided for in art. 31, the cases where social control and
regulation could extend to the deprivation of such rights being indicated in
para. (ii) of sub-clause (b) of cl. (5) of art. 31 and exempted. from liability
to pay compensation under cl. (2).
Held, per PATANJALI SASTRI C.J. (MEHR CHAND
MAHAJAN' and GHULAM HASAN JJ. concurring)--(i) Article 31 protects the right to
property by defining the limitations on the power of the State to take away
private property without the consent of the owner. Clauses (1) and (2) of art.
31 are not mutually exclusive in scope and content, but should be read together
and understood as dealing with the same subject, namely the protection of the
right to property by means of limitations on the State's power referred to
above, the deprivation contemplated in clause (1) being no other than the
acquisition or taking possession of the property referred to in cl. (2).
The words "taking of ........ possession
or .... ....
acquisition" in art. 31(2) and' the
words "acquisition or requisitioning" in entry 589 No. 33 of List I
and entry No. 36 of List II as also the words "acquired or
requisitioned" in entry No. 42 of List III are different expressions
connoting the same idea and instances of different kinds of deprivation of
property within the meaning of art. 31(1) of the Constitution.
No cut and dried test can be formulated as to
whether in a given case the owner is "deprived" of his property
within the meaning of art. 31; each case must be decided as it arises on its
own facts. Broadly speaking it may be said that an abridgement would be so
substantial as to amount to a deprivation within the meaning of art.
31, .if, in effect, it withheld the property
from the possession and enjoyment of the owner, or seriously impaired its use
and enjoyment by him or materially reduced its value . The expression
"taking possession" in art 31(2) of the Constitution can only mean
such possession as the property taken possession of is susceptible to and need
not be actual physical possession.
' (ii) It is difficult to hold that the
abridgement sought to be effected retrospectively of the rights of a purchaser
at a revenue sale is so substantial as to amount to a deprivation of his
property within the meaning of art. 31(1) and (2). No question accordingly
arises as to the applicability of el. 5(b)(ii) of art. 31 to the Per DAs
J.--(1) The abridgement of the rights of the purchaser at a revenue sale
brought about by the new s. 37 amounts to nothing more than the imposition of a
reasonable restriction on the exercise of the right conferred by art.
19(1)(f)in the interests of the general public and is perfectly legitimate and
permissible under cl. (5) of that article. It is well-settled that the
statement of objects and reasons is not admissible as an aid to the
construction of a statute but it can be referred to only for the limited
purpose of ascertaining the conditions prevailing at the time which actuated
the sponsor of the Bill .to introduce the same and the extent and urgency of
the. evil which he. sought to remedy. Those are matters which must enter into
the judicial verdict as to the reasonableness of the restrictions which art.
19(5) permits to be imposed on the exercise
of the right guaranteed by art. 19(1)(f).
(II) The correlation between art. 19(1)(f)
and art. 31 is that if a person loses his property by reason of its having been
compulsorily acquired under art. 31 he loses his right to hold that property
and Cannot complain that .his fundamental right under art. 19(1)(f)has been
infringed. The rights enumerated in art. 19(1) subsist while the citizen has
the legal capacity to exercise them.
A.K. Gopalan's case [1950] S.C.R. 88 and
Chiranjit Lal's case [1950] S.C.R. 869 referred to.
590 For the purpose of this appeal the.
matter proceeds on the footing that art. 19 relates to abstract right as well
as to right to concrete property. .
(III) The true scope and effect of cls. (1)
and (2) of art.
31 is that cl. (1) deals with deprivation of
property in exercise of police power and enunciates the restrictions which our
Constitution makers thought necessary or sufficient to be placed on the
exercise of that power, namely, that such power can be exercised only by
authority of law and not by a mere executive fiat and that cl. (2)deals with
the exercise of the power of eminent domain and places limitations on the
exercise of that power. These limitations constitute our fundamental rights'
against the State's power of eminent domain.
(IV) Both these clauses cannot be regarded as
concerned only with the State's power of eminent domain, because then- (a) cl
(1) would be wholly redundant, for the necessity of a law is quite clearly
implicit in cl. (2) itself;
(b) deprivation of property otherwise than by
taking of possession' or acquisition of it will be outside. the pale of
constitutional protection:
(c) there will be no protection against the
exercise of police power in respect of property either by the executive or by
the legislature.
Chiranjit Lals case [1950] S.C.R. 869 and The
Bihar Zamindari case [1952] S.C.R. 889 referred to.
(V) The State's police power is not
confined-- (a) within the ambit of art. 19 for to say otherwise ,will mean:
(i) that there is no protection for any
person, citizen or non-citizen, against exercise of police power by the
executive over property;
(ii) that although in cls. (2) to (6) there
is protection against' (iei) legislature in respect of "restriction"
there is no protection against "deprivation"; or (h) within d. (5)
(b) of art. 31 because to say otherwise will mean :__ (i) that the police power
which is inherent in sovereignty and does not require express reservation has
been unnecessarily defined and reserved;
(ii) that the Constitution does not prescribe
any test for the 'validity of the laws which fail within the clause and,
therefore, the law failing within the clause may be as archaic, offensive and .
unreasonable as the legislature may choose to make it;
(iii) that the clause gives no protection
against the executive; (iv) that the exercise of the police power by the
legislature is confined within' the very narrow and inelastic limits of the
clause and that no beneficial or social legislation involving taking 591 of
property can be undertaken by the State if the law-falls outside the clause
except on terms of payment of compensation;
(v) that acqUiSition Of property for which
compensation is Usually provided, e.g.; acquisition of land for a public park,
hospital Or z'dearing a slum area will henceforth be permissible without the
law providing any compensation;
(VI) The argument that if art. 31(1) is read
as a fundamental right against deprivation of property by the executive and
art., 31(2) as laying down the Iimits of State's power of eminent domain then
there will be no real protection. whatever, for the State will deprive a person
of his property without compensation by simply making a law is not tenable
because-- (i) there will certainly be protection against the execute just as
the 29th clause of the Magna Charts was a protection against the British Crown;
(ii)"'there is protection under art.
31(2) against the legislature in the matter of taking of possession Or.
acquisition for compensations to be given and
under cl.
(5) of art, 19 against unreasonable'
restraint:
(iii) the absence of protection against the
legislature in other cases is not greater than the absence of protection
against the legislature in respect of taxation and if the legislature can be
trusted in the latter case it may equally he' trusted in the former case.
(VII) Every taking of a thing into the
custody of the State or its nominee does not necessarily mean the taking of
possession Of that thing within the meaning of art 31(2) so as to call for
compensation. The police power is exercised in the interest of the community
and the power of eminent-domain is exercised to . implement a public purpose
and in both cases there is a taking of possession of private, property There is
however a marked difference between the exercise of these two sovereign powers.
It is easy to perceive, though somewhat difficult to express, the .distinction
between the two kinds of taking of possession which undoubtedly exists. In view
of the wide sweep of the State's police power it is neither desirable nor
possible to lay down a fixed general test for determining whether the taking of
possession authorised by any particular. law falls within one category or the
other. Without, therefore, attempting any such 'general enunciation of any
inflexible rule it is possible to say broadly that the aim, purpose and the
effect of the two kinds of taking of possession are different and that . in
each "case the provisions of. the particular law in question" will
have to' be carefully scrutinised in order to determine in which category-'
falls the taking of possession authorised by such law. = A consideration of the
ultimate aim, the immediate purpose ::and the mode and manner of the taking 'of
possession and, the duration".' for which such possession ..is taken, the
effect of' it '-on the rights of 'the person dispossessed and other such like
elements must all determine the judicial verdict.
592 (VIII) Treating the right to annul
under-tenures and to eject under-tenants .and decree for ejectment as
"property" as used in art. 31(2) the State has not acquired those
rights for there has been no transfer by agreement or by operation of law of
those rights from the respondent B to the State or anybody else. The purchase
being at a Revenue sale to. which West Bengal Act VII of 1950 applies, the
purchaser of the property has been deprived of this right by authority of law
and the case falls within cl. (1) of art. 31 and no Within cl.
(2) of art. 31. If the impugned section is
regarded as imposing restrictions on the purchaser, such restrictions in the circumstances
of the case are quite reasonable and permissible under article 19(5) and, in
the premises, the _plea of unconstitutionality cannot prevail and must be
rejected.
Pet' JAGANNADHADAS J.--(i) On the assumption
that the question raised in this case is one that arisesunder art. 19(1)(f)and
(5) of the Constitution, the impugned section of the West Bengal Act VII of
1950 is intra vires because the restrictions are reasonable within the meaning
of art. 19(5) of the Constitution;
(ii) that art. 19(1)(f) while probably meant
to relate tot he natural rights of the citizens comprehends within the scope
also concrete property rights. The restrictions on the exercise of rights
envisaged in art. 19(5) appear to relate--normally, if not invariably-to
concrete property rights;
(iii) that cl. (1).of art. 31 cannot be
construed as being either a declaration or implied recognition of the American
doctrine of "police power".
It comprehends within its scope the
requirement of the authority of law, as distinguished from executive fiat for
the exercise of the power of eminent domain, but its scope may well be wider.
"Acquisition" and "taking possession" in art. 31(2) cannot
be taken as necessarily involving transfer of tide or possession. The words or
phrases comprehend all cases where the title or possession is taken out of the
owner and appropriated without his consent by transfer or extinction or by some
other process, which in substance amounts to it, the possession in this context
meaning such possession as the nature of the property admits and which the law
recognizes as possession.
(iv) In the context of art. 31(2) as in the
cognate context article 19(1)(f)--the connotation of the word
"property" is limited by the accompanying words
"acquisition" and "taking possession". In the present. case
the right to annul under-tenures cannot in itself be treated as property for it
is not capable of independent acquisition or possession. The deprivation of it
can only amount to a restriction on the exercise of the fights as regards the
main property itself and hence must fall under art.
19(1)(f) taken with 19(5).
593 . Butchers Union etc. Co. v. Crescent
City etc. Co., (111 U.S. 746), Punjab Province v. Daulat Singh and Others
([1946] F.C.R. 1), Chiranjit Lal Chauduri v. The Union of India and Others
([1950] S.C.R. 869), A.K. Gopalan v. The State of Madras ([1950] S.C.R. 88),
P.D. Shamdasani v.
Central Bank of India ([1952] S.C.R. 391),
Ministry of State. for the Army v. Dalziel (68 C.L.R. 261), Pennsylvania Coal
Co. v. Mahou (260 U.S. 322), Dwarkadas Shrinivas v. Sholapur Spinning and
Weaving Mills Ltd.
([1954] S.C.R. 674),' State of Madras v. V.G.
Row ([1952] S.C.R. 597), Ram Singh v. The State of Madras ([1951] S.C.R. 451),
State of Bihar v. Maharajadhiraja Kameshwar Singh of Darbhanga ([1952] S.C.R.
889), Noble State Bank v.
Haskeli (219 U.S. 104), Eubank v. Richmond
(226 U.S. 137), Ioseph Hurtado V. People of California (1883) (10 U.S. 516),
referred to..
CIVIL APPELLATE JURISDICTION: Civil Appeal
No.
107 of 1952.
Appeal from the Judgment and Order dated 22nd
March, 1951, of the High Court of Judicature at Calcutta (Harries C.J. and
Banerjee J.) in Reference No. 4 of 1950 .in .Civil Rule No. 1643 Of 1950.
M.C. Setalvad, Attorney-General for India'
(B. Sen, with him) for the appellant.
Atul Chandra Gupta (Jay Gopd Ghose, with him)
for respondent NO. 1.
1953. December 17. The following Judgments
were delivered.
PATANJALI SASTRI C.J.--This appeal raises
issues great public and private importance regarding the extent of protection.
which the . Constitution of India accords to ownerships of private property.
The first respondent herein (hereinafter
referred to as the respondent) purchased the entire Touzi No. 341 of the
24-Parganas Collectorate at a revenue sale held on ,January 9, 1942. As such
purchaser, the respondent acquired under section 37 of the Bengal Revenue Sales
Act, 1859 (Central Act No. 11 of 1859) the right "to avoid and annul all
under-tenures and forthwith to eject all under- tenants"-with certain
exceptions which are not material here. In exercise of that right the
respondent gave notices of ejectment and brought a suit in 1946 to evict
certain under-tenants, including the second respondent herein, and to recover
possession 594 of. the lands. The suit was. decreed against the second
respondent who preferred an appeal to the District Judge, 24-Parganas,
Contending that his undertenure came within one of the exceptions referred to
in section 37.
When the appeal was pending, the Bill, which
was later passed as the West Bengal Revenue Sales (West . Bengal Amendment)
Act, 1950, (hereinafter referred to as"the 'amending Act") was
introduced in the West Bengal 'Legislative Assembly on March 23, 1950. It would
appear, according to the ."statement 0f objects and reasons" annexed
to the Bill, that great hardship was being caused to a large section of the
people by the.
application of section 37 of the Bengal Land
Revenue Sales Act, 1859, in the urban areas and particularly in Calcutta and
its suburbs where "the present phenomenal increase in land values has
supplied the necessary incentive to speculative purchasers in exploiting this
provision .(section 37) of the law for unwarranted large- scale eviction"
and it was, therefore,. considered necessary to enlarge the scope of protection
already given by the section to certain categories of tenants with due
safeguards for the security Of Government revenue.
The Bill was eventually passed as the
amending Act and it .came into force on. March 15, 1950. It substituted by section
4 'the' new section 37 in the place of the original section 37, and' it
provided by section 7 that all pending suits, appeals and other proceedings
which had not already resulted in delivery of possession shall' abate.,
Thereupon, the respondent, contending that section 7 was' void as a briging his
fundamental fights under article 19(1) (f) and article 31, moved the High Court
'under article 228 to withdraw the pending appeal and determine the
constitutional issue .'raised by him. The appeal accordingly. withdrawn 'and
the case was heard by Trevor Harries C.J. and Banerjee J.. who, by separate
but, concurring 'judgments, declared section 7 unconstitutional and void
'::and. returned the :case: to the District Court 'for: disposal, in conformity
595 with 'their decision. The learned Judges held that the respondent's right
to annul under-tenures and evict under-tenants being a vested right acquired by
him under his purchase before section 37 was amended, the retrospective
deprivation of that right by section 7 of the amending Act without any
abatement of the price paid by the respondent at the revenue sale was an
infringement of his fundamental right under article 19(1) (f) to hold property
with all the rights . acquired under his purchase, and as such deprivation was
not a reasonable restriction on the respondent's exercise of his vested right,
section 7 was not saved by clause (5) of that article and was void.
On behalf of the appellant State the learned
Attorney-General contended before uS that if, as the respondent claims, his
right to annul under-tenures and.
evict under-tenants in occupation other than
those protected under the original enactment, was "property'" within
the meaning of clause (1) Of article 19, then, it was also "property"
within the meaning of clause (1) of article 31, as the expression must have the
same'connotation in both the provisions, and the respondent,' having been
"deprived" of it under the authority of law, namely, section 7 of the
amending Act, such deprivation was lawful and could not be challenged. In
support of this contention learned counsel strongly relied on the observations
of my learned brother Das in Chiranjit Lal Choudhury's case(1 ) and' also on
the .analogy of the reasoning of the majority 'in ;Gopalan's case(z). Alternatively,
it was urged that if the correct view was that the nullification of the
respondent's right was only the imposition of a "restriction" on the
enjoyment of the property purchased by him, as .has been held by the learned
Judges. below, then, it was a reasonable restriction imposed in ,the' interests
of the general public under clause (5)of article 19, having regard to the facts
and circumstances which led to the enactment of the measure as . disclosed in
the Statement of Objects and (1) [1950] S.C. R: 869 " (2) [1950] 8. C.R.
88.
[1954] Reasons annexed to the Bill which, for
this purpose, is admissible.
It will be convenient to deal first with the
latter contention of the Attorney-General. Sub-clause (f) 0f clause (1) of
article 19 has, in my opinion, no application to the case. That article
enumerates certain freedoms under the caption "right to freedom" and
deals with those great and basic rights which are recognised and guaranteed as
the natural rights inherent in the status of a citizen of a free country. The
freedoms declared in sub- clauses (a) to (e) and (g) are clearly of that
description and in such context sub-clause (f) should, I think, also be
understood as declaring the freedom appertaining to the citizen of free India
in the matter of acquisition, possession and disposal of private property. In
other words, it declares the citizen's right to own property and has no
reference to the right to the property owned by him, which is dealt with in
article 31. Referring to the "privileges and immunities" mentioned in
article 4 and Amendment 14 of the American Federal Constitution, Bradley J.
said in Butchers Union etc. Co. v. Crescent City etc. Co.(1):
"The phrase has a broader meaning. It
includes those fundamental privileges-and immunities which belong essentially
to the citizens of every free government, among which Washington J. enumerates
the' right of protection;
the right to pursue and obtain happiness and
safety;
the right to pass through and reside in any
State 'for the purposes of trade, agriculture, professional pursuits or
otherwise; to claim the benefit of the wnt of habeas corpus; to institute and
maintain actions of any kind in the courts of the State and to take, hold and
dispose of property either real or personal. (Corfield v. Coryell, 4 Wash.
(C.C.) 371). These rights are different from the concrete fights which a man
may have to a specific chattel or a piece of land or to the performance by
another of a particular contract, or to damages of a particular wrong, all
which may be invaded by individuals; they are the capacity, power or privilege
of having and enjoying (1) 111 U. 8. 746.
597 those concrete rights and of maintaining
them in the courts, which capacity, power or privilege can only be invaded by
the State. These primordial and fundamental rights are the privileges and
immunities citizens which are referred to in the 4th article of the
Constitution and in the 14th Amendment to it." (Italics mine).
