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PETITIONER:

THE STATE OF BIHAR

Vs.

RESPONDENT:

MAHARAJADHIRAJA SIR KAMESHWAR SINGHOF DARBHANGA AND OTHERS(C

DATE OF JUDGMENT:

27/05/1952

BENCH:

GUPTA, A.C.

BENCH:

GUPTA, A.C.

BEG, M. HAMEEDULLAH

CHANDRACHUD, Y.V.

CITATION:

1975 AIR 1083

ACT:

Bihar Land Reforms Act (XXX of 1950)---Law for abolition

of zamindaries--Validity--Necessity to provide for compensa-

tion and of public purpose--Jurisdiction of Court to enquire

into validity-Delegation of legislative powers--Fraud on the

Constitution--Constitution of India, 1950--Constitution

(First Amendment) Act, 1951 Arts. 31, 31-A, 31-B, 362.

363--Sch. VII, List II, entries 18, 36 and List III, entry

42 --Construction--Spirit of the Constitution-Right of

eminent domain--"Law", "Legislature", "Public purpose",

meanings of--Covenant of merger--Compulsory acquisition of

private property of Ruler--Acquisition of arrears of rent

paying 50%--Deduction for cost of works--Legality.

115

890

HEADNOTE:

Held per Curiam (MAHAJAN, MUKHERJEA and CHANDRASEKHARA

AIYAR JJ.)--The Bihar Land Reforms Act, XXX of 1950, is not

unconstitutional or void except with regard to the provi-

sions in s. 4 (b) and s. 23 (f) thereof. The provisions of

S. 4 (b) and s, 23 (f) are unconstitutional. Per PATAN-

JALI SASTRI C.J. and DAS J.--The whole of the Bihar Land

Reforms Act of 1950, including the provisions contained in

s. 4 (b) and s. 23(f) is constitutional and valid.

Per PATANJALI SASTRI C. 3., MAHAJAN, MUKHERJEA, DAS and

CHANDRASEKHARA AIYAR JJ.--(i) The Bihar Land Reforms Act,

XXX of 1950, is not a law in respect of a matter mentioned

in entry 18 of List II, viz., "lands and land tenures", but

a law in respect of "acquisition of property", a matter

covered by entry 36 of List II.

(ii) The obligation to pay compensation for property ac-

quired by the State is not an obligation imposed by entry 36

of List II read by itself or in conjunction with entry 42 of

list III or by the spirit of the Constitution. Consequently,

an objection to the validity of a statute in respect of

acquisition of property on the ground that it does not

provide for payment of compensation is an objection on the

ground that it contravenes the provisions of art. 31 (2) and

the jurisdiction of the Court to entertain such an objection

in respect of a statute mentioned in the Ninth Schedule to

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the Constitution is barred by art. 31 (4), art. 81-A and

art. 31-B of the Constitution. Per DAS J.-Assuming that the

obligation to pay compensation is also implicit in entry 86

of List II, in itself or read with entry 42 of List III,

even then the validity of the Act cannot be questioned by

reason of arts. 81 (4), 31-A and 31-B.

(iii) Section 32(2) of the Act which empowers the State

Government to frame rules providing for "the proportion in

which compensation shall be payable in cash and in bonds and

the manner of payment of such compensation" does not involve

any delegation of legislative powers especially as the

legislature has itself provided in s. 32(2) that the compen-

sation shall be payable in cash or in bonds or partly in

cash and partly in bonds and fixed the number of instalments

in which it should be paid. The words "subject to" in entry

36 of List II only mean that whenever a law is made by a

State Legislature in exercise of its legislative power under

entry 36, that law will be subject to the provisions of a

law made by the Parliament under entry 42 of List III. The

words do not mean that when a State makes a law under entry

36 it must lay down the principles on which compensation

payable for property acquired is to be determined and the

form and manner in which it should be given.

(iv) Entries in the Legislative Lists are merely of an

enabling character. The power conferred thereunder on the

legislatures is not coupled with any duty on the legislature

to exercise

891

such power and the principle laid down in Julius v. Bishop

of Oxford [5A.C.214] has, therefore, no application to the

Lists.

Per PATANJALI SASTRI C.J., MUKHERJEA and DAS JJ.

(MAHAJAN and CHANDRASEKHARA. AIYAR JJ. dissenting).--The

existence of a public purpose as a pre-requisite to the

exercise of the power of compulsory acquisition is an essen-

tial and integral part of the provisions of art.31 (2) and

an infringement of such a provision cannot be put forward as

a ground for questioning the validity of an Act providing

for compulsory acquisition: DAS J.--Even assuming that the

necessity of a public purpose is implied in entry 36 of List

II and/or entry 42 of List III also, arts. 31 (4), 31-A and

31-B would still protect the Act from being questioned on

the ground that the acquisition was not for a public pur-

pose. In any case the impugned Act is supported by a public

purpose.

Per MAHAJAN and CHANDRASEKHARA AIYAR jj.--The scope of

art. 31 (4) is limited to the express provisions of art. 31

(2) and though the courts cannot examine the extent or

adequacy of the provisions of compensation contained in any

law dealing with the acquisition of property compulsorily,

yet the provisions of art. 31 (4) do not in any way debar

the court from considering whether the acquisition is for a

public purpose. Though the main object of the Act, viz, the

acquisition of estates, is for a public purpose, the acqui-

sition of arrears of rent due to the zamindars on payment of

50 per cent. of their value cannot be held to be for a

public purpose and sec. 4 clause (b) of the Act is therefore

unconstitutional and void. Per MUKHERJEA J.--Assuming that

art. 31 (4) relates to everything that is provided for in

art. 31 (2) either in express terms or even impliedly and

consequently the question of the existence of a public

purpose is not justiciable, as the real object of sec. 4,

clause (b) is to deprive the man of his money, which is not

a subject-matter for acquisition under the powers of eminent

domain, without giving anything in exchange, under the guise

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of acting under entry 42 the legislature has in truth and

substance evaded and nullified its provisions altogether and

sec. 4 clause (b) is therefore unconstitutional and void.

PATANJALI SASTRI C.J.--Whatever may be the position as

regards the acquisition of money as such it is not correct

to say that a law made under entry 36 of List II cannot

authorise acquisition of choses in action like arrears of

rent due from the tenants which are covered by the term

"property" used in that entry and in art. 31. The view that

a payment in cash or in government bonds of half the amount

of such arrears leaves the zamindar without compensation

for the balance is equally fallacious. Section 4 clause (b)

is not therefore ultra vires or unconstitutional.

892

Per MAHAJAN, MUKHERJEA and CHANDRASEKHARA AIYAR JJ.

(PATANJALI SASTRI C.J, and DAS J. dissenting)--Section 23

(b) of the Act which provides for a deduction on a percent-

age basis out of the gross assets for "costs of works of

benefit to the raiyat", is ostensibly enacted under entry 42

of List III, but it is merely a colourable piece of legisla-

tion, a mere device to reduce the gross assets, which does

not really come under entry 42 and is unconstitutional.

PATANJALI SASTRI C J. and DAS J.-- The zamindars are under

an obligation to maintain and repair the minor irrigation

works in their villages which are beneficial to the raiyats

and the cost of such works is therefore a perfectly legiti-

mate deduction in computing the net assets of the estate and

sec. 23 (f) is not unconstitutional. Further, as payment of

compensation is not a justiciable issue in the case of the

impugned statute, having regard to arts. 31 (4), 31-A and

31-B, it is not open to the Court to enquire whether a

deduction which results in reducing the compensation is

unwarranted and therefore a fraud on the Constitution.