We are not here concerned with the meaning
and content of the phrase" privileges and immunities" in the context
of those provisions which, according to some of the Judges, have a reference
only to those privileges and immunities which owe their existence to the
Federal Constitution or its laws. What is of importance for the present purpose
is that the two learned Judges thought that the "right to take, hold and
dispose of property" was one of those "primordial and fundamental
rights" of the same class' as the right to pursue happiness and safety and
other such basic freedoms appertaining to free citizens and was different from
the concrete rights which a person may have to a specific res or thing owned,
being the capacity, power or privilege of having and enjoying those concrete
rights. Sub-clause (f) of clause (1) of article 19 seems analogous to clause
(1) of article 17 of the United Nations Declaration of Human Rights
"Everyone has the right to own property alone as well as in association
with others" and article 31 to clause (2) of article 17 "No one shall
be arbitrarily deprived of his property." I have no doubt that the framers
of our Constitution drew the same distinction and classed the natural right or
capacity of a citizen "to acquire, hold and dispose of property" with
other natural rights and freedoms inherent in the status of a free citizen and
embodied them in article 19(1), while they provided for the protection of
concrete rights of property owned by a person in article 31. The meaning of the
phrase," to acquire, hold and dispose of property" as well as the
nature of the subject matter to which it has reference in the sense indicated
above, is also clear from the terms of sections 111 and 298 of the Government
of India Act, 1935, where the same phrase is used 598 in prohibiting imposition
of "disability" on grounds of religion, place of birth, .descent,
colour or any of them on a British subject domiciled 'in the United Kingdom and
on an indian subject of His Majesty determined, in the case of citizens and
non-citizens not deal with expropriation of specific property belonging to such
persons which is dealt with in section 299.
There are difficulties in the way of
accepting the view of the learned Judges below that article 19 (1) (f) and 19
(5) deal with the concrete rights of property and the restraint to which they
are liable to be subjected.
In the first place, it will be noticed that
sub-clause (f) of clause (1) of article 19 deals only with the rights of
citizens, whereas article 31 deals with the rights of persons in general. If
article 31, which is headed by the caption "right to property", was
designed to protect property rights of citizens as well as non- citizens, why
was it considered necessary to provide for the protection of those rights in
sub-clause (f) of clause (1) of article 19 also ? I do not think that our
Constitution-makers could have intended to provide a double-barrelled
constitutional protection to private property. Moreover, right to
"acquire" and "dispose of" property could only refer to the
capacity of a citizen.
The word "hold", which is inserted
between those two words must, in my opinion, be understood to mean
"own", and not as having reference to something different, viz.,
rights to specific things owned by a citizen ? I see no force in the objection
that unless sub- clause (f) of clause (1) of article 19 read with clause (5) is
construed as relating to concrete property rights also, the legislature would
have the power to impose even unreasonable restrictions on the enjoyment of
private property by citizens. It is difficult to believe that the framers of
our Constitution could have intended to differentiate between citizens and
non-citizens in regard to imposition of restrictions on enjoyment of private
property. Such restrictions are imposed in exercise of the power inherent in
the State to regulate private rights of property when they 599 are sought to be
exercised to 'the injury of others having similar rights, and the, measure of
restriction imposed. in exercise of such regulative power must be determined,
in the case of citizens and non-citizens alike, by the necessity of protecting
the community. On the other hand, differential treatment of citizens and
non-citizens would be perfectly intelligible if sub clause (f) of clause (1) of
article 19 and clause (5) are understood as dealing only with the freedom or
capacity to acquire, hold and dispose of property in general, for, it would be
justifiable to exclude aliens from such freedom, as has been done in several
countries for the benefit of their own nationals, particularly in respect of
land. Moreover, both by the preamble and the directive principles of State
policy in Part IV, our "Constitution has set the goal of a social welfare
State and this must involve the exercise of a large measure of social control
and regulation of the enjoyment of private property. If concrete rights of
property are brought within the purview of article 19(1)(f), the judicial
review under clause (5)as to the reasonableness of such control and regulation
might have an unduly hampering effect on legislation m that behalf, and the
makers of our Constitution may well have intended to leave the Legislatures
free to exercise such control and regulation in relation to the enjoyment of
rights of property, providing only that if such regulation reaches the point of
deprivation of property the owner should be indemnified under clause (2) of
article 31 subject to the exceptions specified in para. (ii) of sub-clause (b)
of clause (5) of article 31.
'Nor am I much impressed with the suggestion
that the reference to "exercise" in clause (5) of article 19 of the
rights conferred by sub-clause (f) of clause (1) indicates that' the' latter
rights must be fights of property.
Clause (5) could as well contemplate
restrictions on the excercise of a citizen's freedom to acquire, hold and dispose
of property, as for instance, banning acquisition of land in a givien locality,
say a tribal area, or putting a ceiling on the quantum of land that a citizen
can hold, or restricting alienation of land to specified classes of persons
only (of. Punjab Province v. Daulat Singh and Other (1) and the reasonableness
of such restrictions being brought under judicial review. For all these
reasons, I am of opinion that under the scheme of the Constitution, all those
broad and basic freedoms inherent in the status of a citizen as a free man are
embodied and protected from invasion by the State under clause (1)of article
19, the powers of State regulation of those freedoms in public interest being
defined in relation to each of those freedoms by clauses (2) to (6) of that
article, while rights of private property are separately dealt with and their
protection provided for in article 31, the cases where social control and
regulation could extend to the deprivation of such rights being indicated in
para. (ii)of subclause (b) of clause (5) of article 31 and exempted from
liability to pay compensation under clause (2). On this view, no question of
correlating article 19 (1) (f) with article 31 could arise and the analogy of
Gopalan's case has no application. On this view, the question whether section 7
0/3 the amending Act is a reasonable restriction on the exercise of the respondent's
right to the property purchased by him could not also arise, as' clause (5) of
article 19 could then have reference only to disabilities of the kind already
mentioned.
Turning next to the' contention based on
article 31 (1), it Was put thus in the language of Das J. in Chiranjit Lal
Choudhury's case( ) which the learned Attorney-General fully adopted:
"Article 31(1) formulates the
fundamental right in negative form prohibiting the deprivation of property
except by authority of law. It implies that a person may be deprived of his
property by authority of law. Article 31(2) prohibits the acquisition or taking
possession of property for a public purpose under any law, unless such law
provides for payment of compensation. It is suggested that clauses (1) and (2)
0f article 31 deal with the same topic, namely, compulsory acquisition or
taking possession 0f property, clause (2) being only an elaboration of clause
(1). There appear (1) [1946] F.C .R. 1 CP. C.).
(2) [1950] S.C.R. 869, 924. , 601 to me to be
two objections to this suggestion.If that were the correct view, then clause
(1) must be held to be wholly redundant and clause (2), by itself, would have
been sufficient. In the next place such a view would exclude deprivation of
property otherwise than by acquisition or taking of possession. One can
conceive of circumstances where the State may have to deprive a person of his
property without acquiring or taking possession of the same. For example, in
any emergency, in order to prevent a fire spreading, the authorities may have
to demolish an intervening building. This deprivation of property is supported
in the United States of America as an exercise of "police power".
This deprivation of property is different from 'acquisition or taking of
possession of property which goes by the name of "eminent domain" m
the American law. The construction suggested implies that our Constitution has dealt
with only the law of "eminent domain", but has not provided for
deprivation of property in exercise of "police powers". I am not
prepared to adopt such construction, for I do not feel pressed to do so by the
language used in article 31. On the contrary, the language of clause (1) of
article 31 is wider than that of clause (2), for deprivation of property may
welt be brought about otherwise than by acquiring or taking possession of it. I
think clause (1) enunciates the general principle that no person shall be
deprived of his property except by authority of law, which, put in a positive
form, implies that a person may be deprived of his property, provided he is so
deprived by authority of law. No question of compensation arises under clause
(1).
The effect of clause (2) is that only certain
kinds of deprivation of property, namely those brought about by acquisition or
taking possession of it, will not be permissible under any law, unless such law
provides for payment of compensation. If the deprivation of property is brought
about by means other than acquisition or taking possession of it, no
compensation is required, provided that such deprivation is by authority of
law." I have made this lengthy extract in order to avoid possible
unfairness in summarising it. These 2-9 S.C.I./59 602 observations were made
while rejecting an argument of the petitioner in that case, which, however, the
learned Judge decided in his favour on another point, and are thus purely
obiter. With all respect-to my learned brother I am unable to share the view
expressed by him. He reads clauses (1) and (2)as mutually exclusive in scope
and content, clause (2) imposing limitations only on two particular kinds of
deprivation of private property, namely, those brought about by acquisition or
taking possession thereof, and clause (1). authorising all other kinds of
deprivation with no limitation except that they should be authorised by law.
There are several objections to the acceptance of this view. But the most
serious of them all is that it largely nullifies the protection afforded by the
Constitution to rights of private property and, indeed, stultifies the very
conception of the "right to property" as a fundamental right. For, on
this view, the State, acting through its legislative organ, could, for
instance, arbitrarily prohibit a person from using his property, or authorise
its destruction, or render it useless for him, without any compensation and
with-out a public purpose to be served thereby, as these two conditions are
stipulated only for acquisition and taking possession under clause (2). Now,
the whole object of Part Iii of the Constitution is to provide protection for
the freedoms and rights mentioned therein against arbitrary invasion by the
State, which as defined by article 12 includes the Legislatures of the country.
It would be a startling irony if the fundamental rights of property were, in
effect, to be turned by ,construction into an arbitrary power of the State to
deprive a person of his property without compensation in all ways other than
acquisition or taking possession of such property. If the Legislatures were to
have such arbitrary power, why should compensation and public purpose be
insisted upon in connection with what are termed two particular forms of
deprivation ? What could be the rational principle underlying this
differentiation ? To say that clause (1) defines the "police power"
in relation to rights of property is no satisfactory answer, as the Same power
603 could as well have been extended to these two particular kinds of
deprivation. Such extension would at least have avoided the following anomaly compensation
is paid to indemnify the owner for the loss of his property. It could make no
difference to him whether such deprivation was authorised under clause (1)or
clause (2). In either case his property would be gone and he would suffer loss.
It would matter little to him what happened to the property after he was
deprived of it--whether it was used for a public purpose or was simply
destroyed without any public purpose being served. In fact, he could more
readily reconcile himself to the loss forced upon him if he found his property
being used for the public benefit; for, in that case, he would be participating
in that benefit as a member of the public. But that consolation would be denied
to him by deprivation under clause (1), which makes his 0loss all the more
grievous. But, according to Das J.s. reading of that clause, the
Constitution-makers have provided for no indemnification of the expropriated
owner. Why ? Because, it is said, deprivation under clause (1) is an exercise
of "police power." This, to my mind, is fallacious. You first
construe the clause as conferring upon the State acting through its Legislature
unfettered power to deprive owners of their property in all other cases except
the two mentioned m clause (2), and then seek to justify such sweeping and
arbitrary power by calling it "police power." According to Das J.
clause (1) was designed to confer "police power" on the State to
deprive persons of their property by means other than acquisition or taking
possession of such property.
He would read the clause in a positive form
as implying that a person may be deprived of his property by authority of law.
In other words, the framers of our Constitution, who began Part Ill by
formulating the fundamental rights of individuals against invasion by the
Legislatures in the country, ended by formulating the right of the Legislatures
to deprive individuals of their property without compensation.
604 Speaking of police power, as applied to
personal liberty, Prof. Willis says( 1 ):
There are two main requirements for a proper
exercise of the police power--(1) there must be a social interest to be
protected which is more important than the social interest in personal liberty,
and (2) there must be, as a means for the accomplishment of this end, something
which bears a substantial relation there to.
This statement is equally true of police
power as applied to private property. This is recognised and given effect to in
clauses (2) to (6) of article 19 which delimit the regulative power of the
Legislatures as applied to the freedoms enumerated in clause (1)of that article
including the freedom referred to in sub-clause (f). But clause (1) of article
31 imposes no such limitations. Why should such absolute power be conferred on
the Legislature in relation to private property, whereas the exercise of
restrictive power under clauses (2) to (6) of article 19 is carefully limited
to specified purposes and to the imposition of only reasonable restrictions in
each of those cases ? Could it have been intended that, while restriction
imposed on the freedoms mentioned in clause (1) of article 19 should be
reasonable and in public interest, deprivation of property, except in the two
cases provided for in clause (2) of article 31, need not be reasonable nor for
the public benefit ? To say that the requirement of "authorisation by
law" was considered sufficient limitation in all other cases of
deprivation takes no note of the fact that in the case of restrictions under
clauses (2) to (6) of article 19 also, their authorisation could only be by law
and yet other limitations have been imposed. In fact, authorisation by law can
obviously be no limitation on the Legislature, and "police power", as
developed in the American case law, is essentially a legislative power.
Now, what is this "police power"
and how does the Constitution of India provide for its exercise by the State ?
Referring to the doctrine of police power (1) Constitutional Law, p. 728.
605 in America, I said in Gopalan's case(1):
"When that power (legislative power) was threatened with prostration by
the excesses of due process, the equally vague and expansive doctrine of
"police power", i.e., the power of Government to regulate private
rights in public interest, was evolved to counteract such excesses" And
Das J. (1), said that the content of due process of law had to be narrowed down
by the "enunciation and application of the new doctrine of police power as
an antidote or palliative to the former". This court held in the aforesaid
case that the framers of our Constitution definitely rejected the doctrine of
due process of law. Is it to be supposed that they accepted the
"antidote" doctrine of police power and embodied it in clause(1) of
article 31 as a specific power conferred on the Legislatures to deprive persons
of their property ? The suggestion seems unwarranted and, indeed, contrary to
the scheme of our Constitution. That scheme, in marked contrast with the Constitution
of America, is to distribute legislative powers among the Union and the State
Legislatures according to the Lists of the Seventh Schedule and among such
powers was included the power of "acquisition or requisitioning of
property" for Union and State purposes in entry No. 33 of List I and No.
36 of List II respectively. Thus, what is called the power of eminent domain,
which is assumed to be inherent in the sovereignty of the State according to
Continental and American jurists and is accordingly not expressly provided for
in the American Constitution, is made the subject of an express grant in our
Constitution. Having granted the power in express terms, the Constitution
defines in article 31 the limitations on the exercise thereof as constituting
the fundamental right to property of the owner, all fundamental rights of the
people being restraints on the State [see observations at page 198 in Gopalan's
case(1)]. But the power of social control and regulation of private rights and
freedoms for the common good (1) [1950] S.C.R. 88, 200.
(2) [1950] S.C.R. 88, 313.
606 being an essential attribute of a social
and political organisation otherwise called a State, and pervading, as it does,
the entire legislative field, was not specially provided for under any of the
entries in the legislative Lists and was left to be exercised, wherever
desired, as part of the appropriate legislative power. Even where such
regulative powers are defined and delimited, as for instance in clauses (2) to
(6) of article 19 in relation to the rights and freedoms specified in clause
(1), the powers themselves are left to be exercised under laws made with
respect to those' matters. For example, the power of social control and
regulation as applied to freedom of speech and expression is exercisable under
a law made with respect to entry No. 1 of List II (Public Order) or entry No.
39 of List III (Newspapers, books and printing presses) and in relation to a
freedom not falling under clause (1) of-- article 19, like the freedom to drink
or to eat what one likes, such freedom can be restrained or even prohibited
under a law made with reference to entry No. 8 of List II (Intoxicating
liquors, etc.) or entry No. 19 of List III (Drugs and poisons). Thus the
American doctrine of police power as a distinct and specific legislative power
is not recognised in our Constitution and it is therefore contrary to the
scheme of the Constitution to say that clause (1) of article 31 must be read in
positive terms and understood as conferring police power on the Legislature in
relation to rights of property. I entirely agree with the observations of
Mukherjea J. in Chiranjit Lal's case(1 ), that "In interpreting the
provisions of our Constitution we should go by the plain words used by the
Constitution makers and the importing of expressions like 'police' power',
which is a term of variable and indefinite connotation in American law, can
only make the task of interpretation more difficult." The correct
approach, in my opinion, to the interpretation of article 31 is to bear in mind
the context and setting in which it has 'been placed. As already stated, Part
III of the Constitution is designed to afford protection to the freedoms and
rights mentioned (1) [1950] S.C.R. 869, 907 607 therein against inroads by the State
which includes the Legislatures as well as the executive Governments in the
country. Though, as pointed out in Gopalan's case (1) citing Eshukbayi Eleko v.
Officer Administering the Government of Nigeria( 2 ), protection against
executive action is not really needed under systems of Government based on
British jurisprudence according to which no member of the executive can
interfere with the liberty or property of a subject except in pursuance of
powers given by law, our Constitution-makers, who were framing a written
Constitution, conferred such protection explicitly by including the executive
Governments of the Union and the States in the definition of "the
State" in article 12. A fundamental right is thus sought to be protected
not only against the legislative organ of the State but also against its
executive organ. The purpose of article 31, it is hardly necessary to emphasis,
is not to declare the right of the State to deprive a person of his property
but, as the heading of the article shows, to protect the "right to
property" of every person. But how does the article protect the right to
property ? It protects it by defining the limitations on the power of the State
to take away private property without the consent of the owner. It is an
important limitation on that power that legislative action is a pre-requisite
for its exercise. As pointed out by Cooley, "The right to appropriate
private property to public uses lies dormant in the State, until legislative
action is had, pointing out the occasions, the modes, conditions, and agencies
for its appropriation. Private property can only be taken pursuant to
law"(3). In England the struggle between prerogative and Parliament having
ended in favour of the latter, the prerogative right of taking private property
became merged in the absolutism of Parliament, and the right to compensation as
a fundamental right of the subject does not exist independently of
Parliamentary enactment. The result is that Parliament alone could authorise
interference with the enjoyment of private property.
(1) [1950] S.C.R 88.
(2) [1931] A C. 662.
(3) Constitutional Limitations, Vol. II, p.
1119.
608 Blackstone also says that it is the
Legislature alone that can interpose and compel the individual to part with his
property(1). It is this limitation which the framers of our Constitution have
embodied in clause (1) of article 31 which is thus designed to protect the
rights to property against deprivation by the State acting through its
executive organ, the Government. Clause (2) imposes two further limitations on
the Legislature itself. It is prohibited from making a law authorising
expropriation except for public purposes and on payment of compensation for the
injury sustained by the owner. These important limitations on the power of the
State, acting through the executive and legislative organs, to take away
private property are designed to protect the owner against arbitrary
deprivation of his property. Clauses (1) and (2) of article 31 are thus not
mutually exclusive in scope and content, but should, in my view, be read
together and understood as dealing with the same subject, namely, the
protection of the right to property by means of the limitations on the State
power referred to above, the deprivation contemplated in clause (1) being no
other than the acquisition or taking possession of property referred to in
clause (2).