Per MAHAJAN J.--The phrase "public purpose" has to be

construed according to the spirit of the times in which the

particular legislation is enacted and so construed, acquisi-

tion of estates for the purpose of preventing the concentra-

tion of huge blocks of land in the hands of a few individu-

als and to do away with intermediaries is for a public

purpose.

DAS J.--No hard and fast definition can be laid down as

to what is a ,'public purpose" as the concept has been

rapidly changing in all countries, but it is clear that it

is the presence of the element of general interest of the

community in an object or an aim that transforms such object

or aim into a public purpose, and whatever furthers the

general interest of the community as opposed to the particu-

lar interest of the individual must be regarded as a public

purpose.

JUDGMENT:

APPEALS under article 132 (1) of the Constitution of

India from the judgment and decree dated 12th March, 1951,

of the High Court of Judicature at Patna (Shearer, Reuben

and Das JJ.) in Title Suits Nos. 1 to 3 and Mis. Judicial

Cases Nos. 230-234, 237-244, 2-16 to 254, 257, 261 to 264,

266, 262, 270 to 277, 287-290 and 297 of 1951. PETITION No.

612 of 1951, a petition under article 32 of the Constitution

for enforcement of fundamental rights, was also heard along

with these appeals.

The facts that gave rise to these appeals and petition

are stated in the judgment.

893

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M.C. Setalvad (Attorney-General for India) and Mahabir

Prasad (Advocate-General of Bihar) with G.N. Joshi, Lal

Narain Singh and Alladi Kuppuswami for the State of Bihar.

P.R. Das (B. Sen, with him) for the respondents in Cases

Nos. 339, 319, 327,330 and 332 of 1951.

Sanjib K. Chowdhury. S.N. Mukherjee, S.K. Kapur for the

respondents in Cases Nos. 309, 328, and a36 of 1951.

Urukramdas Chakravarty for the respondents in Cases

Nos. 326,337 and 344 of 1951.

Raghosaran Lal for the respondents in Cases Nos. 310.311

and 329 of 1951.

S C. Mazumdar for the respondent in Case No. 313 of

1951.

S. Mustarid and Jagadih Chandra Sinha for the respond-

ents in Cases Nos. 307, 313, 320, 321, and 322

of 1951.

Ray Parasnath for the respondent in Case No. 331 of

1951.

S.K. Kapur for the petitioner in Petition No. 612 of

1951.

1952. May 2, 5. The Court delivered judgment as follows

:--

PATANJALI SASTRI C.J.--These appeals and petitions which

fall into three groups raise the issue of the constitutional

validity of three State enactments called The Bihar Land

Reforms Act, 1950 (Bihar Act XXX of 1950), The Chief Jus-

tice, in his judgment, dealt with the above Cases and Peti-

tion and also Petitions Nos. 166, 228, 237, 245, 246, 257,

268, 280, to 285, 287 to 289, 317, 318 and 487 of 1951

(relating to the Madhya Pradesh Abolition of Proprietary

Rights (Estates Mahals, Alienated Lands) Act, 1950) and

Cases Nos. 283 to 295 of 1951 (relating to the Uttar Pradesh

Zamindari Abolition and Land Reforms Act, 1950).

894

The Madhya Pradesh Abolition of Proprietary Rights

(Estates, Mahals, Alienated Lands) Act, 1950 (No. I of

1951), and

The Uttar Pradesh Zamindari Abolition and Land Reforms

Act, 1950 (U. P. Act No. 1 of 1951) (hereinafter referred to

as the Bihar Act, the Madhya Pradesh Act and the Uttar

Pradesh Act, respectively).

The common aim of these statutes, generally speaking, is

to abolish zamindaries and other proprietary estates and

tenures in the three States aforesaid, so as to eliminate

the intermediaries by means of compulsory acquisition of

their rights and interests, and to bring the raiyats and

other occupants of lands in those areas into direct relation

with the Government. The constitutionality of these Acts

having been challenged in the respective State High Courts

on various grounds, the Bihar Act was declared unconstitu-

tional and void on the ground that it contravened article 14

of the Constitution, the other grounds of attack being

rejected, while the other two Acts were adjudged constitu-

tional and valid. The appeals are directed against these

decisions. Petitions have also been filed in this Court

under article 32 by certain other zamindars seeking determi-

nation of the same issues. The common question which arises

for consideration in all these appeals and petitions is

whether the three State Legislatures, which respectively

passed the three impugned statutes, were constitutionally

competent to enact them, though some special points are also

involved in a few of these cases.

As has been stated, various grounds of attack were put

forward in the courts below, and, all of them having been

repeated in the memoranda of appeals and the petitions,

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they would have required consideration but for the amendment

of the Constitution by the Constitution (First Amendment)

Act, 1951 (hereinafter referred to as the Amendment Act)

which was passed by the provisional Parliament during the

pendency of these proceedings. That Act by inserting the new

articles 31-A and

895

31-B purported to protect, generally, all laws providing for

the acquisition of estates or interests therein, and specif-

ically, certain statutes, including the three impugned Acts,

from attacks based on article 13 read with other relevant

articles of Part III of the Constitution. And the operation

of these articles was made retrospective by providing, in

section 4 of the Amendment Act, that article 3 I-A shall be

"deemed always to have been inserted" and. in article 31-

B, that none of the specified statutes "shall be deemed ever

to have become void". The validity of the Amendment Act was

in turn challenged in proceedings instituted in this Court

under article 32 but was upheld in Sankari Prasad Singh Deo

v. Union of India and Stale of Bihar(1). The result is that

the impugned Acts can no longer be attacked on the ground of

alleged infringement of any of the rights conferred by the

provisions of Part III.

It will be noted, however, that articles 31-A and 31-B

afford only limited protection against one ground of chal-

lenge, namely that the law in question is "inconsistent

with, or takes away or abridges any of the rights conferred

by any provisions of this Part". This is made further clear

by the opening' words of article 3 I-A "notwithstanding

anything in the foregoing provisions of this Part". The

Amendment Act thus provides no immunity from attacks based

on the lack of legislative competence under article 246,

read with the entries in List II or List III of the Seventh

Schedule to the Constitution to enact the three impugned

statutes, as the Amendment Act did not in any way affect the

Lists. Mr. P.R. Das, leading counsel for the zamindars,

accordingly based his main argument in these proceedings on

entry 36 of List Ii and entry 42 of List III which read as

follows:

"36. Acquisition or 'requisitioning of property, except

for the purposes of the Union, subject to the provisions of

entry 42 of List III.

42. Principles on which compensation for property ac-

quired or requisitioned for the purposes of the Union

(1) [1952] S.C.R. 89.

896

or of a State or for any other public purpose is to be

determined, and the form and the manner in which such com-

pensation is to be given".

The argument may be summarised thus. Entry 36 of List II

read with article 246 (3) was obviously intended to autho-

rise a State Legislature to exercise the right of eminent

domain, that is, the right of compulsory acquisition of

private property. The exercise of such power has been

recognised in the jurisprudence of all civilised countries

as conditioned by public necessity and payment of compensa-

tion. All legislation in this country authorising such

acquisition of property from Regulation I of 1824 of the

Bengal Code down to the Land Acquisition Act, 1894, proceed-

ed on that footing. The existence of a public purpose and

an obligation to pay compensation being thus the necessary

concomitants of compulsory acquisition of private property,

the term "acquisition" must be construed as importing, by

necessary implication, the two conditions aforesaid. It is

a recognised rule for the construction of statutes that,

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unless the words of the statute clearly 80 demand, a statute

is not to be construed so as to take away the property of a

subject without compensation: Attorney-General v. De

Keyser's Royal Hotel(2). The power to take compulsorily

raises by implication a right to payment: Central Control

Board v. Cannon Brewery(2). The words "subject to the provi-

sions of entry 42 of List III" in entry 86 reinforce the

argument, as these words must be taken to mean that the

power to make a law with respect to acquisition of property

should be exercised subject to the condition that such law

should also provide for the matters referred to in entry 42,

in other words, a two-fold restriction as to public purpose

and payment of compensation (both of which are referred to

in entry 42) is imposed on the' exercise of the law-making

power under entry 36. In any case, the legislative power

conferred under entry 42 is a power coupled with a duty to

exercise it for the benefit of the owners whose properties

are compulsorily acquired

(1) [1920] A.C. 508, 542. (2) [1919] A.C. 744.

897

under a law made under entry 36. For all these reasons the

State Legislatures, it was claimed, had no power to make a

law for acquisition of property without fulfilling the two

conditions as to public purpose and payment of compensation.

On the basis of these arguments, counsel proceeded to

examine elaborately various provisions of the impugned Acts

with a view to show that the compensation which they purport

to provide has, by "various shifts and contrivances", been

reduced to an illusory figure as compared with the market

value of the properties acquired. The principles laid down

for the computation of compensation operated in reality as

"principles of confiscation", and the enactment of the

statutes was in truth a "fraud on the Constitution", each of

them being a colourable legislative expedient for taking

private properties without payment of compensation in viola-

tion of the Constitution, while pretending to comply with

its requirements. Nor were these statutes enacted for any

public purpose; their only purpose and effect was to destroy

the class of zamindars and tenure-holders and make the

Government a "super-landlord". While such an aim might

commend itself as a proper policy to be pursued by the

political party in power, it could not, in law, be regarded

as a public purpose.

Mr. Somayya, who appeared for some of the zamindars in

the Madhya Pradesh group of cases, while adopting the argu-

ments of Mr. Das, put forward an additional ground of objec-

tion. He argued that the impugned Acts -were not passed in

accordance with the procedure prescribed in article 31 (3)

which provides

"No such law as is referred to in clause (2) made by the

Legislature of a State shall have effect unless such law.

having been reserved for the consideration the President,

has received his assent".

Learned counsel stressed the words "law" and "legisla-

ture" and submitted that, inasmuch as the legislature of a

State included the Governor (article

116

898

168) and a bill could become a law only after the Governor

assented to it under article 200, clause (3) of article 31

must be taken to require that a State law authorising com-

pulsory acquisition of property should receive the Gover-

nor's as well as the President's assent, the former to make

it a law and the latter to give it "effect". As the rela-

tive bills were reserved in each case by the Governor con-

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cerned after they were passed by the House or Houses of

Legislature, as the case may be, without giving his assent

under article 200. the statutes did not satisfy the require-

ments of article 31 (3) and so could not have "effect". This

ground of attack, it was claimed, was not excluded by arti-

cle 31-A or article 31-B as it was not based on infringement

of fundamental rights.

Dr. Ambedkar, who appeared for some of the zemindars in

the Uttar Pradesh batch of cases, advanced a different line

of argument. He placed no reliance upon entry 36 of List II

or entry 42 of List III. He appeared to concede what Mr. Das

so strenuously contested, that those entries, concerned as

they were with the grant of power to the State Legislature

to legislate with respect to matters specified therein,

could not be taken, as a matter of construction, to import

an obligation to pay compensation. But he maintained that a

constitutional prohibition against compulsory acquisition of

property without public' necessity and payment of compensa-

tion was deducible from what he called the "spirit of the

Constitution", which, according to him, was a valid test for

judging the constitutionality of a statute The Constitu-

tion, being avowedly one for establishing liberty, justice

and equality and a government of a free people with only

limited powers, must be held to contain an implied prohibi-

tion against taking private property without just compensa-

tion and in the absence of a public purpose. He relied on

certain American decisions and text-books as supporting the

view that a constitutional prohibition can be derived by

implication from the spirit of the Constitution where no

express prohibition has been enacted in that behalf.

Articles 31-A and 31-B barred

899

only objections based on alleged infringements of the funda-

mental rights conferred by Part III, but if, from the other

provisions thereof, it could be inferred that there must be

a public purpose and payment of compensation before private

property could be compulsorily acquired by the State, there

was nothing in the two articles aforesaid to preclude objec-

tion on the ground that the impugned Acts do not satisfy

these requirements and are, therefore, unconstitutional.

In addition to the aforesaid grounds of attack, which

were common to all the three impugned statutes, the validity

of each of them or of some specific provisions thereof was

also challenged on some special grounds. It will be conven-

ient to deal with them after disposing of the main conten-

tions summarised above which are common to all the three

batches of cases.

These contentions are, in my judgment devoid of of

substance and force and I have no hesitation in rejecting

them. The fact of the matter is the zemindars lost the

battle in the last round when this Court upheld the consti-

tutionality of the Amendment Act which the Provisional

Parliament enacted with the object, among others, of

putting an end to this litigation. And it is no disparage-

ment to their learned counsel to say that what remained of

the campaign has been fought with such weak arguments as

overtaxed ingenuity could suggest.

It will be convenient here to set out the material

provisions of the Constitution on which the arguments before

us have largely turned.

Article 31 (2). No property movable or

immovable ......... shall be acquired for public purposes

under any law authorising ......... such acquisition

unless the law provides for compensation for the property

acquired and either. fixes the amount of compensation or

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specifies the principles on which and the manner in which

the compensation is to be determined and given.

(3) No such law as is referred to in clause (2) made by

the Legislature of a State shall have effect unless

900

such law, having been reserved for the consideration of the

President, has received his assent.

(4) If any bill pending at the commencement of this

Constitution in the Legislature of a State has, after it has

been passed by such Legislature, been reserved for the

consideration of the President and has received his assent,

then, notwithstanding anything in this Constitution, the law

so assented to shall not be called in question in any court

on the ground that it contravenes the provisions of clause

(2).

(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 here-

after make-

(i) for the purpose of imposing or levying any tax or

penalty, or

(ii) for the promotion of public health or the preven-

tion 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 ......

31-A. Saving of laws providing for acquisition of

estates, etc.--(1) Notwithstanding anything in the forego-

ing provisions of this Part no law providing for the acqui-

sition by the State of any estate or of any rights therein

or for the extinguishment or modification of any such rights

shall be deemed to be void on the ground that it is incon-

sistent with, or takes away or abridges any of the rights

conferred by any provisions of this Part: .......

31-B. Validation of certain Acts and Regulations.-

Without prejudice to the generality of the provisions con-

tained in article 31-A none of the Acts and Regulations

specified in the Ninth Schedule nor any of the provisions

thereof shall be deemed to be void, or ever to have become

void, on the ground that such Act,

901

Regulation or provision is inconsistent with, or takes away

or abridges any of the rights conferred by any provisions of

this Fart, and notwithstanding any judgment, decree or

order of any court or tribunal to the contrary, each of the

said Acts and Regulations shall, subject to the power of

any competent Legislature to repeal or amend it, continue in

force.