Much argument was expended to show that
clause (2) dealt only with two specified modes of depriving a person of his
property, namely, acquisition and requisitioning and could not, therefore, be
considered to be a mere elaboration of clause (1), which referred to
deprivation generally. It was submitted that clause (2) should be read with
entry No. 33 of List I, No. 36 of List II and No. 42 of List III, each of which
refers to acquisition or requisitioning of property and to no other mode of
deprivation. It was also pointed out that sub-section (2) of section 299 of the
Government of India Act, 1935, as well as entry No. 9 of List II of the Seventh
Schedule thereof referred only to compulsory acquisition of land for public
purposes, and it was not until the Bombay High Court held in Tan Bug Taim and
Others v. The Collector of Bombay anal Others (2), that rule 75(a) of the
Defence of India Rules (1) Commentaries, Vol. I, p, 110.
(2) I.L.R. 1946 Bom. 517.
609 under which a property situated in Bombay
was requisitioned was ultra vires on the ground that entry No. 9 of List II did
not confer on the Legislature the power of requisitioning, that such power
was-conferred on the Central Legislature by the India (Proclamations of
Emergency) Act, 1946 (9 and 10 Geo. V, Ch. 23). Attention was drawn to the
Regulations and Acts relating to compulsory acquisition of land in this country
including the Land Acquisition Act, 1894, all of which provided for the vesting
of the property acquired in the Government or in one of its officers, and it
was suggested that the framers of our Constitution, who must have been aware of
the difficulties arising out of the lacuna in the Government of India Act,
1935, in regard to the power of requisitioning, added the words "taken
possession of" in clause (2) and the word "requisitioning" in
the entries referred to above. It was, therefore, urged that the words
"acquired" or "taken possession of" should not be taken to
have reference to all forms of deprivation of private property by the State.
I see no sufficient reason to construe the
words "acquired or taken possession" used in clause (2) of article 31
in a narrow technical sense. The Constitution marks a definite break with the
old order and introduces new concepts in regard to many matters, particularly
those relating to fundamental rights, and it cannot be assumed that the
ordinary word "acquisition" was used in the Constitution in the same
narrow sense in which it may have been used in pre-Constitution legislation
relating to acquisition of land. These enactments, it should be noted, related
to land, whereas article 31(2) refers to movable property as well, as to which
no formal transfer or vesting of title is necessary. Nor is there any warrant
for the assumption that "taking possession of property" was intended
to :mean the same thing as "requisitioning property" referred to in
the entries of the Seventh Schedule. If that was the intention, why was the
word "requisitioning" not used in clause (2) as well ? It is
fallacious to suggest that unless "taking possession" is synonymous
with "requisitioning", the power to make a law 610 authorising the
taking of possession of property would be lacking because no entry in any of
the Lists of the Seventh Schedule confers that power. A specific entry in the
legislative Lists is no more necessary for conferring such power than for
conferring power to make a jaw authorising deprivation of property which clause
(1) of article 31 postulates. [See observations in P.D. Shamdasani v. Central
Bank of India(1)]. The word "acquisition" is not a term of art, and
it ordinarily means coming into possession of, obtaining, gaining or getting as
one's own. It is in this general sense that the word has been used in articles
9, 11 and 19(1) (f)and not as implying any transfer or vesting of title. In
Minister of State Jar the Army v. Dalziel(2 ) a Full Bench of the High Court of
Australia had to construe the scope of the legislative power with respect to
"acquisition" of property conferred on the Commonwealth Parliament by
section 51 (xxxi) of the Austrailan Constitution (63 and 64 Vic., Ch. 12),. and
the court decided by a majority that the power included the power to take possession
of property for a temporary purpose for an indefinite period. To say that
acquisition implies the transfer and vesting of title in the Government is to
overlook the real nature of the power of the State as a sovereign acting
through its legislative and executive organs to appropriate the property of a
subject without his consent. When the State chooses to exercise such power, it
creates title in itself rather than acquire it from the owner, the nature and
extent of the title thus created depending on the purpose and duration of the
use to which the property appropriated is intended to be put as disclosed in
the law authorising its acquisition. No formula of vesting is necessary. As
already stated, in the case of moveable property no formal transfer or vesting
of title apart from seizing it could have been contemplated And, what is more,
clause (5) (b) (ii) of article 31, which excepts any law made in future
"for the prevention of danger to life or property" from the
operation, of clause (2) shows that the latter clause, but for such exception,
would entail liability to pay compensation for deprivation by destruction,
which must therefore- (1) [1952] S.C.R. 391,394. (2) 68 C.L.R. 261.
611 be taken to fall within the scope of
clause (2), for a law made for the prevention of danger to life or property may
often have to provide for destruction of the property appropriate. I am of
opinion that the word "acquisition" and its grammatical variations
should, in the context of article 31 and the entries in the Lists referred to
above, be understood in their ordinary sense, and the additional words
"taking possession of" or "requisitioning" are used in
article 31(2) and in the entries respectively, not in contradistinction with,
but in amplification of the term "acquisition", so as to make it
clear that the words taken together cover even those kinds of deprivation which
do not involve the continued existence of the property after it is acquired.
They would, for instance, include destruction
which implies the reducing into possession of the thing sought to be destroyed
as a necessary step to that end. The expression "taking possession"
can only mean taking such possession as the property is susceptible of and not
actual physical possession, as "the interest in, or in any company owing,
any commercial or industrial undertaking", which is expressly included in
clause (2) of article 31, is not' susceptible of any actual physical occupancy
or seizure. It is, however, unnecessary here to express any concluded opinion on
the precise scope and meaning of the expression "shall be taken possession
of or acquired" in clause (2) except to say that it does not admit of
being construed in the same wide sense as the word "taken" used in
the Fifth Amendment of the American Constitution, but implies such an
appropriation of the property or abridgement of the incidents of its ownerships
as would amount to a deprivation of the owner. Any other interference with
enjoyment of private property short of such appropriation or abridgement would
not be compensable under article 31(2).
It will now be seen that the two objections
raised by Das J. to the view expressed above, namely, that 612 clauses (1) and
(2) must be read together and understood as dealing with the same topic, are
really baseless. The first objection is that clause (1) would then be
redundant. It would not be so because it embodies one of the three important
limitations on the exercise of the State power of deprivation of private
property, namely, the necessity for the legislative action as a condition
precedent to the exercise of the power and constitutes a protection against the
executive organ of the State. The second objection that the State's power in an
emergency to deprive a person of his property without payment of compensation,
as for example, to demolish an intervening building to prevent a conflagration
from spreading, would be excluded is equally baseless. Cases of that kind, as
we have seen, would fail within the exception in clause (5)(b)(ii), and no
compensation would be payable for the loss caused by the destruction of
property authorised under that clause. The learned Attorney-General suggested
that sub-clause (b) was inserted ex-abundante cautela as even without it no one
could have supposed that a law of the kind mentioned in that sub-clause would
fall under clause (2). There could have been no doubt, for instance, that the
power of taxation referred to in paragraph (i) of that sub-clause was a
distinct power. It is difficult to appreciate this argument. If the exceptions
in sub-clause (b) were so obvious that they need not have been explicitly
provided for, then equally must be second objection of Das J. fall to the
ground. To say that sub-clause (b)is introduced by way of abundant caution is
not to do away with the exceptions but to emphasise their existence aliunde.
Whether it was considered necessary to provide expressly that destruction of
private property under emergency conditions entails no liability to pay
compensation or whether the State's power to do so was so well established that
sub-clause (b)(ii)was really unnecessary and must be taken to have been
inserted ex abundante cautela, in either view, the second objection must
equally fail. The fact is that all the cases referred to in sub-clause (b) are
different forms 613 of deprivation of property and, as difficulties of
construction might arise in a written Constitution if they are not expressly
and specifically excepted from the requirement under clause (2) as to payment
of compensation, the framers have thought it necessary to insert clause (5)
(b).
Where was the necessity, it was asked, to
provide in clause (1) of article 31 for protection against the executive
government in the matter of compulsory acquisition of property by the State, as
no such protection is provided for in the case of the regulative powers
exercisable under article 19(2) to (6)? The answer is:
the same need apparently which dictated the
enactment of article 265 providing for similar protection in the matter of
taxation. In any case, this would be no more of an objection, if it be an
objection, to the view I have indicated above than to the other view which also
recognises the necessity for legislative action before a person could be
deprived of his property.
Attention was called' to article 38 as
showing that one of the goals set by the Constitution was the promotion of
social welfare, and it was urged that the attainment of that object as well as
the growing complexities of modern conditions of life must call for an expanding
power of social control and regulation, particularly in the sphere of the
enjoyment of private property and that the exercise of such power without
entailing liability to pay compensation ought not to be confined within the
narrow limits specified in article 31 (5) (b). This is a misconception. In the
first place, social welfare is not inconsistent with the ownership of private
property and does not demand arbitrary expropriation of such property by the
State without compensation. On the other hand, as pointed out by Blackstone
"The public good is in nothing more essentially interested than in the
protection of every individual's private rights as modelled by the municipal
law"(1). This is not an antiquated view. So modern a document as the Declaration
of Human (1) Commentaries Vol. I, p. 109.
614 Rights in the United Nations has
specifically provided for the protection of private property by including the
clause "No one shall be arbitrarily deprived of his" in article 17
and the framers of our Constitution have evidently proceeded on that view.
Secondly, the argument also overlooks that
clause (5) (b) was not intended to define and does not define exhaustively the
power of social control and regulation in relation to rights of private
property. It only limits the purposes for which the power could be exercised
without liability to pay compensation, though its exercise results in
deprivation of property in the sense already explained. But where its exercise
does not involve deprivation of property, no question of paying compensation
would arise, and the Legislatures in the country would, as already indicated,
be free to enact laws providing for the exercise of such power within the
fields marked out for them in the Legislative Lists. There is, therefore, no room
for the apprehension that article 31 (5)(b) would unduly cramp social control
and regulation of private property for the public good or would lead to any
alarming consequences to the safety of the community.
But why all this ado, it was asked, about protection
against deprivation of property by legislative action ? There is no such
protection provided in the Constitution against deprivation of property by the
Legislature exercising the power of taxation. Why then complain if there is no
protection against the Legislature authorising deprivation of property without
compensation under article 31(1) ? Our Constitution-makers, it was said,
trusted the Legislature, as the people of Great Britain trust their Parliament
which protects the Englishman's right to property. In ultimate analysis, is not
well-informed and organised public opinion the true and effective protection
against arbitrary action of the Legislature ? The argument has no force. So far
as the power of taxation is concerned, the Constitution recognises no
fundamental right to immunity from taxation and that is why presumably no
constitutional protection is provided against the exercise of that power. But
fundamental 615 rights under the Constitution stand on a different footing.
Indeed, the argument is a bold challenge to the policy of including a
declaration of such rights in Part HI of the Constitution. In Gopalan's
case(1), I said:
"Madison (who played a prominent part in
framing the First Amendment of the American Constitution) pointing out the
distinction, due to historical reasons, between the American and the British
ways of securing 'the great and essential rights of the people', observed Here
they are secured not by laws paramount to prerogative but by Constitutions
paramount to laws.'" This has been translated into positive law in Part
1I1' of the Indian Constitution.
There have always been two schools of opinion
regarding the efficacy of a declaration of fundamental rights in a
Constitution. Britain never believed in a formal declaration of such rights.
Referring to the ,demand of the Indian Delegation that the Parliamentary Bill
which was later passed as the Government India Act, 1935, should embody certain
fundamental rights, the Joint Parliamentary Committee observed(2 ):
"The question of so-called fundamental
rights, which was much discussed at the three Round Table Conferences, was
brought to our notice by the British India Delegation, many members of which
were anxious that the new Constitution should contain a declaration of rights
of different kinds, for reassuring minorities for asserting the equality of all
persons before the law, and for other like purposes; and we have examined more
than one list of such rights which have been compiled. The Statutory Commission
observe with reference to this subject:--'We are aware that such provisions
have been inserted in many Constitutions, notably in those of the European
States formed after the war Experience, however, has not shown them to be of
any great practical value. Abstract declarations are useless unless there exist
the will and means to make them effective.' With these (1)[1950] S.cR. 88, 198.
(2) Para. 366.
616 observations we entirely agree; and a
cynic might indeed find plausible arguments, in the history during the last ten
years of more than one country, for asserting that the most effective method of
ensuring the destruction of a fundamental right is to include a declaration of
its existence in a constitutional instrument." But the American view is
different. Answering a similar objection to the inclusion of a Bill of Rights
in the American Constitution, Jefferson said:
"But though it is not absolutely
efficacious under all circumstances, it is of great 'potency always, and rarely
inefficacious. A brace the more will often keep up the building which would
have fallen with that brace the less.
There is a remarkable difference between the
characters of the inconveniences which attend a declaration of rights, and
those which attend the want of it. The inconveniences of the declaration are,
that it may cram Government in its useful exertions. But the evil of this is
short-lived, moderate and reparable. The inconveniences of the want of a
declaration are permanent, affective, and irreparable. They are in constant
progressive from bad to worse. The executive in our Governments is not the
sole, it is scarcely the principal, object of my jealousy. The' tyranny of the
Legislatures is the most formidable dread at present, and will be for many
years." (Quoted in Cooley's Constitutional Limitations, 8th Edn.Vol. I, p.
535).
It is obvious that the .framers of our
Constitution shared the American view and included Part III in the Constitution
of India. It is, therefore, a wrong' approach to construe the articles of Part
III by pointing to the British way, which is more a traditional than a
constitutional way, of protecting the rights and liberties of the individual by
making Parliament supreme.
On this view of the meaning and effect' of
article 31, the question is whether section 7 read with section 4 of the
amending Act infringes the fundamental right of the respondent under that
article. These provisions 617 by their retrospective operation undoubtedly
abridge the respondent's rights of property by nullifying one of the incidents
of the estate purchased by him at the revenue sale, namely, the right to annul
certain kinds of under- tenures and evict certain classes of undertenants in
occupation of portions of the estate. Does such abridgement amount to
deprivation of property within the meaning of article 31 as interpreted above,
and, if so, does it fall within the exception in clause (5) (b) (ii) of that
article ? Now, the word "property" in the context of article 31 which
is designed to protect private property in all its forms, must be understood
both in a corporeal sense as having reference to all those specific things that
are susceptible of private appropriation and enjoyment as well as in its
juridical or legal sense of a bundle of rights which the owner can exercise
under the municipal law with respect to the user 'and enjoyment of those things
to the exclusion of all others. This wide connotation of the term makes it
sometimes difficult to determine whether an impugned law is a deprivation of
property within the meaning of article 31 (2), for, any restriction imposed on
the use and enjoyment of property can be regarded as a deprivation of one or
more of the rights theretofore exercised by the owner. The American courts have
experienced similar difficulty in deciding whether a given statutory
abridgement of the rights of the owner is an exercise of the-police power"
for which no compensation can be claimed, or a "taking" of property
within the meaning of the Fifth Amendment clause "Nor shall private
property be taken for public use without just compensation." "The
general rule at least" said Holmes J. in delivering the majority opinion
in Pennsylvania Coal Co. v. Mahon(1 ), "is that while property may be
regulated to a certain extent, if regulation goes too far, it will be
recognised as a taking." The vague and expansive doctrine of "police
power" and the use of the term "taken" in the Fifth Amendment
construed m a very wide sense so as to cover any injury or damage to property,
coupled with the equally vague (1) 260 U.S. 393.
3--95 S.G.I./59 618 and expansive concept of
"due process", allow a greater freedom of action to the American
courts in accommodating and adjusting, on what may seem to them a just basis,
the conflicting demands of police power and the constitutional prohibition of
the Fifth Amendment.
Under the Constitution of India, however,
such questions must be determined with reference to the expression "taken
possession of or acquired" as interpreted above, namely, that it must be
read along with the word "deprived" in' clause (1)and understood as
having reference to such substantial abridgement of the rights of ownership as
would amount to deprivation of the owner of his property. No cut and dried test
can be formulated as to whether in a given case the owner is "deprived"
of his property within the meaning of article 31; each case must be decided as
it arises on its own facts. Broadly speaking it may be said that an abridgement
would be so substantial as to amount to a deprivation within the meaning of
article 31 if, in effect, it withheld the property from the possession and
enjoyment of the owner, or seriously impaired its use and enjoyment by him, or
materially reduced its value.
The learned Judges of the High Court did not
consider the case from this point of view. As has been stated, they applied
article 19 (1) (f) and (5) and held that section 7 of the amending Act, by its
retrospective operation, imposed on the respondent's enjoyment of the property
purchased by him at the revenue sale restrictions which were not reasonable.
That view, for reasons already indicated, cannot be accepted and the matter has
to be looked at from the point of view of article 31 as interpreted above. A
comparison of the scope and effect of the old section 37 which is substituted
in its place by section 4 of the amending Act and which section 7 shows to be
clearly retrospective, discloses that, although the right of a purchaser to
annual under-tenures and evict under-tenants is curtailed by the new section 37
by enlarging the scope of the exceptions in the old section, it entitles the
purchaser, as a countervailing advantage, to enhance the rent payable by the
tenure holders and tenants 619 newly brought within the exception. The
purchaser is left free in other respects to continue in enjoyment of the
property as before. In other words, what the amending Act seeks to do is to
enlarge the scope of the protection provided by the exception in the old
section, as it was found to be inadequate, while conferring certain
compensating benefits on the purchaser. This amendment is in the line with the
traditional tenancy legislation in this country affording relief to tenants
whenever the tenancy laws were found, due to changing conditions, to operate
harshly on the tenant. I find it difficult to hold that the abridgement sought
to. be effected retrospectively of the rights of a purchaser at a revenue sale
is so substantial as to amount to a deprivation of his property within the
meaning of article 31 (1) and (2). No' question accordingly arises to the applicability
of clause (5) (b) (ii) to the case.
In the result, the appeal is allowed and the
judgment of the High Court is set aside. The first respondent will pay the
costs of this appeal incurred by the appellant here and in the lower Court.