It will be seen that the scope of article 31 (4) is at

once narrower and wider than that of article 31-A; the

former has application only to statutes which were pending

in the legislature at the commencement of the Constitution,

whereas the latter is subject to no such restriction.

Again, article 31 (4) excludes attack only on the ground

of contravention of article 31 (2), while article 3 I-A bars

objections based on contravention of other provisions of

Part III as well, such as articles 14 and 19. This indeed

was the reason for the enactment of articles 31-A and 31-B,

as the words of exclusion in article 31 (4) were found inapt

to cover objections based on contravention of article 14.

On the other hand, the law referred to in article 31 (4)

covers acquisition of any kind of property, while article

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31-A relates only to the acquisition of a particular kind of

property, viz., estates and rights therein, and what is more

important for our present purpose, the non obstante clause

in article 31 (4) overrides all other provisions in the

Constitution including the List of the Seventh Schedule,

whereas a law which falls within the purview of article a

1-A could only prevail over "the foregoing provisions of

this Part". Now, the three impugned statutes fall within the

ambit of both article 31 (4) and articles 31-A and 31-B.

Putting aside the latter articles for the moment, it is

plain that, under article 31 (4), the three impugned stat-

utes are protected from attack in any court on the ground

that they contravene the provisions of article 31(2). These

provisions, so far as they are material here, are (i) that a

law with respect to acquisition of property should authorize

acquisition only for a public purpose and (ii) that such

law should provide for compensation, etc. Mr. Das, while

admitting that

902

(ii) was a "provision" of article 31 (2), submitted that (i)

was not. According to him clause (2)assumed but did not

"provide" that acquisition should be authorised only for a

public purpose. I cannot accept that view. In my opinion,

the clause seeks also to impose a limitation in regard to

public purpose. The clause was evidently worded in that

form as it was copied (with minor variations) from section

299 (2) of the Government of India Act, 1935, which was

undoubtedly designed to give effect to the recommendation of

the Joint Parliamentary Committee in para. 369 of their

Report that two conditions should be imposed on expropria-

tion of private property: "We think it (the provision

proposed) should secure that legislation expropriating or

authorising the expropriation of the property of private

individuals should be lawful only if confined to expropria-

tion for public purpose and if compensation is determined

either in the first instance or in appeal by some independ-

ent authority". It is thus clear that section 299 (2) was

intended to secure fulfilment of two conditions subject to

which alone legislation authorising expropriation of private

property should be lawful, and it seems reasonable to con-

clude that article 31 (2) was also intended to impose the

same two conditions on legislation expropriating private

property. In other words, article 31 (2)must be under-

stood as also providing that legislation authorising expro-

priation of private property should be lawful only if it was

required for a public purpose and provision was made for

payment of compensation. Indeed if this were not so, there

would be nothing in the Constitution to prevent acquisition

for a non-public or private purpose and without payment of

compensation--an absurd result. It cannot be supposed that

the framers of the Constitution, while expressly enacting

one of the two well-established restrictions on the exercise

of the right of eminent domain, left the other to be import-

ed from the common law. Article 81 (2) must therefore, be

taken to provide for both the limitations in express terms.

An attack on the

903

ground of contravention of these provisions implies that the

law in question authorises acquisition without reference to

a public purpose and without payment of compensation. This

was precisely the objection raised both by Mr. Das and Dr.

Ambedkar to the constitutional validity of the impugned

statutes, and such objection really amounts to calling those

laws in question on the ground that they contravened the

provisions of article 31 (2), though learned counsel stoutly

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denied that they were relying on the provisions of article

31(2). The denial, however, seems to me to be based on a

quibbling distinction without a difference in substance.

Their main attack was really grounded on the absence of

these two essential prerequisites of valid legislation

authorising acquisition of private property, though Mr. Das

would deduce them by implication from entry 36 of List II

and entry 42 of List III, while Dr. Ambedkar sought to

derive them from the spirit of the Constitution. But this

is only a form of stating the objection which, in substance,

is that the statutes are bad because of the absence of a

public purpose and the omission to provide for a just com-

pensation. This, in fact, was the burden of the argument

before us. If, then, these two grounds of attack fall within

the purview of article 31(4), the words "notwithstanding

anything in this Constitution" are apt to exclude such

grounds howsoever they are derived--whether from the entries

in the legislative Lists or from the spirit of the Constitu-

tion-for both alike are covered by those words. Indeed, if

the objection based on the absence of a public purpose and

of a provision for just compensation were still to be open,

clause (4) of article 31 would be meaningless surplusage.

It is obvious that that clause was specially designed to

protect the impugned statutes and other laws similarly

enacted from attack in a court of law on the aforesaid

grounds and, if they were nevertheless to be considered as

not being within the protection, it is difficult to see what

the use of article 31 (4) would be. Learned counsel were

unable to suggest any. The fact is that article 31 (4) was

904

designed to bar the jurisdiction of courts to entertain

objections to the validity of a certain class of enactments

on the two-fold ground referred to above, and its whole

purpose would stand defeated if the zemindars' contention

were to prevail.

Even if it were open to the court to consider these

grounds of objection, they are, in my opinion, unsustain-

able. As pointed out already, article 31-A operates as an

exception to article 31 (2) read with article 13, only in

respect of laws authorising acquisition of "estates" and

rights therein, and this exception is to be deemed to have

been part of the Constitution from its commencement. But it

has no application to laws authorising acquisition of other

kinds of property and, as regards these, the requirements as

to public purpose and payment of compensation are still

enforced by the express provisions of article 31 (2). In the

face of the limitations on the State's power of compulsory

acquisition thus incorporated in the body of the Constitu-

tion, from which "estates" alone are excluded, it would, in

my opinion, be contrary to elementary canons of statutory

construction to read, by implication, those very limitations

into entry 36 of List II. alone or in conjunction with entry

42 of List III of the Seventh Schedule, or to deduce them

from "the spirit of the Constitution", and that, too, in

respect of the very properties excluded.

It is true that under the common law of eminent domain

as recognised in the jurisprudence of all civilized coun-

tries, the State cannot take 'the property of its subject

unless such property is required for a public purpose and

without compensating the owner for its loss But, when these

limitations are expressly provided for and it is further

enacted that no law shall be made which takes away or

abridges these safeguards, and any such law, if made, shall

be void, there can be no room for implication, and the words

"acquisition of property" must be understood in their natu-

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ral sense of the act of acquiring property, without import-

ing into the phrase an obligation to pay

905

compensation or a condition as to the existence of a public

purpose. The entries in the Lists of the Seventh Schedule

are designed to define and delimit the respective areas of

legislative competence of the Union and State Legislatures,

and such context is hardly appropriate for the imposition of

implied restrictions on the exercise of legislative powers,

which are ordinarily matters for positive enactment in the

body of the Constitution.

There are indications in article 31 itself to show that

the expression "acquisition of property in entry 36 of List

II does not in itself carry any obligation to pay compensa-

tion. Clause (4) of that article postulates a "law" autho-

rising acquisition of property but contravening the

provisions of clause (2), that is without a public purpose

or payment of compensation.' Similarly, clause (5)(b), which

excepts certain categories of "laws" from the operation of

clause (2), contemplates laws being made without a public

purpose or payment of compensation. Such laws can be made by

a State Legislature only under entry 36 which must, there-

fore, be taken to confer a legislative power unfettered by

any implied restrictions. It was suggested that the laws

referred to in sub-clause (b) of clause (5) are laws made in

exercise of the taxing power or the police power of the

State as the case may be, and that the sub-clause was in-

serted only by way of abundant caution. This is hardly a

satisfactory answer. Whatever may be the position as to a

taxing law, in regard to the source of legislative power,

laws under heads (2) and (3) of subclause (b) must neces-

sarily be referable to, and derive their competence from the

legislative power under entry 36 of List II, in so far as

they purport to authorise acquisition of any property, for

the police power of the State is only the general power to

regulate and control the exercise of private rights and

liberties in the interests of the community and does not

represent any specific head of legislative power. And even

that answer is not available to Mr. Das in regard to clause

(4).

117

906

Nor is the position improved for the zemindars by read-

ing entry 36 of List II and entry 42of List III together.

It was said that the words "subject to the provisions of

entry 42 in List III" must be taken to mean that the law-

making power under entry 36 could only be exercised subject

to the two conditions as to public purpose and payment of

compensation, both of which are referred to in entry 42.

Those words, in my opinion, mean no more than that any law

made under entry 36 by a State Legislature can be displaced

or overridden by the Union Legislature making a law under

entry 42 of List III. That they cannot bear the interpreta-

tion sought to be put upon them by Mr. Das is clear from the

fact that similar words do not occur in entry 33 of List I

which confers on Parliament the power of making laws with

respect to acquisition or requisitioning of property for the

purposes of the Union. For, if the restrictive conditions

as to public purpose and payment of compensation are to be

derived only from those words, then it must follow that in

the absence of those words in entry 33, Parliament can make

laws authorising acquisition or requisitioning of property

without a public purpose and a provision for compensation.

No reason was suggested why parliamentary legislation with

respect to acquisition or requisitioning of property is

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to be free from such restrictive conditions while State

legislation should be subject to them. The fact is that the

law-making power of both Parliament and State Legislatures

can be exercised only subject to the aforesaid two restric-

tions, not by reason of anything contained in the entries

themselves, but by reason of the positive provisions of

article 31 (2), and, as laws falling under article 31 (4)or

under articles 31-A and 31-B cannot be called in question in

a court of law for non-compliance with those provisions,

such laws cannot be struck down as unconstitutional and

void.

It was further contended that the power to make a law

under entry 42 of List III was a power coupled with a duty,

because such law was obviously intended.

907

for the benefit of the expropriated owners, and where the

Legislature has authorised such expropriation, it was also

bound to exercise the power of making a law laying down the

principles on which such owners should be compensated for

their loss. Reliance was placed in support of this somewhat

novel contention on the well-known case of Julius v. Bishop

of Oxford.(1) That case, however, has no application here.

While certain powers may be granted in order to be exercised

in favour of certain persons who are intended to be benefit-

ed by their exercise, and on that account may well be re-

garded as coupled with a duty to exercise them when an

appropriate occasion for their exercise arises, the power

granted to a legislature to make a law with respect to any

matter cannot be brought under that category, It cannot

possibly have been intended that the legislature should be

under an obligation to make a law in exercise of that power,

for no obligation of that kind can be enforced by the court

against a legislative body.

Mr. Somayya's argument based on clause (3) of article

31, to which reference has been made earlier, is equally

untenable. It is true that the "Legislature" of a State

includes the Governor and that a bill passed by such

Legislature cannot become a law until it receives the Gover-

nor's assent. Article 200, however, contemplates one of

three courses being adopted by the Governor when a bill is

presented to him after it is passed by the House or Houses

of Legislature: (1) to give his assent, or (2) to withhold

assent, or (3) to reserve the bill for the consideration of

the President. The first proviso, to that article deals

with a situation where the Governor is bound to give his

assent and has no relevance here. The second proviso makes

reservation compulsory where the bill would, "if it became

law", derogate from the powers of the High Court, but such

reservation, it is important to note, should be made without

the Governor himself giving his assent to the bill. It is

significant that the article does not contemplate the

(1) L.R. 5 H.L. 214.

908

Governor giving his assent and thereafter, when the bill has

become a full-fledged law, reserving it for the considera-

tion of the President. Indeed, the Governor is prohibited

from giving his assent where such reservation by him is made

compulsory. The Constitution would thus seem to contemplate

only "bills" passed by the House or Houses of Legislature

being reserved for the consideration of the President and

not "laws" to which the Governor has already given his

assent. It was said that article 31 (3) provides a special

safeguard which, in order to ensure that no hasty or unjust

expropriatory legislation is passed by a State Legislature,

requires for such legislation the assent of both the Gover-

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nor and the President, and, to make this clear, the words,

'law" and "legislature" were deliberately used in clause

(a). I am unable to agree with this view. The term "legis-

lature" is not always used in the Constitution as including

the Governor, though article 168 makes him a component part

of the State Legislature. In article 173, for instance, the

word is clearly used in the sense of the ,,Houses of legis-

lature" and excludes the Governor. There are other provi-

sions also where the word is used in contexts which exclude

the Governor. Similarly the word "law" is sometimes loosely

used in referring to a bill. Article 31 (4), for instance,

speaks of a ''bill" being reserved for the President's

assent "after it has been passed" by the "legislature of a

State" and of "the law so assented to." If the expression

"passed by the legislature" were taken to mean "passed by

the Houses of the legislature and assented to by the Gover-

nor" as Mr. Somayya would have it understood, then, it

would cease to be a "bill" and could no longer be reserved

as such. Nor is the phrase "law so assented to" strictly

accurate, as the previous portion of the clause makes it

clear that what is reserved for the President's assent and

what he assents to is a "bill" and not a law. The phrase

obviously refers to what has become a law after receiving

the assent of the President. Similarly, article 31 (3)

must, in any judgment, be understood as

909

having reference to what, in historical sequence, having

been passed by the House or Houses of the State Legislature

and reserved by the Governor for the consideration of the

President and assented to by the latter, has thus become a

law. If it was intended that such a law should have the

assent of both the Governor and the President, one would

expect to find not only a more clear or explicit provision

to that effect, but also some reference in article 200 to

the Governor's power to reserve a measure for the considera-

tion of the President after himself assenting to it. On the

other hand, as we have seen, where reservation by the Gover-

nor is made obligatory, he is prohibited from giving his

assent.

In the view I have expressed above that the objections

based on the-lack of a public purpose and the failure to

provide for payment of just compensation are barred under

article 31 (4) and are also devoid of of merits, it becomes

unnecessary to consider what is a public purpose and whether

the acquisition authorised by the impugned statutes sub-

serves any public purpose. Nor is it necessary to examine

whether the scheme of compensation provided for by the

statutes is so illusory as to leave the expropriated owners

without any real compensation for loss of their property.