MEHR CHAND MAHAJAN J.--For reasons given in
my judgment in Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Mills Ltd.,
(C.A. 141 of 1952)(1 ) I agree with my Lord the Chief Justice in his
construction of article 31 of the Constitution. I also concur in the conclusions
reached by him, and in his decision of the appeal.
DAS J.--I agree that this appeal must be
allowed but I have arrived at this conclusion by a different process of
reasoning. As the arguments advanced before us have raised very important
constitutional issues it is only right that I should give the reasons for my
decision in some detail.
The facts and circumstances leading up to the
present appeal are as follows:
At a revenue sale held on the 9th January,
1942, the respondent Subodh Gopal Bose purchased the entire Touzi No. 341
recorded in the collectorate of the (1) Reported infra.
620 permanently settled district of
24-Parganahs in West Bengal. At the date of that sale the auction-purchasers at
a revenue sale had, under section 37 of the Bengal Land Revenue Sales Act,
1859, 'as it then stood, certain rights as therein mentioned. That section ran
thus:
"37. The purchaser of an entire estate
,in the permanently-settled districts of Bengal, Bihar and Orissa, sold under
this Act for the recovery of arrears due on account of the same shall acquire
the estate free from all encumbrances which may have been imposed upon it after
the time of settlement; and shall be entitled to avoid and annul all
under-tenures and forthwith to eject all under-tenants, with the following
exceptions :-- First--Istimrari or Mukarrari tenures which have been held at a
fixed rent from the time of the permanent settlement.
Secondly--Tenures existing at the time of
settlement which have not been held at a fixed rent ,' Provided always that the
rents of such tenure shall be liable to enhancement under any law for the time
being in force for the enhancement of the rent of such tenures.
Thirdly--Talukdari and other similar tenure$
created since the time of settlement and held immediately of the proprietors of
estates and farms for terms of years so held, when such tenures and farms have
been duly registered under the provisions of this Act.
Fourthly--Leases of lands whereon dwelling
houses, manufactories or other permanent buildings have been erected, or
whereon gardens, plantations, tanks, wells, canals, places of worship or
burning or burying grounds have been made, or wherein mines have been sunk.
And such a purchaser as' is aforesaid shall
be entitled to proceed in the manner prescribed by any law for the time being
in force for the enhancement of the rent of any land coming within the fourth
class of exceptions above made, if he can prove the same to 621 have been held
at what was orginally an unfair rent, and if the same shall not have been held
at a fixed rent, equal to the rent of good arable land, for a term exceeding
twelve years; but not otherwise;
Provided always that nothing in this section
contained shall be construed to entitle any such purchaser as aforesaid to
eject any raiyat having a right of occupancy at a fixed rent or at a rent
assessable according to fixed rules under the laws in force, or to enhance the
rent of any such raiyat otherwise than in the manner prescribed by such laws,
or otherwise than the former proprietor, irrespectively of all engagements made
since the time of settlement, may have been entitled to do." In exercise
of his rights under the section set out above, the respondent Subodh Gopal Bose
annulled all' under-tenures and tenancies appertaining to the said Touzi and on
tile 18th March, 1946, instituted a suit, being Title Suit No. 35 of 1946, in
the Fourth Court of the Subordinate Judge at Alipore 24-Parganahs for the
ejectment of respondents Nos. 2 to 6, claiming that he was entitled to recover
possession of the lands in suit by virtue of the rights conferred on him by
section 37. The respondent No. 2, who was the defendant No. 1, alone contested
the suit. His defence was, inter alia, that he was a raiyat and as such
protected by the proviso to section 37. He' also claimed protection under the
fourth exception to that section. The learned Subordinate Judge who tried the
suit delivered his judgment on the 14th February, 1949. By that judgment he
overruled the contentions of the contesting defendant and passed a decree for
ejectment against him. He dismissed the suit against the other defendants (who
are now respondents Nos. 3 to 6), holding that they were not necessary parties
to the suit.
On the 25th March, 1949, the respondent No. 2
preferred an appeal, being Title Appeal No. 252 of 1949, before the District
Judge at Alipore, 24Parganahs. That appeal was transferred to the court of the
Additional District Judge for hearing. While 622 that appeal was pending the
West Bengal Legislature passed West Bengal Act VII of 1950, called the Bengal
Land Revenue Sales (West Bengal Amendment) Act of 1950, which received the
assent of the Governor of Bengal on the 15th March, 1950, and was published in
the Official Gazette on the day.
By section 4 of the amending Act, section 37
of the Bengal Revenue Sales Act, 1859, was replaced by a new section the
material part of which runs thus:
"37. (1) The purchaser of an entire
estate in the permanently settled districts of West Bengal sold under this Act
for the recovery of arrears due on account of the same, shall acquire the
estate free.
from all encumbrances which may have been
imposed after the time of settlement and shall be entitled to avoid and annul
all tenures, holdings and .leases with the following exceptions:
(a) tenures and holdings which have been held
from the time of the permanent settlement either free of rent or at a fixed
rent or fixed rate of rent,. and (b) (i) tenures and holdings not included in
exception (a) above made, and (ii) other leases of land whether or not for
purposes connected with agriculture or horticulture, existing at the date of
issue of the notification for sale of the estate under this Act:
Provided that notwithstanding anything
contained in any law for the time being in force or in any lease or contract no
person shall be entitled to hold under such a purchaser as is aforesaid any
tenure holding or lease coming within exception (b) above made, free Of rent or
at a low rent or at a rent or rate of rent fixed in perpetuity or for any
specified period unless the right so to hold has been expressly recognised
under any law for the time being in force by any competent civil or revenue
court; and the purchaser shall be entitled to proceed in the manner prescribed;
by any law for the time being in force for the 623 determination of a fair and
equitable rent of such tenure, holding or lease." Section 7 of the
amending Act provides as follows :-:
" 7. (1) (a) Every suit or proceeding
for the ejectment of any person from any land in pursuance of section 37 or
section 52 of the said Act, and (b) every appeal or application for review or
revision arising out of such suit or proceeding, pending at the date of the
commencement of this Act shall if the suit, proceeding, appeal or application
could not have been validly instituted, preferred or made had this Act been in
operation at the date of the institution, the preferring or the making thereof,
abate.
(2) Every decree passed or order made, before
the date of commencement of this Act, for the ejectment of any person from any
land in pursuance of section 37 or section 52 of the said Act shall, if the
decree or order could not have been validly passed or made had this Act been in
operation at the date of the passing or making thereof, be void ,' Provided
that nothing in this section shall affect any decree or order in execution
whereof the possession of the land in respect of which the decree or order was
passed or made, has already been delivered before the date of commencement of
this Act.
(3) Whenever any suit, proceeding, appeal or
application abates under sub-section (1) or any decree or order becomes void
under sub-section (2), all fees paid under the Court-fees Act, 1870, shall be
refunded to the parties by whom the same were respectively paid." It is
quite clear that under this section 7 the suit of the respondent Subodh Gopal
Bose must abate and the decree passed in his favour must become void if that
section be valid law and intra vires the Constitution of India.
On the 21st July, 1950, the respondent Subodh
Gopal Bose applied before the Additional District Judge before whom the' appeal
was pending to make 624 a reference under article 228 of the Constitution of
India for a decision of the question whether the provisions of section 7 were void
being ultra vires the Constitution.
The learned Additional District Judge by his
order dated the 16th September, 1950, dismissed that application.
On the 24th November, 1950,the respondent
Subodh Gopal Bose applied to the High Court under article 228 and eventually on
the 18th December, 1950, the High Court directedthe appeal to be transferred to
the High Court only for the decision of the constitutional point. The
proceedings were numbered as Reference Case No. 4 of 1950.
Notice having been given by the Court to the
Advocate- General of Bengal, the State of West Bengal appeared on the
Reference. On the 22nd March, 1951, the High Court held that section 7 imposed
an unreasonable restriction on the respondent Subodh Gopal Bose's right to hold
property and violated his fundamental right guaranteed by article 19 (1) (f)
read with article 19 (5) and was, therefore void under article 13 (1).
With this finding the High Court sent back
the records to the lower appellate court for disposal of the appeal in the
light of that finding. On the 30th November, 1951, the High Court gave leave to
the State of West Bengal to appeal to us. Hence the present appeal.
Section 7 of the amending Act, the validity
whereof is challenged before us, in terms, affects preexisting rights. According
to that section every suit or proceedings for ejectment under old section 37
and every appeal or application for review or revision arising out of such suit
or proceeding pending at the commencement of the amending Act is to abate if the
suit, proceeding, appeal or application could not have been validly instituted,
referred or made, had the amending Act been in operation at the date of such
suit, proceeding, appeal or application. Further, every decree passed or order
made before the commencement of the amending Act for the ejectment of any
person from land in pursuance of old section 37 is likewise to become void if
such decree or order could not' have been validly passed or made if the 625
amending Act had been in operation at the date of the decree or order. The
proviso, however, saves -decrees or orders in execution whereof possession had
been delivered before the commencement of the amending Act. It is, therefore, clear
that section 7 affects pre-existing rights by giving, in effect, retrospective
operation to section4 which has substituted, inter alia, the new section 37 for
the old section 37 of the Act of 1859. A cursory comparison of the language of
the old section 37 with that of the new section 37 will at once make it clear
that the substantial right given by the old sectionto the purchaser to avoid
and annul under-tenures and to eject under-tenants is no longer available to
him under the new section 37. Although the opening part of the new section 37
purports to give to the purchaser the right to avoid and annul the tenures
etc., that right, by reason of the wide sweep of exception (b), has, for all
practical purposes, ceased to exist. The new section 37 does not deprive the
purchaser of the physical property, namely, the estate purchased at the revenue
sale and he continues to be the owner of that property and can exercise and
enforce all the rights which his ownership gives him, except that he cannot, by
reason of the new section 37, avoid or annul the under-tenures etc. or eject
the under-tenants. In other words, out of the bundle of rights constituting the
ownership acquired by him under the old section 37, an item of important right
has been taken away, thereby abridging or restricting his ownership. The
respondent, Subodh Gopal Bose, contends that his fundamental right, under
article 19(1)(f) of the Constitution, namely his right to hold, that is to say,
his right to enjoy and exercise the full rights of ownership in relation to the
property acquired by him under the old section 37 has been I violated and,
therefore, section 7 which operates retrospectively and gives retrospective
operation to the new section 37 is ultra vires the Constitution and is void
under article 13(1).
The learned Attorney-General has not
seriously contended that the impugned section has not 626 prejudicially
affected the right given to the purchaser by the old section 37 but he
maintains that the abridgement of the rights of the purchaser at a revenue sale
brought 'about by the new section 37. amounts to nothing more than the
imposition of a reasonable restriction on the exercise of the right conferred
by article 19 (1) (f) in the interests of the general public and is perfectly
legitimate and permissible under clause (5) of that article. The High Court
repealled the above noted contention and held that the restriction was
unreasonable. The High Court based its conclusions on three things, namely, (1)
the retrospective operation of the impugned section, (ii) the absence of any
provision for the abatement of the purchase price and (iii) the failure of the
State to show any reason why the impugned section was introduced into the
amending Act. The learned Attorney-General submits that the first two elements
taken into consideration by the High Court are wholly irrelevant for the
purpose of determining whether the restriction imposed was reasonable in the
interest of the general public. Ordinarily a statute is construed prospectively
unless it is made retrospective by express words or necessary intendment; but,
the learned Attorney- General submits, the fact that a statute is expressly or
by necessary implication made retrospective, does not, by itself, furnish any
cogent reason for saying that the statute is prima. facie unfair and,
therefore, unreasonable. While I see some force in this argument I am,
nevertheless, not convinced that the fact of the statute being given
retrospective operation may not be properly taken into consideration in
determining the reasonableness of the restriction imposed in the interest of the
general public. Nor am I satisfied that the loss occasioned to the purchaser by
reducing, without any abatement of the 'purchase price, an estate in possession
into one in reversion may not also be taken into account in determining the
reasonableness of the restrictions permissible under article 19 (5). As said by
my Lord the Chief justice in The State of Madras v. V.G.
Row(1) (I) [1952] S.C.R. 597 at 7.607.
627 "It is important in this context to
bear in mind that the test of reasonableness, wherever prescribed, should be
applied to each individual statute impugned, and no abstract standard, or
general pattern, of reasonableness can be laid' down as applicable to all
cases. The nature of the right alleged to have been infringed, the underlying
purpose of the restrictions imposed, the extent and urgency of the evil sought
to be. remedied thereby, the disproportion of the imposition, the prevailing
conditions at the time, should all enter into the judicial verdict." As
regards ,the third element, the High Court has pointed out that no suggestion
had been made before it that the number of pending suits or proceeding for
ejectment of tenants was abnormally large or that there was any other cogent
reason for introducing the impugned section in the amending Act. Indeed, in the
later case of Iswari Prasad v. N.R. Sen (1) a special bench of the same High
Court, consisting of three learned Judges including the two who had decided the
case under appeal before us, has distinguished the very judgment from the one
then under appeal, and in doing so, laid great emphasis on the absence of any
such suggestion in this case. The High Court held that those circumstances were
present in the later case and accordingly held that the law impugned in the
later case was not unconstitutional.
It is, indeed, very unfortunate that several
important matters which would have assisted the High Court in arriving at a
right conclusion as to the reasonableness of the restrictions imposed by the
impugned section were not brought to the notice of the High Court. Thus, for
example, the statement of objects and reasons appended to the Bill which
eventually became the amending Act does not appear to have been placed before
the High Court. The statement of the objects and, reasons appended to the Bill
quite clearly refers to the great hardship caused by the application of the old
section 37 to a large number of people in the urban area and particularly in
Calcutta (1) 55 C.W.N. 719 at p. 727.
628 and its suburbs where the then prevailing
phenomenal increase in land values had supplied the necessary incentive to
speculative purchasers in exploiting that section for unwarranted large-scale
eviction and maintains, according to the sponsor-of the Bill, that such
large-scale evictions necessitated the enlargement of the scope of protection
of that section, with due safeguards for the securing of Government revenue. It
is well settled by this court that the statement of objects and reasons is not
admissible as an aid to the construction of a statute (see Aswini Kumar Ghose
v. Arabinda Bose(1)) and 1 am not, therefore, referring to it for the purpose
of construing any part of the Act or of ascertaining the meaning of any word
used in the Act but I am referring to it only for the limited purpose of
ascertaining the conditions prevailing at the time which actuated the sponsor
of the Bill to introduce the same and the extent and urgency of the evil which
he sought to remedy. Those are all matters which, as already stated, must enter
into the judicial verdict as to the reasonableness of the restrictions which
article 19 (5) permits to be imposed on the exercise of the right guaranteed by
article 19 (1)(f). Further, there is another significant fact which does not
appear to have been pressed on the attention of the High Court. The Bill had
been. introduced in the Legislature on the 23rd March, 1949, and was referred
to a select committee. On the 25th April, 1949, when the Bengal Legislature was
not in session West Bengal Ordinance No. 1 of 1949 was passed, The two preambles
to that Ordinance recited as follows:
"Whereas it is expedient, pending the
enactment of further legislation, to provide for the temporary stay of certain
suits, proceedings and appeals in pursuance of the Act:
And whereas the West Bengal Legislature is
not in session and the Governor is satisfied that circumstances exist which
render it necessary for him to take immediate action '" The fact that an
Ordinance had to be passed pending the passing of this Bill and the preambles
to the (1) [1953] S.C.R. 1.
629 Ordinance do undoubtedly indicate that,
in the opinion of the authorities, the then prevailing conditions disclosed a
serious evil which urgently necessitated the taking of immediate action.
Further, it appears from the judgment delivered by the High Court on the
application subsequently made by the State for leave to appeal to this court
that a number of cases were pending before the courts in which the same
question was involved.
This is also a circumstance which was not
brought to the notice of the High Court before the judgment under appeal was
pronounced. Finally, in the judgment under appeal I find no reference to the
proviso to the new section 37 which enlarges, as it were, by way of
compensation for the loss of the right of ejectment, the purchaser's right to
claim enhancement of rent much beyond the very limited right of enhancement of
rent which, under the old section, was confined only to the fourth excepted
under-tenures. Then there is the fact, found by the High Court, that land values
had gone up so high that auction-purchasers could now be found who, even
without the right to eject the under-tenants, would willingly pay a sum much in
excess of the arrears of Government revenue which remains constant since the
permanent settlement. The cumulative effect of the foregoing facts which were
not placed before the High Court much outweighs the consideration of the
pecuniary loss of the respondent, Subodh Gopal Bose, as the auction- purchaser
and in the circumstances the infliction of the loss of the right to eject
under-tenants can only be regarded as a reasonable restriction permitted by
article 19(5) to be imposed on the exercise of the right guaranteed under
article 19(1) (f). In my judgment the reasons for which the High Court declared
section 7 of the amending Act to be ultra vires the Constitution are no longer
tenable in view of the circumstances now before us which were not brought to
the notice of the High Court and the decision of the High Court cannot,
therefore, be sustained.
An alternative-argument, however, has been
raised by learned advocate for the respondent, Subodh Gopal Bose, that the
impugned section violates the 630 fundamental right secured to him by article
31(2) of the Constitution and is, therefore, void under article 13(1).
The contention, shortly put, is that the
right, conferred by the old section 37 to avoid and annul the under- tenures
and to eject the under-tenants is, by itself," property" anti that as
the new section 37 has taken away that property without having made any
provision for I compensation there for the impugned section is unconstitutional
in that it violates the provisions of article 31 (2).
The Bill which eventually became the Bengal
Land Revenue Sales (West Bengal Amendment) Act, 1950, was introduced in the
West Bengal Legislature on the 23rd March, 1949, and after having been passed
by the Legislature it received the assent of the Governor on the 15th March,
1950. The Bill was, therefore, pending in the West Bengal Legislature when the
Constitution ,of India came into force and was passed into law after the date
of the Constitution. It does not appear, however, that the Bill was reserved
for the consideration of the President or received his assent. Therefore, the
impugned law cannot claim the protection of article 31 (4) and, what is more,
if it is such a law as is referred to in clause (2) of article 31, then, by
virtue of clause (3), it cannot have any effect at all. The question,
therefore, is as to whether the impugned section is or is not such a law as is
referred to in article 31(2). The question requires, for a proper answer, a
close scrutiny of the provisions of article 31 and other relevant articles of
the Constitution bearing on it.