Turning now to the special points arising in particular

cases, it was urged by Mr. Das that section 4 (b) of the

Bihar Act, which provides that all arrears of rent, royal-

ties and cesses due for any period prior to the date of the

vesting of the estates in Government "shall vest and be

recoverable by the State" was unconstitutional and void. In

the first place, there was no public purpose to be served by

the acquisition of such property. The Government evidently

lacked funds for the payment of even the illusory compensa-

tion provided for in the Act, and accordingly, hit upon the

device of acquiring these arrears on payment of only 50

per cent. of their value as provided in section 24. Raising

funds

910

for augmenting the Treasury could not be regarded as a

public purpose such as would justify expropriation of pri-

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vate property Secondly, it was said that these 'arrears'

would represent so much money when realised, and money could

not be the subject of compulsory acquisition as the obliga-

tion to pay compensation would practically turn such acqui-

sition into a forced loan. Nor could the payment of 50 per

cent of the face value of the arrears be regarded as compen-

sation for the loss of the total arrears, for, refund of one

half of a sum of money taken away could never make good the

loss of the. balance. The argument proceeds on a misconcep-

tion. Whatever may be the position as regards the acquisi-

tion of money as such, it is not correct to say that a law

made under entry 36 of List II cannot authorise acquisition

of choses in action like arrears of rent due from the ten-

ants which are covered by the term "property" used in that

entry and in article 31. It is equally fallacious to argue

that a payment in cash or 'in Government bonds of half the

amount of such arrears leaves the zemindar without compensa-

tion for the balance. It is unrealistic to assume that

arrears which had remained uncollected over a period of

years during which the zemindar as landlord had the advan-

tage of summary remedies and other facilities for collec-

tion, represented so much money or money's worth in his

hands when he was to cease to be a landlord and to have no

longer those remedies and facilities. When allowance is

made for doubtful and irrecoverable arrears and the trouble

and expense involved in the collection of the rest of them

the payment of 50 per cent. of the face value of the entire

arrears must, as it seems to me, be considered reasonable

and fair compensation for taking them over. Indeed, the

contention leaves one almost wondering what advantage the

zemindars would gain by seeking to overthrow a provision in

the Act which may well prove beneficial to them. However

that may be, for the reasons already indicated, article 31

(4) bars a challenge on these two grounds, and the objec-

tions to section 4 (b) cannot be entertained.

911

An attack was also directed against section 28 (1) (f)

which provides for a deduction on a percentage basis out of

the gross assets as "cost of works of benefit to the raiyats

of such estate or tenure", in ascertaining the net assets on

which compensation is to be based. It was said that there

was no evidence to show that it was usual for the zemindars

to incur such expenditure, and that the deduction was a mere

contrivance to reduce the compensation payable for the

acquisition of their estates. The provision for such deduc-

tion was therefore a fraud on the Constitution. The argu-

ment, however, overlooks the well-established obligation of

the Zemindars to maintain and repair the irrigation tanks

and channels in the villages comprised in their estates. As

the Privy Council pointed out in The Madras Railway Co. v.

Zemindar of Carvatenagaram(1) "the zemindars have no power

to do away with these tanks in the maintenance of which

large numbers of people are interested, but are charged,

under Indian law, by reason of their tenure, with the duty

of preserving and repairing them". These are, obviously,

the works of benefit to the raiyats of the estate, and their

cost, which the zemindars are thus under an obligation to

bear, is a perfectly legitimate deduction in computing the

net assets of the estate. If the zemindars had, in the

past, neglected this duty, that does not affect the proprie-

ty of the deduction before determining the compensation

payable to them. It is, therefore, idle to say that it is a

mere contrivance for reducing the compensation. This apart,

if, as I have endeavoured to show, payment of compensation

is not a justiciable issue in the case of the impugned

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statutes, having regard to articles 31 (4),31-A and 3 1-B,

it is not open to the court to inquire whether a deduction

which results in reducing the compensation is unwarranted

and therefore a fraud on the Constitution.

LastLy, Mr. Das turned his attack on section 32 (2) read

with section 43 (2) (p). Under the former provision compen-

sation was payable in cash or in bonds or partly in cash and

partly in bonds. The bonds

(1) (1874) 1 I.A, 364,

912

were to be either negotiable or non-negotiable and nontrans-

ferable and were payable in forty equal instalments. Power

was given to the State Government under section 43 (2)(p) to

frame rules providing for "the proportion in which compensa-

tion shall be payable in cash and in bonds and the manner

of payment of such compensation". It was argued that,

while the Constitution conferred power on the legislatures

under entry 42 of List III to make laws with respect to the

principles on which compensation for property acquired was

to be determined and the form and the manner in which

such compensation was to be given, it was not competent

for the Bihar Legislature to delegate this essential legis-

lative power to the executive government. Section 43 (2)(p)

being thus void and inoperative, section 32 (2) must also

fall to the ground, being vague and incapable by itself of

being given effect to, and, as payment of compensation was

an inextricable part of the scheme of acquisition under the

Act, the entire Act must go. I see no force in this argu-

ment. The legislature has applied its mind to the form in

which compensation has to be paid and has fixed the number

of equal instalments in which it should be paid. It, has

also provided for payment of interest on the compensation

amount in the meantime. The proportion in which the compen-

sation could be paid in cash and in bonds and the intervals

between the instalments have been left to be determined by

the executive government as those must necessarily depend on

the financial resources of the State and the availability of

funds in regard to which the executive government alone can

have special means of knowledge. By no standard of permis-

sible delegation can the vesting of such limited discretion

by a legislature in an administrative body be held incompe-

tent. The same remark applies to the delegation of rule-

making powers in regard to payment of compensation under the

other two Acts.

It was contended by Mr. Somayya that the Madhya Pradesh

Act was not duly passed as no question was put by the Speak-

er, at the third reading of the bill

913

on the motion that it be passed into law, as required by the

provisions of rule "20 (1) of the rules governing legisla-

tive business then in force, and that the omission was not a

mere "irregularity of procedure" which the court is barred

from enquiring into under article 212 (1)of the Constitu-

tion. Rule 20 (1) reads as follows:

"A matter requiring the decision of the Assembly shall

be decided by means of a question put by the Speaker on a

motion made by a member".

What appears to have happened is this. One of the

Ministers moved that "The C.P. and Berar Abolition of Pro-

prietary Rights (Estates, Mahals, Alienated Lands) Bill,

1949, (No. 64 of 1949) as considered by the House be passed

into law". Thereupon the Speaker read the motion to the

House, and this was followed by several speeches welcoming

the measure, amid general acclamation in the House, as a

great boon to the tillers of the soil. The official report

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of the proceedings prepared by the Secretary under rule

115(1), however, did not record that the Speaker put the

question in the usual form: "The question is etc." and that

the motion was carried. It was argued that the official

report being the only "authentic record of the proceedings

of the Assembly" under rule 115(2), it must be taken to be

conclusively established that the motion was not put to the

House and carried by it. There is, in my opinion, no sub-

stance in the objection. The original Bill signed and

authenticated by the Speaker was produced before us, and it

contains an endorsement by the speaker that the Bill

was.passed by the Assembly on 5th April, 1950. The endorse-

ment was signed by the Speaker on 10th May, 1950. The offi-

cial report of the proceedings appears to have been prepared

on 21st June, 1950, and was signed by the Speaker on 1st

October, 1950. When he signed the report the Speaker did not

apparently notice the omission as to the motion having been

put and carried. Such omission cannot, in the face of the

explicit statement by the Speaker endorsed on the Bill, be

taken

118

914

to establish that the Bill was not put to the House and

carried by it. In any case, the omission to put the motion

formally to the House, even if true, was, in the circum-

stances, no more than a mere irregularity of procedure, as

it is not disputed that the overwhelming majority of the

members present and voting were in favour of carrying the

motion and no dissentient voice was actually raised.

Mr. Somayya raised a further contention that in regard

to the malguzari lands covered by the Madhya Pradesh Act,

articles 31-A and 31-B could be of no assistance to the

Government, as such lands are not "estates" within the

meaning of clause (2) of article 31-A with the result

that .the objection based on article 14 as to discrimination

in the matter of payment of compensation must prevail. It

will be recalled that the High Court of Patna held the Bihar

Act unconstitutional as being discriminatory in providing

for payment of compensation, and it was to overcome that

difficulty that articles 31-A and a1-B were inserted in the

Constitution. It was conceded by the learned Advocate-

General of Madhya Pradesh that these malguzari lands could

not be regarded as estates within the meaning of article

31-A read with the Tenancy Acts in force in Madhya Pradesh,

but he contended that, inasmuch as article 31-B purported to

validate specifically the Madhya Pradesh Act among others,

and as that article was not limited in its application to

estates, the objection could not prevail. Mr. Somayya,

however, submitted that the opening words of article 31-B,

namely, "Without prejudice to the generality of the provi-

sions contained in article 31-A" showed that the mention of

particular statutes in article 31-B read with the Ninth

Schedule was only illustrative, and that, accordingly,

article 31-B could not be wider in scope. Reliance was

placed in support of this argument upon the decision of the

Privy Council in Sibnath Banerji's case(1). I cannot agree

with that view. There is nothing in article 31-B to indi-

cate that the specific mention of

(1) [1945] F.C.R. 195 (P.C.)

915

certain statutes was only intended to illustrate the appli-

cation of the general words of article 31-A. The opening

words of article 31-B are only intended to make clear that

article 31-A should not be restricted in its application by

reason of anything contained in article 31-B and are in no

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way calculated to restrict the application of the latter

article or of the enactments referred to therein to acquisi-

tion of "estates." The decision cited affords no useful

analogy.

In some of the cases the estates sought to be acquired

are situated in what was previously the territory of Indian

States and belong to their former rulers. On the merger of

those States in Madhya Pradesh or Uttar Pradesh, as the case

may be, by virtue of the "covenant of merger" entered into

between the rulers and the Government of India the proper-

ties in question were recognised to be the "private proper-

ty" of the Rulers. In these eases it was urged that that

estates sought to be acquired formed part of the Rulers'

"personal rights" guaranteed to them under the instrument of

merger, and that neither the impugned statutes nor the

notifications issued thereunder could deprive the Ruler of

such properties in contravention of article 362. The Attor-

ney-General had several answers to this argument, including

the bar under article 363 to interference by courts in

disputes arising out of agreements, covenants, etc., by

Rulers of Indian States to which the Government of India was

a party. But a short and obvious answer is that there was

no contravention of any guarantee or assurance given

by the Government under the covenant of merger, as the

estates in question are sought to be acquired only as the

"private property" of the Rulers and not otherwise. The

compensation provided for, such as it is, is in recognition

of their 'private proprietorship, as in the case of any

other owner. There is, therefore, no force in this objec-

tion. In Appeal No. 285 of 1951 preferred by the Raja of

Kapurthala, where a similar objection was raised, it was

further alleged that the privy purse of the Ruler was fixed

at a low figure in consideration of the Oudh

916

Estate being left to be enjoyed by him as his private

property, and that its compulsory taking over would deprive

him of the means of discharging his liability to maintain

the members of his family. In the absence of any material

to establish the facts, the allegation calls for no consid-

eration.

Certain other minor points were also raised in some of

the cases but they are not worth mentioning as they proceed-

ed either on a misapprehension or were palpably unsound.

Thus all the objections raised to the constitutional

validity of the Bihar Act, the Madhya Pradesh Act and the

Uttar Pradesh Act or any part thereof fail and are over-

ruled,

MAHAJAN J.--This is an appeal under article 132 (3) of

the Constitution of India from a judgment of the Full Bench

of the High Court of Judicature at Patna, dated the 12th

March, 1951, whereby the High Court declared the Bihar Land

Reforms Act, 1950, ultra vires on the ground of its in-

fringement of article 14 of the Constitution, but decided

against the respondent on all other points.

On the 30th December, 1949, a Bill intituled the Bihar

Land Reforms Bill was introduced in the Legislative Assem-

bly of Bihar and was passed by both the Houses of Legisla-

ture, and after having been reserved for the consideration

of the President of India, received his assent on the 11th

September, 1950. The Act was published in The Bihar Govern-

ment Gazette on the 25th September, 1950, and on the same

day a notification under section 1 (3) of the Act was pub-

lished declaring that the Act would come into force imme-

diately. On the same day, a notification under section 3

of the Act was published stating that the estates and ten-

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ures belonging to the respondent and two others passed to

and became vested in the State of Bihar under the provisions

of the Act. The respondent filed a petition in the High

Court of Judicature at Patna under article 226 of the Con-

stitution, challenging the constitutionality of the

917

said Bihar Land Reforms Act and praying for a writ in the

nature of mandamus to be issued on the State of Bihar re-

straining it from acting in any manner by virtue of, or

under the provisions of, the said Act. This application was

heard along with three title suits and other similar appli-

cations filed by various zemindars of Bihar by a Special

Bench of the High Court. By three separate but concurring

judgments, the Court declared the Act to be unconstitutional

and void on the ground of its infringement of fundamental

right under article 14 of the Constitution.

The validity of the Act was attacked before the High

Court on the following grounds:

1. That the Bihar Legislature had no competence to pass

it.

2. That it contravened clause (1) of article 81 of the

Constitution.

3. That the vesting of the estates in the State of Bihar

under the Act being in effect an acquisition of the estates,

it was invalid as that acquisition was not for a public

purpose and the provision for compensation was illusory.

4. That it contravened article 19 (1) (f) of the Consti-

tution.

5. That some of its provisions were invalid on the

ground of delegation of legislative powers.

6. That it was a fraud on the Constitution.

7. That it was unconstitutional as it contravened arti-

cle 14 of the Constitution.

The Court held as follows :--

1. That the Bihar Legislature was competent to enact the

legislation.

2. That the Act did not contravene article 31 (1) of the

Constitution.

3. That the acquisition of the estates and tenures was

for a public purpose.

4. That the subject-matter of the Act fell under article

31 (4) of the Constitution.

918

5. That article 19 (1) (f) had no application.

6. That whatever powers were delegated to the executive

were permissible.

7. That the Act was not a fraud on the Constitution.

8. That the Act was unconstitutional as it contravened

article 14 of the Constitution.

During the pendency of the appeal against the decision

of the High Court the Union Government with a view to put an

end to the litigation of the zamindars brought forward a

Bill to amend the Constitution and this was passed by the

requisite majority as the Constitution (First Amendment)

Act, 1951. The zamindars brought petitions under article 32

of the Constitution impugning the Amendment Act itself as

unconstitutional and void. All these petitions were disal-

lowed. by this Court on the 5th October, 1051, and it was

held that the Constitution (First Amendment) Act, 1051, had

been validly enacted. In view of the Amendment Act any

argument regarding the unconstitutionality of the Bihar Act

based on the ground that the provisions of that Act con-

travened articles 14, 19 or 31 of the Constitution does

not survive and the Act is not open to challenge. on any

such ground. As the Act has been held invalid by the High

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Court solely on the ground that it violated the provisions

of article 14 of the Constitution, the basis of the judgment

declaring the Act to be unconstitutional is no longer tena-

ble and it has therefore to be reversed in case this Court

agrees with the decision of the High Court on the points

decided against the respondent.

Mr. P.R. Das for the respondent frankly conceded that no

objection to the validity of the Act at this stage could be

raised on the ground that it contravened any of the provi-

sions of Part III of the Constitution. He, however, sup-

ported the decision of the Court on grounds decided against

him by that Court and urged the following points

919

1. That it was not within the competence of the Bihar

State Legislature to enact the impugned Act.