At the outset it is well to bear in mind the
decision of this court in A.K. Gopalan's case(1), explaining the correlation
between the provisions of sub-clauses (a) to (e) and (g) of clause (1) of
article 19 and articles 20, 21 and 22 of the Constitution. Kania C.J., at page
101, my Lord the present Chief Justice at pages 191-192, Mahajan J., at page
229, Mukherjea J., at pages 255256 and I at pages 302-306 expressed the view
that the validity of the Preventive Detention Act could not be judged by the
provisions of article 19. The majority [1950] S.C.R. 88.
631 of the Bench took the view that the
rights conferred by article 19(1) (a) to (e) and (g) could be enjoyed only so
long as the citizen was free and had the liberty of his person but that, the
moment he was lawfully deprived of his personal liberty under article 21 he
ceased to have the rightsguaranteed by article 19 (I) (a) to (e) and (g). The result
of this part of the decision in A.K. Gopalan's case(1) was summarised in the
later case of Ram Singh v. The State of Delhi(2), by my Lord the present Chief
Justice in the judgment that he delivered on behalf of himself, Kania C. 1,and
myself. Said his Lordship at pages 455-456:
"Although personal liberty has a content
sufficiently comprehensive to include the freedoms enumerated in article 19
(1), and its deprivation would result in the extinction of those freedoms, the
Constitution has treated these civil liberties as distinct fundamental rights
and made separate provisions in article 19 and articles 21 and 22 as to the
limitations and conditions subject to which alone they could be taken away of
abridged. The interpretation of these articles and their correlation were
elaborately dealt with by the full court in Gopalan's case(1). The question
arose whether section 3 of the Act was a law imposing restrictions on "the
right to move freely throughout the territory of India" guaranteed under
article 19 (1) (d) and, as such, was liable to be tested with reference to its
reasonableness under clause (5) of that article. It was decided by a majority
of 5 to 1 that a law which authorises deprivation of personal liberty did not
fall within the purview of article 19 and its'validity was not be judged by the
criteria indicated in that article but depended on its compliance with the
requirements of articles 21 and 22, and as section 3 satisfied those
requirements, it was constitutional." Mahajan J., who by a separate
judgment dissented from the majority on another point, not material for our
present purpose, said at page 467:
"On the other points argued in the case
I agree judgment of Sastri J." (1) [1950] S.C.R. 88. (9) [1951] S.C.R.
451.
632 It must, therefore, be regarded as
settled that the freedom referred to in article 19 (1) sub-clauses (a) to (e)
and (g) are guaranteed to a citizen of India while he is a free man. These
freedoms, even when they are so available, are, however, not absolute and
unbridled licence but are subject to social control in that reasonable
restrictions may be imposed on them by law as indicated in clauses (2) to (6)
of article 19. But as soon as the citizen is lawfully deprived of his personal
liberty as a result of detention, punitive or preventive, he loses his capacity
to exercise the several rights enumerated in sub-clauses (a) to (e) and (g) of
article 19 (1) and cannot complain of the infraction of any of those rights.
The validity of the law which deprived a citizen of his personal liberty which
inevitably destroys his rights under the sub-clauses mentioned above cannot be
judged by the test of reasonableness laid down in clauses (2) to (6) of article
19 but falls to be determined according to the provisions of articles 20, 21
and 22 of the Constitution. This, I apprehend, is the result of the two
decisions of this court referred to above.
Such being the correct correlation between
article (1) sub-clauses (a) to (e) and (g) on the one hand and article 21 on
the other, the question necessarily arises as to the correlation between
article 19 (1)(f) and article 31.
Article 19 (1)(f) guarantees to a citizen,as
one of his freedoms, the right to acquire, hold and dispose of property but
reasonable restrictions may be imposed on the exercise of that right to the
extent indicated in clause (5). Article 31, as its heading shows guarantees to
all persons, citizens and non-citizens the "right to property" as a
fundamental right to the extent therein mentioned. What, I ask myself, is the
correlation between article 19 (1) (f) read with article 19 (5) and article 31
? If, as held by my Lord in A.K. Gopalan's case(1) at page 191, sub-clauses (a)
to (e) and (g) of article 19 (1) read with the relevant clauses (2) to (6)
"presuppose that the citizen to whom the possession of these fundamental
rights is secured retains the substratum of personal freedom on which alone the
enjoyment of these rights necessarily (1) [1950] S.C.R. 88.
633 rests", it must follow logically
that article 19 (1)(f) read with article 19 (5) must likewise presuppose that
the person to whom that fundamental right is guaranteed retains his property
over or with respect to which alone that right may be exercised. I found myself
unable to escape from this logical conclusion and so I said in A.K. Gopalan's
case at pages 304-305:
"But suppose a person loses his property
by reason of its having been compulsorily acquired under article 31 he loses
his right to hold that property and cannot complain that his fundamental right
under sub clause (f) of clause (1) of article 19 has been infringed. It follows
that the rights enumerated in article 19 (1) subsist while the citizen has the
legal capacity to exercise them. If his capacity to exercise them is gone, by
reason of lawful conviction with respect to the rights in sub- clauses (a) to
(e) and (g), or by reason of a lawful compulsory acquisition with respect to
the right in sub- clause (f), he ceases to have those rights while his
incapacity lasts." I reiterated the same opinion in my judgment in
ChiranJitlal's case(1). Nothing that I have heard on the present occasion has
shaken the opinion I expressed in those cases as to the correlation of article
19 (1) (f) read with article 19 (5) and article 31 of our Constitution.
A suggestion was thrown out by my Lord in
course of arguments, that article 19 (1) (f) was concerned only with the
abstract right and capacity to acquire, hold and dispose of property and had no
reference or relation to any rights in any particular property but that article
31 only was concerned with the right to a concrete property and there was no
correlation between the two articles. The matter, however, was not argued by
either side and I am not prepared to express any final opinion on it. For the
purpose of this appeal I am content to proceed on the footing that article 19
relates to abstract right as well as to right to concrete property.
(I) [1950] S.C.R. 869 at p. 919.
4--95 S.C.I./59 634 I now turn to article 31
which appears under the heading "right to Property". The clauses of
that article which are material for the purposes of determining the question in
debate run as follows-:
"(1) No person shall be deprived of his
property save by authority of law.
(2) No property, movable or immovable,
including any interest in, or in any company owing, any commercial or
industrial undertaking, shall be taken possession 01: or acquired for public
purposes under any law authorising the taking of such possession or such
acquisition, unless the law provides for compensation for the property taken
possession of or acquired and either fixes the amount of the compensation, or
specifies the principles on which, and the manner in which, the compensation is
to be determined and given.
* * * * (5) Nothing in clause (2) shall
affect- (a) the provisions of any existing law other than a law to which the
provisions of clause (6) apply, or (b) the provisions of any law which the
State may hereafter make- (i) for the purpose of imposing or levying any tax or
penalty, or (ii) for the promotion of public health or the prevention of danger
to life or property, or (iii) in pursuance of any agreement entered into
between the Government of the Dominion of India or the Government of India and
the Government of any other country, or otherwise, with respect to property
declared by law to be evacuee property." It is suggested that the two
clauses are not mutually exclusive but must be read together and that they are
only concerned with what has -been described as the State's power of eminent
domain which, according to Professor Willis, means the legal capacity of
sovereignty, or one of its governmental organs, to take private property for a
public use, upon the 635 payment of just compensation. Reference is made to
certain passages culled from the works of eminent ancient writers like the
Dutch publicist and statesman Hugo Grotius who flourished in the' 17th century
and William Blackstone the celebrated English jurist who wrote his Commentaries
round about 1769 and from Judge Cooley's well known book on Constitutional
Limitations to show that from early times jurists have insisted on three things
as pre-requisites for 'the exercise of this power of eminent domain, namely,
(1) the authority of law, (2) the requirement of public use, and (3) the
payment of just compensation. These three prerequisites which constitute
limitations on the power of eminent domain are said to have been epitomised in
1791 in the last two clauses of the Fifth Amendment to the Constitution of the
United States of America. The contention is that article 31 reproduces those
three limitations on the power of eminent domain, namely, that clause (1)
announces the necessity for legislative sanction as a pre-requisite for the
exercise of the power, thus protecting all persons against expropriation by the
State acting through its executive organ, the Government, and that' clause (2)
reproduces the necessity of a public purpose and payment of compensation. It is
concluded that these important limitations on the State's power of eminent
domain are designed to protect a person against arbitrary deprivation of his
property and they constitute his fundamental right in relation to his property.
The proposition thus formulated is certainly
attractive and, indeed, has found favour with my learned colleagues but appears
to me to be open to certain objections. I say in all humility that I consider
the method of approach and the line of reasoning in support of that proposition
entirely fallacious and wrong. The steps in the argument seem to be (i)that the
power of eminent domain and the limitations thereon as explained by eminent
jurists are incorporated in the Fifth Amendment to the Constitution of the
United States, (ii) that clauses (1) and (2) of article 31 are concerned with
the same topic of 636 eminent domain and (iii) that, therefore, clauses (1) and
(2) of article 31 must be read as having reproduced the same limitations on the
power of eminent domain. This line of reasoning amounts, in effect, to likening
one thing with another thing and then saying that as that other thing means
such and such this thing must, therefore, bear the same meaning--a method which
has been deprecated by Lord Halsbury in Styles' case(1). Further, if this line
of reasoning were correct or permissible then we might as 'well have said,as
indeed we were asked to say, that article 21reproduced the American
constitutional limitationsa gainst deprivation of life and personal liberties and
that, therefore, the expression "procedure established by law" to be
found in article 21 meant exactly what the expression "dueprocess of
law" occurring in the Fifth Amendment did. This we resolutely and
definitely declinedto do in A. K. Gopalan's case (supra). At page 108 of the
report of that case Kania C-I- expressed the view that that line of reasoning
was not proper and was misleading. My Lord the present Chief Justice' at
page'197 repelled that contention. After quoting the words of Madison about the
great and essential rights of the people" my Lord concluded at page 199:
"This has been translated into positive
law in Part III of the Indian Constitution, and I agree that in construing
these provisions the high purpose and spirit of the Preamble as well as the
constitutional significance of a Declaration of Fundamental Rights should be
borne in mind. This, however, is not to say that the language of the provisions
should be stretched to square with this or that constitutional theory in
disregard of the cardinal rule of interpretation of any enactment,
constitutional or other, that its spirit, no less than its intendment should be
collected primarily from the natural meaning of the words used".
After noticing the argument of learned
counsel for the petitioner Mukherjea J. at page 266 et scq found (1) [1889]
L.R. 14 A.C. 381.
637 It impossible to introduce the American
doctrine of due process of law into our article 21. If the language of our
article 21 could not be stretched to square with the American due process
clause so as to give effect to the suggested enlargement of the scope of our
fundamental right to life and personal liberties but had to be interpreted by
giving the words their ordinary natural meaning I cannot see why the language
of article 31 should not bc construed in the usual way so as to give effect to
the plain intention our Constitution- makers. I say with the utmost humility
that the proper method of approach is to adopt the golden rule of construction
referred to in the judgment of my Lord quoted above and not to start off with
any kind of assumption that our Constitution must be regarded as having
reproduced this or that doctrine.
Apart from the erroneous line of reasoning
referred to above, the conclusion arrived at by following that reasoning
appears to me to be open to serious objections on merits also. If it were
correct to say that the two.
clauses, (1) and (2), of article 31 deal with
the same topic of the State's power of eminent domain which is inherent in its
sovereignty then, as I pointed out in my judgment in Chiranjitlal's case(1) at
page 925, clause (1). must be held to be wholly redundant and clause (2) by
itself would have sufficed, for the necessity of a law is quite clearly
implicit in clause (2) itself which alone would have served as a protection
against State action through its executive organ, the government. Another and
more serious objection against reading both the clauses as dealing only with
the same topic of eminent domain is, as pointed out by me in Chiranjitlals case
(supra), that such construction will place the deprivation of property
otherwise than by the taking of possession or acquisition of it outside the
pale of all constitutional protection. As I said there and as I shall also do
hereafter in detail, one can conceive of circumstances where the State, in
exercise of the State's police power, may have to deprive a person of his
property without taking possession of it or acquiring it within the meaning of
(1) [1950] S.C.R. 869. 638 article 31(2). This police power of the State is
also one of the powers inherent in the sovereignty of the State. The suggestion
that the first two clauses of article 31 should be read as dealing only with
eminent domain will, if accepted, lead us to hold that our Constitution has not
dealt with the State's police power to deprive a person of his property and has
not provided for us any protection against the State by imposing any limitation
on the exercise of that power. The suggested construction will render the
enunciation of our fundamental "Right to property" patently
incomplete. It has been urged that the State's police power is recognised and
regulated by article 19 clauses (2) to (6) and article 31 (5) (b). I shall deal
with that argument in detail hereafter and show that it is quite untenable.
Apart from that argument, the result of reading article 31, clauses (1) and (2)
together will be to hold that our Constitution has not provided for us any
protection against the exercise of the State's police power either by the Legislature
or by the executive. Such a conclusion I am not prepared to accept. Accordingly
I thus explained what I conceived to be the true scope and effect of clauses
(1) and (2) of article 31 in Chiranjitlal's case (supra) at page 925, namely,
that clause (1) deals with deprivation of property in exercise of police power
and enunciates the restriction which our Constitution-makers thought necessary
or sufficient to be placed on the exercise of that power, namely, that such
power can be exercised only by authority of law and not by a mere executive
fiat and that clause (2) deals with the exercise of the power of eminent domain
and places limitations on the exercise of that power. It is these limitations
which constitute our fundamental right against the State's power of eminent
domain. The language used in article 31(2) clearly indicates beyond doubt that
the power of eminent domain as adopted in our Constitution is concerned with
only that kind of deprivation of property which is brought about by the taking of
possession or acquisition contemplated by that clause.
I again adverted to this matter in The State
of Bihar v. Maharajadhiraja 639 Kameshwar Singh of Darbhanga(1 ). It is said
that such a construction of article 31(1) instead of enunciating any fundamental
right of the people at all will, on the contrary, declare the fundamental right
of the Legislature to deprive a person of his property by merely. enacting a
law. This appears to me to be a very superficial.
criticism which completely overlooks that article
31(1), as far as it goes, does lay down a fundamental right by imposing a
limitation at least on the executive power. It is this limitation placed on the
executive power that constitutes our fundamental right to property under
article31(1). I see no compelling or cogent reason for changing the views I
expressed on this point in my judgments in those two cases.
It is necessary, at this stage, to examine
the several other objections that have been taken to the correctness of the
interpretation suggested by me. It is said that the State's. police power in
relation to the citizens' right to freedom is fully recognised in article 19.
Clause (1) of that article secures to the citizens of India seven specified
rights but clauses (2) to (6) permit the State to make laws imposing reasonable
limitations on the exercise of these seven rights as therein mentioned.
The argument is that clauses (2) to
(6)recognise the police power of the State in that they permit it to make laws
imposing restrictions on the seven rights of the citizens and that they at the
same time regulate that power by placing limitations upon it by requiring that
the restrictions which may be imposed must be reasonable. It is then pointed
out that the State's police power is further saved by article 31(5) (b) and it
is concluded that the police power having been recognised and provided for in
article 19 and article 31(5) (b)- there is no necessity to read article 31(1)
as concerned with the State's police power at all. I see no force or validity
in the aforesaid objection.
I first deal with the objection in so far as
it is founded on the recognition of the State's police power in (1) [1952]
S.C.R. 889 at pp. 988-989.
article 19. I say that there is no force in
this objection for the following reasons:
(a) article 19(1) enumerates seven rights to
freedom and guarantees them to the citizens of India. Clauses (2) to (6) of
that article recognise and regulate the exercise of police power over those
rights by the State through its legislative organ, for the State is, by those
clauses, permitted to impose reasonable restrictions by law only.
Therefore, it follows that article 19 does
not give any protection to the citizens against the executive government in
respect of even those seven rights. The citizens, however, have protection
against the executive as well as the Legislature under article 21 but that
protection covers life and personal liberties only.
Where, then, is the citizen's protection
against the exercise of police power by the executive over his property? It is
nowhere except in article 31(1) as construed by me.
(b) Article 19 guarantees the seven rights of
the citizens only and recognises and regulates the exercise of police power
over those rights by the legislative organ of the State. A non-citizen is
entirely outside that article and consequently he has none of those seven
rights and has no protection against the State under that article. He has,
therefore, to fail back upon article 21 and contended that all his personal
liberties including the six rights enunciated in article 19(1)(a) to (e) and
(g)are protected against the exercise of police power by the State through its
executive or legislative limb. But article 21, as already observed, only
protects him from deprivation of life and personal liberties. Where, then, is
the non-citizen's protection against deprivation of his property by the
exercise of police power by the executive government. It is no where unless
article 31(1) is read in the way I have suggested.
(c) Finally, clauses (2) to (6) of article 19
authorise the State to make laws imposing reasonable "restrictions"
on the citizen's rights under clause (1).
It is true that in A. K. Gopalan's case
(supra) Fazl Ali J. in his dissenting judgment took the view that 641
"restrictions" might cover the case of total deprivation, but none of
the other members of that Bench accepted that position. Kania C.J. said at page
106:
"Therefore, article 19 (5) cannot apply
to a substantive law depriving a citizen of personal liberty. I am unable to
accept the contention that the word 'deprivation' includes within its scope
"restriction" when interpreting article 21".
My Lord the present Chief Justice expressed
his views at p. 191 in the words following:
"The use of the word 'restrictions' in
the various sub-clauses seems to imply, in the context, that the rights
guaranteed by the article are still capable of being exercised, and to exclude
the idea of incarceration though the words 'restriction' and 'deprivation' are
sometimes used as interchangeable terms, as restriction may reach a point where
it may well amount to deprivation. Read as a whole and viewed in its setting
among the group of provisions (articles 19- 22) relating to 'Right to Freedom',
article 19 seems to my mind to presuppose that the citizen to whom the
possession of these fundamental fights is secured retails the substratum of
personal 'freedom on which alone the enjoyment of these rights necessarily
rests".
The contrary view expressed by a Bench of the
Allahabad High Court was rejected by my Lord at the end of page 193 with the
following remark:
" ........ their major premise that
deprivation of personal liberty was a 'restriction' within the meaning of
article 19 is, in my judgment, erroneous'. Mahajan J.
expressed the same view in the following
passage at page 227 in his judgment in that case:
"Preventive detention in substance is a
negation the freedom of locomotion guaranteed under article 19(1)(d) but it
cannot be said that it merely restricts it". Mukherjea J. said at page
256:
..... and the purpose of article 19 is to
indicate the limits within which the State could, by legislation, 642 impose
restrictions on the exercise of these fights by the individuals. The
reasonableness or otherwise of such legislation can indeed be determined by the
court to the extent laid down in the several clauses of' article 19, though no
such review is permissible with regard to laws relating to deprivation of life
and personal liberty".
His Lordship concluded thus at page 264:
"The result is that, in my opinion, the
first contention raised by Mr. Nambiar cannot succeed and it must be held that
we are not entitled to examine the reasonableness or otherwise of the
Preventive Detention Act and see whether it is within the permissible bounds
specified in clause (5) of article 19".
After discussing the matter at some length at
pages 302- 305 I concluded on page 306:
"In my judgment article 19 has no
beating on the question of the validity or otherwise of preventive detention
and, that being so, clause (5) which prescribes a test of reasonableness to be
defined and applied by the court has no application at all".
A suggestion was made that although in A.K.
Gopalan's case (supra) the word "restriction" occurring in clauses
(2) to (6) could not, in its application to, sub-clauses (a) to (e) and (g) be
taken as extending to "deprivation ", there is no compelling reason
to hold that the word "restriction" occurring in clause (5) may not
in its application to sub-clause (f) cover "derivation" There is no
substance in this contention. Clause (5) covers sub-clauses (d), (e) and (f)
and surely one and the same word "restriction" used in one and the
same clause (5) cannot have one meaning in its application to sub-clauses (d)
and (e) and a different meaning and connotation in its application to subclause
(f). Further, the reasons why, in A.K. Gopalan's case (supra), that word was
given a narrower meaning in its application to sub-clauses (a) to (e) and (g)
apply mutatis mutandis in its application to sub-clause (f) read' in
correlation to article 31. It is, therefore, clear from the decision of this
court in A.K. Gopalan's case (supra) that article 19 does not give any
protection 643 against deprivation of property as distinct from mere
restriction imposed on the right 'to property. For protection against
deprivation of life and personal liberties including the several rights to
freedom enunciated in sub-clauses (a) to (e) and (g) of article 19 by the
exercise of police power by the legislative or the executive organ of the State
the citizen as well as the non-citizen will have to look to article 21. For
protection against the deprivation of property by legislative or executive
State action both the citizen and the non-citizen will have to rely on article
31.
If, as I shall show presently, clause (5) (b)
were inserted in article 31 ex abundanti cautela and not as a substantive
provision defining the ambit or scope of the police power or formulating any
limitation on that power, then the protection against deprivation of property
will have to be derived from only clauses (1) and (2). If, in such
circumstances, both those clauses are read in the way suggested by learned
counsel for the respondent, Subodh Gopal Bose, namely, as dealing only with the
topic of the State's power of eminent domain then there will remain no escape
from the conclusion that in the Republic of India neither a citizen nor a
non-citizen has any constitutional protection against the exercise of police
power either by the legislative or executive organ of the State. On the other
hand, if the construction suggested by me be adopted, everybody, citizen or
non- citizen, will have, under article 31 (2), full protection against the
exercise the power of eminent domain by both the executive as well as
Legislature and in addition to that will also have protection against the
exercise of police power over property by the executive. The preservation of
this protection alone, even if some may regard it as very meagre, is, to my
mind, a sufficiently cogent reason for adopting the construction suggested by
me in preference to the other construction which, if adopted, will not save
even this meagre protection.
The next objection to the conclusion arrived
at by me is that police power of depriving a person of his property is amply
provided for in article 31 (5) (b) and it is not necessary to read it into
article 31 (1).
644 A perusal of clause (5) of article 31
which 1 have already quoted will at once show that that clause excepts certain
laws from the operation of clause (2) only. It will also appear that the
exception covers, under sub-clause (b), only certain kinds of future laws. Item
(i) under sub- clause (b) comprises future laws imposing or levying any tax or
penalty. Item (ii) under that sub-clause saves future laws for the promotion
public health or the prevention of danger to life or property. It is said that
this clause (5)(b)(ii)saves laws to be made in exercise of the State's police
power. The argument is that the State's police power of imposing
"restriction" on the citizens' right to acquire, hold and dispose of
property is recognised and controlled by clause (5) of article 19 and that when
it becomes necessary for the police power to extend beyond
"restrictions" and to inflict "deprivation" property it can
do so by the kind of law which is, by clause (5)(b) (ii) of article 31, saved
from the operation of clause (2). It is pointed out that in the matter of
imposition of "restrictions" on the exercise of the right to acquire,
hold and dispose of property the only limitation on the police power is that
the "restrictions" to be imposed by law must be reasonable as
indicated in article 19 (5) but that in the matter of "deprivation"
of property by authority of law under article 31 the limitation on the police
power is more 'stringent, namely, that such law may be made only for the
promotion of public health or the prevention of danger to life or property as
mentioned in clause (5) (b) (ii) and for no other purpose. The argument thus
formulated is attractive for its simplicity and has the appearance of
plausibility but cannot stand the test of close scrutiny. I say so far the
following reasons :- (i) Every student of Constitutional law is well aware that
constitutional lawyers classify the State' sovereign power into three
categories, namely, the power of taxation, the power of eminent domain and the
police power. These are distinct categories of sovereign powers with different
connotations sub serving different needs of the society and the State. If both
645 clauses (1) and (2) of article 31 deal with and impose restrictions only on
the State's 'power of eminent domain, then there was no real necessity for
exempting by article 31 (5)(b)the taxation power or the police power from the
operation of the power of eminent domain, for, ex hypothesis, the two first
mentioned powers, being distinct from the power of eminent domain, did not and
could not fail within the last mentioned power and, therefore, needed no
exemption. Even a casual student of Constitutional law knows that money is one
of the kinds of property which, it is said, cannot be taken in exercise of the
State's power of eminent domain and that being so there could be no necessity
for exempting laws imposing taxes from the operation of article 31 (2) which
embodies only the doctrine of eminent domain. Further, the police power, like
the pOwer of taxation and the power of eminent domain, is an attribute of
sovereignty itself.It is, as Professor Willis calls-it, "the offspring of
political necessity". This coercive legal capacity is inherent in every
sovereign and requires no specific reservation. Indeed, in the Constitution of
the United States there. is no specific reservation of the police power of the
State.
There was, therefore, no necessity for
expressly saving the police power of our State by a constitutional provision.
Why, then, was clause (5) (b) (ii) inserted in article 31 at all ? The answer
will become obvious if it is remembered that it is extremely difficult to
define precisely the ambit and scope of the State's police power over or in
relation to private property and some of the instances and forms of the
exercise of such police power over or in relation to property may superficially
resemble the exercise of the power of eminent domain. The conclusion,
therefore, becomes irresistible that although clause (5)(b)(ii) was not
strictly speaking necessary for saving the police power, nevertheless, our
Constitution-makers, out of abundant caution and with a view to avoid any
possible argument, thought fit to insert sub-clause (5) (b) (ii)in article 31.
It is impossible to hold that the entire police power of the State to deprive a
person of his property is contained in that sub-clause.
646 (ii) According to the argument article 31
(5)(b) saves the power of' the State to make certain laws in exercise of its
power of taxation or its police power. It will be noticed that it does not give
us any protection against the Legislature by laying down any test for the
validity of those laws. The acceptance of the suggested construction will mean
that laws thus saved may be as archaic, offensive and unreasonable as the
legislature may choose to make them so long as they relate to the subjects
referred to in that sub-clause. If our sense of the sanctity of private
property is not shocked at the prospect of leaving our property at the
unfettered mercy of the Legislature in respect of laws of the kind specified in
clause (5) (b) (ii), I do not see why the construction suggested by me should
be rejected only on the ground that it will give a carte blanche to the
Legislature to make any law it pleases for the deprivation of property in
exercise of police power.
(iii) Article 31 (5) (b) gives us no
protection against the executive with respect to the exercise of these powers.
Take article 31 (5)(b)(i)first. That it was. not intended to be a protection
against the executive in the exercise of the power of taxation cannot for a
moment be doubted, for if it were so intended, there was no necessity, then,
for inserting into the Constitution article 265 providing that no taxes. shall
be levied or collected except by authority of law, which clearly means that the
executive cannot, on its own authority, levy or collect any tax. It is,
therefore, quite plain that article 31 (5)(b)(i)was not designed to give any
protection against the executive in the matter of the exercise of the power of
taxation and that our Constitution-makers, precisely for that reason,
considered that it was necessary that such protection should be given expressly
and, therefore, inserted article 265. Likewise, article 31 (5)(b)(ii) saves
certain laws and does not in terms give us any protection against the exercise
of police power by the executive. Where, then, is our protection against
deprivation of property by the exercise of police power by the executive
Government? It is nowhere to be 647 found in our Constitution except in article
31(1). This, to my mind, clearly indicates that article 31(1)was designed to
formulate a fundamental right against deprivation of property by the exercise'
of police power by the executive arm of the State. The protection against the
exercise of the power of eminent domain by the executive government is to be
found in the requirement of a law which alone may authorise the taking of
possession or the acquisition of the property which, as will be explained
later, is implicit in article 31(2) itself and it is, therefore, not necessary
to have recourse to article 31(1) to secure that protection.
(iv) To say that the entire police power of
the State to deprive a person of his property is to be found only in article
31(5)(b)(ii) will be to confine the exercise of that power by the Legislature
within a very narrow and inelastic limit, namely, only for the promotion of
public health or the prevention of danger to life or property. On the
assumption that article 31 (5)(b)(ii) is concerned with saving the police power
it may cover the laws authorising the destruction of rotten or adulterated
foodstuff or the pulling down of a dangerous dilapidated building or the
demolition a building to prevent fire from spreading. But it is quite easy to
contemplate laws which do not fall within article 31 (5) (b) (ii) but are,
nevertheless, made mistakably in exercise of the State's police power. Consider
the case of a law authorising the seizure and destruction of, say, obscene
pictures or blasphemous literature. Such law is clearly necessary for the
promotion or protection of public morality. Nobody can for a moment think of
contending that such law will be void if it does not provide for compensation
and yet that will be the result if we are to accept the suggested construction,
for such a law made for protecting public morality is obviously not covered by
article 31 (5)(b)(ii) and will, according to such construction, be hit by
article 31(2). A construction which leads to the astounding result of
compelling the State to buy up obscene pictures and. blasphemous literature if
it desires to preserve public morality cannot merit serious consideration and
must be discarded at once. Take 648 the case of a law providing for the
compulsory contribution by all banks based upon the average daily deposits for
the purpose of creating a guarantee fund to secure the full repayment of
deposits to all depositors in case any such bank becomes insolvent and i$
ordered to be wound up.
This law quite clearly deprives the banks of
property in the shape of their respective contributions and it is not covered
by clause (5) (b) (i) as it cannot be said to impose a tax or a penalty and
does not fail within (5) (b) (ii) either, for it is not a law for the promotion
of public health or for the prevention of danger to life or property. This law
being thus outside clause (5)(b)cannot, according to the suggested construction
be supported as an instance of exercise of police power for, ex hypothesis the
entire police power with regard to deprivation of property is contained in
clause (5)(b)and consequently the law I have mentioned will not be protected
from the operation of article 31(2) and must be void for not providing any
compensation. Yet in the United States where so much is made of the sanctity of
private property and from where we are prone to draw inspiration in these
matters such a law has been upheld as ,constitutional, as an instance of a
valid exercise of the State's-police power "which extends to all the great
public needs." [See Noble State Bank v. Haskell(1)]. Again, suppose there
is a labour dispute between, say, a tramway company and its workers and the running
of the tram cars is stopped. A law which in such circumstances authorises the
State to take possession of the tram depot and run the tram cars by the
military or other personnel during such emergency for the convenience of the
travelling public is not within clause (5)(b)(ii) and on this construction will
be void if it does not provide for compensation to the tramway company.
On the suggested construction pushed to its
logical conclusion it will not be possible in future to impose any social
control on the profiteers or black marketers, for a law controlling and fixing
prices of essential supplies will always deprive them of property of the value
to be measured by the difference between the black market price and the
controlled price. The suggested construction may even make it difficult to
support any future law containing provisions similar to those in the procedure
codes or other laws not strictly falling within the clause (5)(b)(ii)but
authorising the seizure of books, documents or other property or the
appointment of a receiver or sequestrate or to take possession of property, for
in all such cases there will be a "deprivation" of property. It is
unnecessary to multiply instances. The several instances I have just given
above appear to me to furnish ample justification for rejecting a construction
which may make it impossible for the State to undertake beneficial legislation
to promote social interest and may invalidate laws of the kind I have
mentioned.
(v) Article 31 (5) (b) (ii) saves from the
operation of clause (2) laws to be made in future for the promotion of public
health or the prevention of danger to life or property. Obviously it was
contemplated that the laws thus saved would involve the taking of possession or
acquisition of private property, for otherwise there would be no necessity for
the exemption at all. Take the case of a law authorising the opening out of a
congested part of a town and the acquisition of land for the laying out of a
public park for affording fresh air and other health amenities to the public.
Consider the case of a law authorising the clearing up of slums and the closing
down of putrid and unhealthy surface drains and acquisition of land for
broadening the lanes so as to lay underground sewers there under. One may also
refer to a law authorising the acquisition of land for the erection of a
hospital for patients suffering from infectious diseases, e.g., plague,
small-pox and cholera. All these laws will ,come under the heading of promotion
of public health or the prevention of danger to life. According to the
suggested construction the acquisition of property authorised by each of these
laws will be exempt from payment of compensation to the owner, for these laws
are, by clause (5)(b) (ii) exempted from article 31(2). And yet acquisition of
land for such public purposes is precisely the kind of acquisition which is
always made on payment of 5--95 s.C.I.159 650 compensation under the Land
Acquisition Act 1894. A construction which takes a law made really and essentially
in exercise of the power of eminent domain out of article 31(2) cannot readily
be accepted as cogent or correct.
(vi) The complexities of modern States
constantly give rise to conflicts between opposing social interest and it is
easy to visualise circumstances when much wider social control legislation than
is envisaged or recognised in the laws referred to in article 31(5)(b) will be
imperatively necessary. Indeed, as Professor Willoughby states in his
Constitutional Law of the United States, Vol. III, p. 1774, "the police
power knows no definite limit. It extends to every possible phase of what the
Courts deem to be the public welfare". In the language used by Holmes J.
in Noble State Bank v. Haskell (supra), "it may be said in a general way
that the police power extends to all the great public needs". In Eubank v.
Richmond(1) the Court said of the police power:
"It extends not only to regulation which
promote the public health, morals, and safety, but to those which promote the
public convenience or the general prosperity ......It is the most essential of
powers, at times most insistent, and always one of the least limitable of the
powers of government." And all the more will such wide police powers be
required in a State which,' like our own, aims at being a welfare State
governed by the directive principles of State policy such as are to be found in
Chapter IV of our Constitution. To so confine the State's police power as
suggested by learned advocate for the respondent will be to bring about social
stagnation and thereby to retard the progress of our State. There is nothing in
the language of our Constitution which compels us to adopt such a construction.
In my judgment a construction which is calculated to produce the undesirable
result I have mentioned must, I feel sure, be rejected.
(1) 226 U.S. 137.
651 The last objection to reading
article31(1) as the enunciation of the fundamental right against deprivation of
property by the exercise of police power and reading article 31(2)as laying down
limitations on the State's power of eminent domain is that so read article 31
will, in reality, afford no effective protection at all, for the State will
always exercise its police power under article 31 (1) and deprive a person of
his property without any compensation by the simple device of making a law and
will never exercise its power of eminent domain under article 31(2). Where,
then, it is asked, is our protection against the State with respect to our
property ? The objection thus formulated overlooks the difference between the
nature and purpose of the two powers which I shall presently discuss and
explain and is not otherwise well rounded for the following' reasons:
(1) It is incorrect to say that article 31
(1) as construed by me gives no protection at all. It certainly gives
protection against deprivation of property by executive fiat just as did that
part of the famous 29th Clause of the Magna Charta which proclaimed that no
free person should be dispossessed of any free tenement of his except by the
law of the land. As pointed out by Mathews J. in joseph Hurtado v. People of
California(1), by the 29th Clause of the Magna Charta the English Barons were
not providing for security against their own body or in favour of the commons
by limiting the power of Parliament but were protecting themselves against
oppression and usurpation of the King's prerogatives. In other words, that
clause of the Magna Charta was not designed as a protection against Parliament
at all and indeed did not purport to formulate any limitation on the Sate's
power of eminent domain but was only intended to be a protection against the
exercise of police power by the highest executive, the King. There is
unmistakably a familiar ring in the language of our article 31(1) echoing the
sound of the language of the 29th Clause of that great charter which the
English Barons had wrested from their King. The purpose and function (1) (1883)
10 U.g. 516 at p. 531.
652 of our article 31(1), as I apprehend it,
are the same as those of the Magna Charta. Our Constitution has given us ample
protection against the executive in relation to all the three sovereign powers
of the State.
Thus the executive cannot, on its own
authority, and without the sanction of a law deprive any person of his life or
personal liberty by reason of article 21 or of his property because of article
31(1) or take possession of or acquire private property under article 31 (2) or
impose any tax under article 265. 'Our Constitution makers evidently considered
the protection against deprivation of property in exercise of police power or
of the power of eminent domain by the executive to be of greater importance
than the protection against deprivation of property brought about by the
exercise of the power of taxation by the executive, for they found a place for
the first mentioned protection in article 31(1) and (2) set out in Part III
dealing with fundamental rights while they placed the last mentioned protection
in article 265 to be found in Part XII dealing with finance etc. So with regard
to all the three sovereign powers we have complete protection against the
executive organ of the State.
(2) It is said we have no protection against
legislative tyranny in respect of our property. This complaint obviously is not
well rounded, for our Constitution has given us some measure of protection
against the legislature in respect of our property. Thus if the State exercises
its power of eminent domain by taking possession of or acquiring private
property of any person it must do so upon the three conditions prescribed by
article 31 (2). There is no shorter cut in such a case. Apart from this the
citizens of India have further protection against the legislature in respect of
their right to acquire, hold and dispose of property. This right is guaranteed
to them by article 19(1)(f). The Constitution, however, recognises by clause
(5) that the State has police power to restrict the right in the interest of
the general public or for the protection of the interests of any Scheduled
tribe but prescribes a limitation on this police power by requiring that the
restrictions to be imposed by 653 law must be reasonable. This requirement
constitutes the citizens' fundamental right against the exercise of police
power by the legislature in respect of his fight under article 19 (1)(f)whilst
they are in possession and enjoyment of this right.
(3) It is then urged that our Constitution,
according to my construction of it, does not give us any protection against the
legislature in the matter of deprivation of property in exercise of the State's
police power. This is no ground for rejecting my construction, for, on the
construction suggested to the contrary, the position is exactly the same, for
article 31 (5) (b) only saves certain laws from article 31(2), that is to say,
recognises the police power but does not formulate any test for determining the
validity of those laws which may be as unreasonable as the legislature may make
them. Apart from this, what, I ask, is our protection against the legislature in
the matter of deprivation of property by the exercise of the power of taxation
? None. whatever. By exercising its power of taxation by law the State may
deprive us, citizen or non-citizen of almost sixteen annas in the rupee of our
income. What, I next ask, is the protection which our Constitution gives to any
person against the legislature in the matter of deprivation even of life or
personal liberty ? None, except the requirement of article 21, namely, a
procedure to be established by the legislature itself and a skeleton procedure
prescribed in article 22. In A.K. Gopalan's case (supra), notwithstanding the
reference made to the epigrammatic observation of Bronson J. in Taylor v.
Porte(1) to the effect that it sounded very much like the Constitution speaking
to the legislature that the latter could not infringe our right unless it chose
to do so, the majority of this Court declined to question the wisdom and policy
of the Constitution or to stretch the language of article 21 so as to square it
with its own notions of what the ambit of the right should be but felt bound to
give effect to the plain words of the Constitution.
(See Kania C.J. at page 11, Mukherjea J. at
page 277 and my judgment at page 321). If, (1) 4 Hill 140.
654 therefore, in the matter of deprivation
of property by the exercise of the State's power of taxation our Constitution
has only given us protection by article 265 against the executive but none
whatever against the legislature and if, in the matter of deprivation of our
life and personal liberty our Constitution has given us no better protection
against the legislature than the requirement of a procedure to be established
by the legislature itself: and the skeleton procedure prescribed by article 22,
and seeking that our Constitution has, by article 31(2), given us protection
against the legislature at least with respect to the exercise of the power of
eminent domain, what is there to complain of ,if, in the matter 015 deprivation
of property by the exercise of the State's police power, our Constitution has,
by article 31 (1), given us protection only against the executive but none
against the legislature ? What is abnormal if our Constitution has trusted the
legislature, as the people of Great Britain have trusted their Parliament ?
Right to life and personal liberty and the right to private property still
exist in Great Britain in spite of the supremacy of Parliament. Why should we
assume or apprehend that our Parliament or State legislatures should act like
mad men and deprive us of our property without any rhyme or reason ? After all
our executive government is responsible to the legislature and the legislature
is answerable to the people. Even if the legislature indulges in occasional
vagaries, we have to put up with it for the time being. That is the price we
must pay for democracy. But the apprehension of such vagaries can be no
justification for stretching the language of the Constitution to bring it into
line with our notion of what an ideal Constitution should be. To do so is not
to interpret the Constitution but to make a new Constitution by unmaking the
one which the people of India have given to themselves. That, I apprehend, is
not the function of the court. If the Constitution, properly construed
according to the cardinal rules of interpretation, appears to some to disclose
any defect or lacuna the appeal must be to the authority competent to amend the
Constitution and not to the court.
655 (4) Further, there may be quite cogent
and compelling reason why our Constitution does not provide for any protection
against the legislature in the matter of deprivation of property otherwise than
by taking of possession or acquisition of it. It is futile to cling to our
notions of absolute sanctity of individual liberty or private property and to
wishfully think that our Constitution-makers have enshrined m our Constitution
the notions of individual liberty and private property that prevailed in the
16th century when Hugo Grotius flourished or in the 18th century when
Blackstone wrote his Commentaries and when the Federal Constitution of the
United States of America was framed. We must reconcile ourselves to the plain
truth that emphasis has now unmistakably shifted from the individual to the
community. We cannot overlook that the avowed purpose of our Constitution is to
set up a welfare State by subordinating the social interest in individual
liberty or property to the larger social interest in the rights of the
community. As already observed, the police power of the State is "the most
essential of powers, at times most insistent, and always one of the least
limitable powers of the government". Social interests are ever expanding
and are too numerous to enumerate or even to anticipate and, therefore, it is
not possible to circumscribe the limits of social control to be exercised by
the State or adopt a construction which will confine it within the narrow
limits of article 31 (5) (b) (ii). It must be left to the State to decide when
and how and to what extent it should exercise this social control. Our
Constitution has not thought fit to leave the responsibility of depriving a
person of his property, whether it be in exercise of the power of eminent
domain or of the police power, to the will or caprice of the executive but has
left it to that of the legislature. In the matter of deprivation of property
otherwise than by the taking of possession or by the acquisition of it within
the meaning of article 31 (2) our Constitution has trusted our legislature and
has not thought fit to impose any limitation on the legislature's exercise of
the State's police power over 656 private property. Our protection against
legislative tyranny, if any, lies, in ultimate analysis, in a free and
intelligent public opinion which must eventually assert itself.
Having dealt with the correlation between
clauses (1) and (2) of article 31 as I apprehend it and having considered and
rejected the objections to the conclusions I have arrived at, I proceed now to
examine and analyse the provisions of clause (2). As I explained in my judgment
in the Darbhanga case (supra) at pp. 989-990, article 31 (2) has imposed three
conditions on the exercise of the State's power of eminent domain over private
property and those limitations constitute the protection granted to the owner of
the property as his fundamental right. It insists that this sovereign power may
be exercised only if it is authorised by a law. It is, therefore, clear that
the executive limb of the State cannot' exercise this power on its own
authority and without the sanction of law. The taking of possession or
acquisition must be for a public purpose which implies that this power cannot
be exercised except for implementing a public purpose. It cannot be exercised
for a private purpose. What is a public purpose has been elaborately dealt with
in that case and need not be discussed over again here. Finally, the law
authorising the taking of possession or acquisition of the property must
provide for compensation.
Compensation, therefore, is payable only when
the State takes possession of or acquires private property.
What, then, is the meaning of the words.
"taken possession of or acquired", and their grammatical variations
as used in article 31 (2) ? It is pointed out that the last clause of the Fifth
Amendment which deals with eminent domain uses the word "taken" and
it is suggested that as our article 31 (2) deals with the same topic of eminent
domain it will be reasonable to hold that our article 31 (2) reproduces the
American constitutional limitations and that, therefore, the expression
"taken possession of or acquired" used in our article 31 (2) 657 must
be read as having the same meaning which has been attributed , by the Judges of
the Supreme Court of the United States to the word "taken" occurring
in their Fifth Amendment. I am quite unable to accept this construction and the
line of reasoning on which it is founded. In the first place, I deprecate the
line of reasoning which starts by likening one thing with another and then ends
by (imputing the qualities of the other thing to the first mentioned thing. The
cardinal rule of interpretation is to ascertain the meaning and effect of an
enactment, constitutional or otherwise, from the words used 'therein. If the
words used have acquired a technical or special meaning, that meaning must be
given to them. To say that the expression "taken possession" of or
acquired" must be read as "taken" and given. the same wide
meaning as the 'American courts have given to the word "taken" is to ignore
the entire historical background of the law relating to compulsory acquisition
of private property by the State. Under the English law, on which 'more or less
our modern laws are rounded, the term "acquisition" has a special
meaning. It connotes the idea of transfer of title, voluntary or involuntary.
When the acquisition by the State is effected by agreement after negotiation
there is a regular conveyance transferring the title from the vendor to the
State. Even when the acquisition by the State is effected by the coercive
-process of exercising its sovereign power the idea of purchase is nevertheless
present, for there is vesting of the property in the State by operation of law.
Acquisition of private property by the State under the English law, therefore,
connotes the concept of a purchase, voluntary or involuntary, 'and involves a
'transfer of the entire title from the owner to the State or a third party for
whom the State acquires 'the property. In India, the compulsory acquisition of
private property was first introduced by Bengal Regulation I of 1824. Since
then we have had no less 'than seven Acts dealing with the compulsory
acquisition of private property by the State, namely, Act I of 1850, Act XLII
of 1850, Act XX of 1852, Act I of 658 1854, Act. XXII of 1863, Act X of 1870 and
lastly the present Land Acquisition Act, Act I of 1894. Each, of these Acts
provides for the vesting of the acquired property in the State. This means that
the owner is divested and his title passes, by operation of law to the State.
The word "acquisition", therefore, has become, as it were, a word of
art having a long accepted legislative meaning implying the transfer of title.
It will be quite wrong, according to the correct principles of interpretation,
not to give the word "acquisition" and its grammatical variations
this technical and special meaning I, therefore, respectfully agree-with what
Mukherjea J. said in Chiranjit Lal's case (supra) at page 902, namely:
"It cannot be disputed that acquisition
means and implies the acquiring of the entire title of the expropriated owner,
whatever the nature or extent of that title might be. The entire bundle of
rights which were vested in the original holder would pass on acquisition to
the acquirer leaving nothing in the former. In taking possession on the other
hand, the title to the property admittedly remains in the original holder,
though he is excluded from possession or enjoyment of the property. Article 31
(2) of the Constitution itself makes a clear distinction, between acquisition
of property and taking possession of it for a public purpose, though it places
both of them on the same footing in the sense that a legislation authorising
either of these acts must make provision for payment of 'compensation to the
displaced or expropriated' holder 'of the property. In the context in which
the, word "acquisition" appears in article 31 (2), it can only mean
and refer to acquisition of the entire, interest of the previous holder by
transfer of title and.........." It' follows from what has been stated
above that the word "acquired" used in article 31 (2) must be given
the special meaning which that word has acquired and cannot be read as
synonymous with: "taken" as used in the Fifth Amendment to the
Constitution of the United States.
659 It is then suggested that any rate the
expression "taken possession of" should be read in the sense in which
the word "taken" is understood in the American law. But even in
America the word "taken" has not always been interpreted in the same
way. The old view was that in order to be a "taken" there must be
either an actual taking of physical property or a physical occupancy of some
physical property. This view was, however, regarded as too narrow and
mechanical. It was said that the ownership of a thing, tangible or intangible,
was made up of the rights, powers, privileges and immunities concerning that
thing and that the property was not the thing itself but consisted of these
rights, powers, privileges and immunities. It was, therefore, concluded that
there must be a "taking" whenever there was any injury to property
otherwise than by the police power or taxation which, if done by a private
individual, would be actionable as a tort; in other words that it must be held
that there would be a "taking" whenever any of the rights, powers,
privileges or immunities making up the ownership was taken from the owner.
Indeed, this wide interpretation of the word "taken" was facilitated
by the fact that, in order to avoid the old, narrow view of the meaning of that
word, many of the States so amended their Constitutions as to require
compensation for property "damaged, injured or destroyed" for a
public use. (See Professor Willis' Constitutional Law, pp. 820-821). Our
Constitution-makers were well aware of the very wide meaning eventually given to
the word "taken" by the American courts. They did not, however, use
the word "taken" in article 31 (2) which they would surely have done
if they intended to reproduce the wide American concept of "taking".
Our Constitution-makers, on the contrary, deliberately chose to adopt the
narrower view point and accordingly used the words "taken possession
of" in order to make it quite clear that they required compensation to be
paid only when there was an actual taking of the property out of the possession
of the owner or possessor into the possession of the State or its nominee. Of
course the manner of 660 taking possession must depend on the nature of the
property itself. I repeat with humility that it is not permissible to ignore
the historical background and the actual words used in our Constitution.
It is finally said that both clauses (1)and
(2)of article 31deal with the topic of eminent domain and, therefore, the
expression "taken possession of or acquired" occurring in clause
(2)has the same meaning which the word "deprived" used in clause (1)
has In other words, both the clauses are concerned with deprivation of property
and there is no reason to think that the expression "taken possession of
or acquired" was used in clause (2) to indicate any particular kind or
shade of deprivation. The Obvious retort that at once comes to one's mind is
that if it were intended by our Constitution- makers to convey the same general
idea of deprivation of property by whatever means or mode it was brought about
why did they use the word "deprived" in clause (1) and why did they
use in clause (2) a different expression which, as commonly used and
understood, connotes a much narrower meaning ? It would have been quite easy to
frame clause (2) by using the word "deprived" instead of the
expression "taken possession of or acquired". As our
Constitution-makers used different expressions in the two clauses it must be
held that they had done so for a very definite purpose and that purpose could
be nothing else but to provide for compensation for only a particular kind of
deprivation specifically mentioned and not for any and every kind of
deprivation. In this connection reference may be made to Entry 33 in List I,
Entry 36 in List II and Entry 42 in List III of the Seventh Schedule. The words
used in those entries are "acquisition or requisitioning" or their
grammatical variations. The legislative power being confined only to
"acquisition or requisitioning" it will not be unreasonable to hold
that "taking of possession" referred to in article 31 (2) is in the
nature of "requisitioning". In section 299 (2) of the Government of
India Act the words "taking of possession" did not occur nor did they
occur in any of the legislative lists in the Seventh Schedule to that Act, but they
have 661 been introduced in article 31 (2) and in the three entries mentioned
above the word "requisitioning" has been added after the word
"acquisition". If "taken possession of or
acquired"-occurring in article 31 (2) be given a meaning wider than what
is meant by "acquired or requisitioned" or their variations used in
the entries then it will amount to saying that article 31- (2) even
contemplates a law with the respect to matters which are beyond the legislative
powers conferred on Parliament and the State Legislatures, for they can only
make a law with respect to "acquisition or requisitioning". To
counter this reasoning it is pointed out that Parliament under the Union List
has the residuary power of legislation and, therefore, there is no difficulty
in giving a wider meaning to the expression "taken possession of or
acquired". It will then amount to giving one and the same expression
different meanings. Thus in its application to a law made by the State
Legislature "taken possession of or acquired" must perforce mean
"requisitioned" or "acquired" whereas in its application to
a law made by Parliament it will have a much wider meaning. This is opposed to
the cardinal rules interpretation. Therefore, "taken possession of or
acquired" should be read as indicative of the concept of "requisition
or acquisition".
A further question, however, arises at this
stage and it may be now considered. Does every taking of a thing into the
custody of the State or its nominee necessarily mean the taking of possession
of that thing within the meaning of article 31 (2) so as to call for
compensation ? The exercise of police power in relation to property may
conceivably result in the extinction or destruction of the property or in the
State taking the property in its control. Take the case of the law authorising
the municipal bailiff to seize rotten vegetables or adulterated foodstuffs and
destroy them or to enter upon the property of a private owner to pull down the
dilapidated structure. 'Consider the law authorising the men of the fire brigade
to go upon the property of a private owner and demolish it to prevent the fire
from spreading to the houses beyond or on the 662 other side of that house.
Take the case of the law authorising the seizure and destruction of property
for the protection of public morality. Although in none of the above cases
there is any acquisition of property involving a transfer of title, there is in
each of the above cases a "taking of possession" and destruction of
property by the State by authority of law and yet nobody will say that any of
the above laws authorise the "taking of possession" of the property
within the meaning of article 31 (2) so that if such law does not provide for
compensation the law will be unconstitutional and void.
Take the case of the Court of Wards Act. It
is a law which authorises the State to take possession of the estate of a
disqualified proprietor and to manage it for him. The State only manages the
estate on behalf and for the benefit of the disqualified proprietor. The
disqualified proprietor does not appoint the State or any State official to
manage his estate and he cannot dismiss or discharge the manager appointed by
the State. The possession of the manager can hardly, in such a situation, be
described as the possession of the disqualified proprietor. The disqualified
proprietor is, therefore, in a sense, deprived of the possession of his estate
and the State takes the estates m its possession. The same thing may be said of
the Lunacy Act. There is no transfer of title to the State and, therefore,
there is no acquisition of property by the State. This law, however, takes the
property out of the possession of the owner who is adjudged a lunatic.' But
nobody will say that the Court of Wards Act or the Lunacy Act calls for
compensation.
The learned Attorney-General has also drawn
our attention to statutes, namely, Act XLVII of 1950 (The Insurance (Amendment)
Act, 1950) passed on the 20th May, 1950, and which has added several sections
to the Insurance
Act, 1938,
Act LI of 1951 (Railway Companies (Emergency Provisions) Act, 1951), passed on
the 14th September, 1951, and Act LXV of 1951 (Industries (Development and
Regulation) Act, 1951) enacted on the 30th October, 1951, in support of his
contention. He points out that each of those laws is :strictly Speaking outside
article 31 (5) (b) and that the 663 result of our holding that the taking of
possession authorised by those Acts fails within article 31 (2) so as to call
for compensation will be to prevent imposition of social control so urgently
necessary for the protection of the larger interests of the society. His
argument is that the taking of possession authorised by none of these three
Acts fails within article 31 (2)and only illustrates the exercise of the
State's police power. As all the three Acts were passed after the Constitution
came into force and as they may be challenged in future an argument rounded on
them will really be begging the question in debate before us. I, therefore,
prefer just to note the Attorney-General's contention and pass on and not to
base my decision on consideration of any of those Acts.
Confining myself then to the illustrations
given by me I think it is fairly clear from the foregoing discussion that none
of the laws referred to above by me authorise any "acquisition" of
property in the sense explained above and although each of them does authorise
a sort of taking of possession of the property yet nobody can contend that the
taking of possession so authorised by them fails within article 31 (2). In
other words, the taking of possession authorised by those laws does not amount
to the exercise of the power of eminent domain but is the result of the
exercise of police power. It follows, therefore, that every taking of
possession does not fail within article 31 (2). What, then, is the test for
determining whether a taking of possession authorised by a particular law is a
taking of possession in exercise of the power of eminent domain or is a taking
of possession in exercise of the State's police power. I have already referred
to the nature of the State's police power and quoted from some American
decisions showing that the State's police power extends not only to regulations
which promote public health, morals and safety but to those which promote the
public convenience or the general prosperity. In its application to private
property it, in some measure, resembles the exercise of the power of eminent
domain. Thus the police power is exercised in the interest of the community and
the power 664 of eminent domain is exercised to implement a public' purpose and
in both cases there is a taking of possession of private property. There is,
however, a marked distinction between the exercise of these two sovereign
powers. According to Professor Willis at page 717 eminent domain takes property
for use by the public or for the benefit of the public, while the police power
prevents people from so using their own property as to injure others. The
fundamental principle which is held to justify the exercise of police power is
that no one shall use his property or exercise any of his legal rights as
-injuriously to interfere with or affect the property or other legal rights of
others. (See Willoughby, Vol. Ill, p. 1775). The primary purpose of police
power is protection or prevention that persons may be restrained from so
exercising their private rights of property, contract or conduct as to infringe
the equal rights of others or to prejudice the interests of the community.
(Willoughby, Vol. III, p. 1783). When the State finds that a certain public
purpose needs fulfillment and then in order to implement that public purpose
the State takes possession of private property on its own account after
acquiring it or even without acquiring it and having taken possession of the
property the State itself uses or utilises the property or makes it over to a
third party to do so for implementing that public purpose which the State has
taken upon' itself to serve and for which the property was taken possession of
or acquired the State is said to have exercised its power of eminent domain.
This power can only be exercised under a and that law must provide for compensation.
The point to note is that in such a case the public purpose is one which the
State has set out to fulfill as its own obligation and the State takes
possession on its own account to discharge its own obligation. In police power
the State destroys or extinguishes or takes possession of property in order to
prevent the owner from indulging in anti-social activities or otherwise
inflicting injury upon the legitimate interests of other members of the
community either by using his property in a manner he should not do or by
omitting to use it in a manner 665 he should do. In such a case the State steps
in and destroys or extinguishes only to prevent an injury to social interest or
takes possession and assumes the superintendence of the property not on its own
account for implementing its own public purpose but for protecting the
interests of the community. It is easy to perceive, though somewhat difficult
to express, the distinction between the two kinds of taking of possession which
undoubtedly exists. In view of the wide sweep of the State's police power it is
neither desirable nor possible to lay down a fixed general test for determining
whether the taking of possession authorised by any particular law fails into
one category or the other.
Without, therefore, attempting any such
general enunciation of any inflexible rule it is possible to say broadly that
the aim, purpose and the effect of the two kinds of taking of possession are
different and that in each case the provisions of the particular law in question
will have to be carefully scrutinised in order to determine in which category
falls the taking of possession authorised by such law. A consideration of the
ultimate aim, the immediate purpose and the mode and manner of the taking of
possession and the duration for which such possession is taken, the effect of
it on the rights of the person dispossessed and other such like elements must
all determine the judicial verdict. The task is difficult and onerous but the
court will have to hold the scale even between the social control and
individual rights and determine whether, in the light of the constitutional
limitation, the operation of the law is confined to the legitimate sphere of
the State's police power or whether it has overstepped its limits and entered
into the field of eminent domain. It is only in this way that the Court serves
and upholds the Constitution by reconciling the conflicting social interests.
In the light of the foregoing discussions and
the conclusions reached by me I now proceed to examine the contention. that the
impugned section 7 of the amending Act (VII of 1950) is unconstitutional 'in
that it infringes Subodh Gopal Bose's fundamental right to property guaranteed
by article 31. The argument is 6--95 S.C. India/59.
666 that having purchased the entire Touzine
at a revenue sale the respondent Subodh Gopal Bose had under the old section 37
of the Act of 1859, acquired the valuable right to annul the under-tenures and
to eject the under-tenants and that he had actually obtained a decree for
ejectment but that he had been deprived of those vested rights by the operation
of section 7 of the amending Act which, in effect, gave retrospective operation
to the new section-37. Assuming that the right to annul under- tenures and to
eject under-tenants and the decree for ejectment come within the term
"property", as used in article 31(2) as to which I have considerable
doubts the question at once arises whether they have been taken possession of
or acquired under the impugned Act. The Touzi still remains the property of the
respondent Subodh Gopal Bose. He can realise rents and exercise all acts of
ownership except that he cannot exercise the right to annul the under-tenures
or eject any under-tenants or execute the decree he has obtained. But have
these last mentioned rights been taken possession of or acquired by the State
within the meaning of article 31(2) ? There is no doubt that the State has not
"acquired" these rights in the sense I have explained, for there has
been no transfer, by agreement or by operation of law, of those rights from the
respondent Subodh Gopal Bose to the State or anybody else. The impugned law has
not vested those fights in the State or anybody else and does not authorise the
State or anybody else to exercise these rights. Referring to the position of
the shareholders under the Sholapur Spinning and Weaving Company (Emergency
Provision) Act, 1950, Mukherjea J. said in his judgment in Chiranjitlal's case
(supra) at pp. 905- 906 :- "The State has not usurped the shareholders'
right to vote or vested it in any other authority. The State appoints directors
of its own choice but that it does, not in exercise of the shareholders' right
to vote but in exercise of the powers vested in it by the impugned Act. Thus
there has been no dispossession 'of the shareholders from their right of voting
at all. The same reasoning applies to the other fights of the 667 shareholders
spoken of above, namely, their right of passing resolutions and of presenting
winding up petitions.
These rights have been restricted undoubtedly
and may not be capable of being exercised to the fullest extent as long as the
management by the State continues. Whether the restrictions are such as would
bring the case within the mischief of article 19(1)(f) of the Constitution I
will examine presently; but I have no hesitation in holding that they do not
amount to dispossession of the shareholders from these rights in the sense that
the rights have been usurped by other people who are exercising them in place
of the displaced shareholders." The above reasoning applies mutatis
mutandis to the case now before us. The truth is that these rights have not
been taken possession of or acquired at all in exercise of the power of eminent
domain but have been extinguished or destroyed in exercise of the State's
police power to prevent public mischief and anti-social activities referred to
in the objects and reasons appended to the bill which eventually became the
impugned law. In the premises, the respondent Subodh Gopal Bose has been
deprived of his "property", if these rights can be properly so
described, by authority of law and the case fails within article 31(1) and not
within article 31(2) at all.
If the impugned section is regarded as
imposing a restriction on the right of Subodh Gopal Bose to hold property then,
for reasons I have mentioned, I hold such restrictions, in the circumstances of
this case, to be quite reasonable and permissible under article 19 (5). If the
impugned section operates as an extinguishment of his right to property,
treating the right to annul under- tenures and to eject under-tenants and to
execute the decree for ejectment as property, then, in my judgment, these
rights of the respondent Subodh Gopal Bose have not been taken possession of or
acquired by the State within the meaning of article 31(2) but he has been
deprived of his property by authority of law under article 31(1) which calls
for no compensation. In the premises, the plea of unconstitutionality cannot
prevail and must be rejected. I 668 would, therefore, allow the appeal with
costs both here' and in the High Court.
GHULAM HASAN J.--I concur with my Lord the
Chief Justice that the view of the High Court, Calcutta, that section 7 of the
West Bengal Revenue Sales (West Bengal Amendment) Act, 1950, is void as
abridging the fundamental rights of the first respondent under article
19(1)(f)and (5) of the Constitution cannot be sustained and I agree with the
order proposed by him.
JGANNADHADAS J.--l have had the advantage of
reading the judgments of my Lord the Chief Justice and of my learned brother
Justice S.R. Das.
On the assumption that the question raised in
this case is one that arises under article 19(1) (f) and (5) of the
Constitution--that being the footing on which the learned Judges of the High
Court dealt with the case--I agree with that portion of the judgment of my
learned brother Justice S.R. Das which holds that the impugned section 7 of the
Bengal Land-Revenue Sales (West Bengal Amendment) Act, 1950 (West Bengal Act
VII of 1950) is intra vires and for the reasons stated by him.
A larger question has, however, been raised
as to whether this is a case which falls within the scope of article 19(1) (f)
and (5) or article 31 of the Constitution. Since, on either view, we are all
agreed as to the final result of this appeal, I have felt rather reluctant to
go into this larger question. But out of profound respect for my Lord the Chief
Justice and my learned brother Justice S.R. Das who have dealt with the matter
fully and out of a sense of duty to the Court, I venture to express my views
briefly.
My Lord the Chief Justice is inclined to the
view that the fundamental right declared in article 19(1) (f) has no reference
to concrete property rights but refers only to the natural rights and freedoms
inherent in the status 'of a citizen. Even so, with respect, I fail to see how
the restrictions on the exercise of those fights referred to in article 19(5)
can be otherwise than with reference to concrete property rights. To me, it 669
appears, that article 19(1) (f), while probably meant to relate to the natural
rights of the citizen, comprehends within its scope also concrete property
rights. That, I believe, is how it has been generally understood with out
question in various cases these nearly four years in this Court and in the High
Courts. At any rate, the restrictions on the exercise of rights envisaged in
'article 19(5) appear to relate--normally, if not invariably to concrete
property rights. To construe 'article 19(1) (f) and (5) as not having reference
to concrete property rights and restrictions on them would enable the
legislature to impose unreasonable restrictions on the enjoyment of concrete
property (except where such restrictions can be brought within the scope of
article 31(2) by some process of construction). As at present advised, I am
unable to give my assent to such a view.
Now as regards article 31, I agree that
clause (1) cannot be construed as being either a declaration or implied
recognition of the American doctrine of "'police power". The negative
language used therein cannot, I think with respect, be turned into the grant,
express or implied, of a positive power. I need as my Lord the Chief Justice
has pointed out in his judgment, no such grant of police power is necessary
having regard to the scheme of the Constitution. That scheme, as I understand
it, is this. The respective 'legislatures in the country have plenary powers
assigned to them with reference to the various subjects covered by the entries
enumerated in the Lists of the Seventh Schedule by virtue of articles 245 to
255. These powers are subject to the limitation under article 13 that the power
is not to be so exercised as to infringe the fundamental rights declared in
Part III of the Constitution. And, therefore, the legislatures 'can exercise
'every power--including the police power, ' if it is necessary to import that
concept--within these :
limits, in so far as it is not provided for
in article 19(2) to (6) and article 31 (5) (b) (ii) or other specific provisions
in the Constitution, if any. The only problem thus presented to the Courts is
not as to what is the extent of the police power, 'but as to what is the scope
670 and limit of the fundamental right which is alleged to have been infringed
by legislative action. I agree with my learned brother Justice S.R. Das that
the Constitution envisages a large measure of social control a means to achieve
the goal set out in the preamble and in the directive principles enumerated in
Part IV. I am also of the view that the Courts may not ignore the directive
principles, as having no bearing on the interpretation of constitutional
problems, since article 31 categorically states that "it shall be the duty
of the State (including the legislature by virtue of the definition of 'State'
in Part III made applicable by article 36) to apply these principles in making
laws". While, therefore, I agree in thinking that a substantial measure of
social control legislation may become necessary in the fullness of time, that to
my mind, is no reason for construing article 31(1) as implying some undefined
police power, though such a consideration may have relevance in the
determination of the ambit of a fundamental right.
On the other hand, I am unable to agree with
the view that article 31(1) has reference only to the power of Eminent Domain.
I do not dispute that it comprehends within its scope the requirement of the
authority of law, as distinguished from executive fiat for the exercise of the
power of Eminent Domain. But it appears to me that its scope may well be wider.
This really depends on what is the exact meaning to be assigned to the word
"property" as herein used and on whether "deprivation"
contemplated by article 31 (I) is in substance the same as "taking
possession" or "acquisition" contemplated in article 31(2). My
Lord the Chief Justice is inclined to the view that "taking
possession" or "acquisition" is to be construed as having
reference to and meaning "deprivation" or vice versa. Undoubtedly
"taking Possession" and "acquisition" amount to
"deprivation" but the converse may not follow in the particular
context in which these words and phrases are used. With great respect, I can
see no warrant for the construction adopted except the assumption that article
31(1) and article 31(2) refer to the same and identical topic of 671 eminent
domain and that they provide for the different requirements thereof, i.e., the
requirement authority of law under article 31(1) and the requirements of public
purpose and compensation under article 31(2). But it appears to me that if in
article 31 (2) "acquisition" and "taking possession" were
meant to be synonymous with "deprivation" already used in article 31
(1) there was no reason to drop the use of the word "deprivation" in
article 31(2) and to use other words and phrases therein. For instance, article
31(2) may well have run as follows. "There shall be no deprivation of
property, movable or immovable, ............ for public purposes under any law
'authorising the same unless the law provides ........ " or some other
such clause may have been suitably drafted. It appears to me that while the
framers of the Constitution laid down the requirement of the authority of law
for "deprivation of property" with a larger connotation, they limited
the requirement of payment of compensation to what may reasonably be
comprehended within the concepts of "acquisition" and "taking
possession". With respect, to read these words and phrases in article 31
(2) as meaning the same thing as "deprivation" used in article 31 (1)
and to make the test of "substantial abridgement" or
"deprivation" as the sine qua non for payment of compensation under
article 31 (2) is to open the door for introduction of most, if not all the
elements of wide uncertainty which have gathered round the word
"taken" used in the corresponding context in the American
Constitution, notwithstanding caution to the contrary which my Lord the Chief
Justice has indicated in his judgment. I am inclined to think that it is in
order to obviate this that the framers of the Constitution deliberately avoided
the use of the word "deprived" or "deprivation" in article
31(2).
I am conscious of the principle that a
Constitution has to be liberally construed so as to advance the content of the
right guaranteed by it. But where, as in this case, there is, what appears, a
deliberate choice of the language used, and where it is not unlikely that
having regard to the goal that the Constitution has 672 set to itself in Part
IV, certain degree of caution and restraint may well have been intended as to
the limits of the right, the intendment of the language used has, in my
opinion, to prevail.
On the other hand, I am unable to agree with
my learned brother Justice S.R. Das that "acquisition" and
"taking possession" in article 31 (2) have to be taken as necessarily
involving transfer of title or possession. The words or phrases appear to me to
comprehend all cases where the title or possession is taken out of the owner
and appropriated without his consent by transfer or extinction or by some other
process, which in substance amounts to it, the possession in this context
meaning such possession as the nature of the property admits and which the law
recognises as possession.
This seems to follow from the enumeration of
the classes of property in article 31 (2) to which it is applicable and also by
reason of the broader consideration that from the point of view of the owner or
possessor whose title or possession is appropriated, every such act of
appropriation stands on the same footing. That the idea of transference of
title or possession is not necessarily to be implied by article 31 (2) appears
to me to be also indicated by article 31 (5) (b) (ii), which more often than
not, would cover cases of destruction of property. Incidentally, I may mention
that I am inclined to the view, in agreement with my LOrd the Chief Justice,
that article 31 (5) (b) (ii) is an exception to article 31 (2) and is intended
to absolve the need for payment of compensation for "acquisition" or
"taking possession" of property for the purposes specified therein.
It, therefore, seems to imply payment of compensation, if such
"acquisition" or "taking possession" of property is for
other purposes.
The question then remains as to what is
"property" contemplated by article 31 (2), apart from the specified
categories included therein by enumeration in" the 'phrase "any
interest in, or in any company owning, any commercial or industrial
undertaking."" It is no doubt true that in a wide sense, property
connotes not 673 only a concrete thing--corporeal or incorporeal--but all the
bundle of rights which constitute the ownership thereof and probably also each
individual fight out of that bundle in relation to such ownership. But in the
'context of article 31 (2)--as in the cognate context of article 19 (1)(f)--the
connotation of the word is limited by the accompanying words
"acquisition" and "taken possession". Hence out of the
general and wide category falling within the connotation of the word
"property", only that which can be the subject matter of
"acquisition" or "taking possession", is the
"property" which is within the scope of 'article 31(2). This to my
mind excludes, for instance, a bare individual right, out of the bundle of
rights which go to make up property as being itself property for purposes of
article 31 (2), unless such individual right is in itself recognised by law as
property or as an interest in property--an easement, a profits-a-prendre and
the like--and as capable of distinctive acquisition or possession. Thus for
instance in the case with which we are concerned in the present appeal, the
right to annul under-tenures cannot in itself be treated as property, for it is
not capable of independent acquisition or possession. The deprivation of it can
only amount to a restriction on the exercise of the rights as regards the main
property itself and hence must fail under article 19 (1) (f) taken with 19 (5),
according to my understanding thereof.
In my view, however, the word
"property" as used in article 31 (1) may have been intended to be
understood in a wider sense and deprivation of any individual right out of a
bundle of rights constituting concrete property may be deprivation of
"property" which would require the authority of law. I am aware of the
possible criticism that in two parts of the same article the same word must be
intended to have been used in the same sense. While this is a normal rule of
construction, it can yield to the requirement of the context arising from the'
juxtaposition of other words or phrases. To my' mind article 31 (1), though
part of an article is in essence1 an independent provision to some extent
overlapping with the requirements of the law 674 of Eminent Domain. It is on a
par with article 21. It seems to me to serve a distinct purpose over and above
that relating to the law of Eminent Domain, viz., that it relates also to
deprivation of property other than that which may fall within the scope of
article 31 (2). It enjoins that such deprivation shall not be brought about
save by authority of law.
In view of what I have said above, it follows
that the assumption with which I have started, viz., that this is a case
falling under article 19 (1) (f) and (5) is, in my opinion, correct.
In the result I agree that the appeal should
be allowed with costs here and in the High Court.
Appeal allowed.
Agent for the appellant: P.K. Bose.
Agent for respondent No.1: R.R. Biswas.
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