2. That the acquisition of the estates not being for

public purpose, the Act was unconstitutional.

3. That the legislative power in various sections of the

Act has been abdicated in favour of the executive and such

abdication of power was unconstitutional.

4. That the Act was a fraud on the Constitution and that

certain parts of the Act were unenforceable on account of

vagueness and indefiniteness.

The foundation of Mr. P.R. Das's attack on the vires of

the Act mainly rests on the contention that it is implicit

within the language of entry 36 of List II of the Seventh

Schedule of the Constitution that property could not be

acquired without payment of compensation, the only effect of

a compulsory power of acquisition against the individual

being that there is the power to oblige him to sell and

convey property when the public necessities require it, but

that the power to take compulsorily raises by implication a

right to payment; in other words, there is a concomitant

obligation to pay and the power to acquire is inseparable

from the obligation to pay compensation and as the provi-

sions of the statute in respect of payment of compensation

are illusory, it is unconstitutional.

As regards article 31 (2) of the Constitution, it is

said that it deals with the fundamental right regarding

property which is expressed in the clause in negative lan-

guage. In entry 36 it is expressed in an affirmative form.

The provisions of articles 31 (4) and 31-A and 31-B, though

they deprive the expropriated proprietor of his rights

provided in Part III of the Constitution, do not in any way

affect the ambit of entry 36 and empower the State Legisla-

ture to make a law for compulsory acquisition of property

without payment of compensation in the true sense of that

term. Emphasis is laid on the words "subject to the provi-

sions of entry 42" contained in entry 36 and it is contended

that the exercise of legislative power under

920

entry 36 is conditional on exercise of power under entry 42,

that one could not be exercised without the other and that

the power conferred by the two entries had to be construed

on the assumption that the acquisition was to be paid for.

It is further contended that the legislative power in entry

42 is a power coupled with duty which the legislature was

bound to exercise for the benefit of the person whose

property was taken in exercise of the legislative power

under entry 36. It is also said that the Bihar Legislature

had legislated both under entry 36 and entry 42 and intended

to take the property conditional on payment of compensation

but if it transpires that the provisions it has made about

payment of compensation are illusory, then that part of the

Act would be void and as it could not have been intended by

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the legislature to pass the Act in any truncated form in

which it would remain if the provisions regarding compensa-

tion are taken out of it, the whole Act should be held

unconstitutional.

To appreciate the contentions raised by Mr. Das on the

question of the competence of the Bihar Legislature to enact

the Bihar Land Reforms Act, 1950, it is necessary to refer

to its provisions and to see on what subjects the legisla-

ture has purported to enact the law.

The title of the Act indicates that the law provides for

some kind of land reform in Bihar. Its preamble gives no

indication as to the nature of these reforms except that it

provides for the constitution of a Land Commission to

advise the State Government on the agrarian policy, whatever

that expression may mean. The dominant purpose of the Act

is that of transference to the State of the interests of

proprietors and tenure-holders in land and of the mortgagees

and lessees of such interests including the interests in

trees, forests, fisheries, jalkars, ferries, huts, bazars,

mines and minerals. Section 3 provides that the Government

may, from time to time, by notification declare the estates

or tenures mentioned therein to have passed and become

vested in the State. Section 4 mentions ,the consequences

of such vesting. It enacts that the

921

interests of the proprietor or tenure-holder in any building

or part of a building comprised in such estate or tenure and

used primarily as office or cutchery for the collection of

rent of such estate or tenure, and his interests in trees,

forests, fisheries, jalkars, huts, bazars and ferries and

all other sairati interests as also his interest in the

subsoil including any rights in mines and minerals,

whether discovered or undiscovered, or whether being worked

or not, inclusive of such rights of lessee of mines and

minerals, comprised in such estate or tenure (other than the

interests of raiyats or under raiyats) shall vest absolutely

in the State free from all incumbrances. Clause (b) pro-

vides that all arrears of rents, including royalties and all

cesses together with interest, if any, due thereon for any

period prior to the date of vesting, which were recoverable

in respect of the estates or tenures of the proprietor or

tenure-holder and the recovery of which was not barred by

any law of limitation shall vest in, and be recoverable by,

the State. The expression "arrears of rent" includes ar-

rears in respect of which suits were pending on the date of

vesting or in respect of which decrees whether having the

effect of rent decree or money decree were obtained before

the date of such vesting and had not been satisfied and were

not barred by limitation and also includes the costs allowed

by such decrees. In other words, all outstandings in the

nature of rents and rent decrees that were due to the pro-

prietors or tenure-holders before the date of vesting and

before the State had any right, title or interest in the

estate would also pass to it. This seems to be a peculiar

and rather extraordinary consequence of the vesting of an

estate. Normally it has no relation to and cannot be re-

garded as an incident of the transference of the estates.

The clause is in effect,an independent provision laying down

that monies due to the proprietor or tenure-holder during

the period antecedent to the vesting and not realized by him

but which were in the course of realization, whether by

private effort or by means of pending suits or decrees

including the costs of those

119

922

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suits and decrees will stand forfeited to the State. In

clause (c) the liability of the proprietors or tenureholders

for payment of arrears of revenue and cesses to the Govern-

ment prior to the date of vesting is kept alive. The other

consequences of vesting are that no suit can be maintained

for recovery of any money from a proprietor or tenure-holder

which is secured by a mortgage or charge on the estate and

no such estate or tenure covered by the Act is liable to.

attachment. The Collector is entitled to take charge of the

estate and to inspect the documents and accounts which he

thinks necessary to do for the management of the estate or

tenure. Section 5 permits the proprietors and tenure-hold-

ers to retain their homesteads but only in the capacity of

tenants free from the obligation to pay rent. Section 6

allows them to retain possession of lands in their khas

possession or in the possession of lessees under them, on

payment of rent as raiyats to the State in the status of

occupancy tenants. Section 7 provides that buildings to-

gether with lands on which such buildings stand and in the

possession of proprietors and tenure-holders and used as

golas, factories or mills shall be retained by them on

payment of rent. Section 8 gives a right of appeal to a

party aggrieved against the Collector's order. In section0

it is provided that all mines comprised in the estate or

tenure as were in operation at the commencement of this Act

and were being worked directly by the proprietor or tenure-

holder shall be deemed to have been leased by the State

Government to the proprietor of tenure-holder. This section

does not include within its scope mines on which considera-

ble money might have been spent but which are actually not

in Operation. An artificial definition has been given in

section (2) sub-clause (m) to the expression "mines in

operation" as meaning mines regarding the working of which

notice has been served on Government under the Indian Mines

Act. Section 10 keeps alive subsisting lease of mines and

minerals, the lessee being deemed to be a lessee under the

Government. Buildings and lands appurtenant to a mine stand

transferred

923

to the State under the provisions of section 11 and they are

to be deemed' to be leased by the State to the lessee with

effect from the date of vesting. Section 12 lays down the

constitution of a Mines Tribunal. Section 13 provides for

the management of the estates and tenures that vest in the

State. Sections 14, 15, 16, 17 and 18 make provisions

relating to the investigation of debts of proprietors and

tenure-holders and lay down the procedure for payment of

those debts. In section 19 provision is made for the ap-

pointment of compensation officer. Certain directions are

given in sections 20 and 21 regarding the procedure to be

adopted by the compensation officer when the proprietor has

only a certain share in an estate and where certain trusts

have been created by the tenure-holder or proprietor.

Section 22 defines "previous agricultural year" and the

phrase "gross assets" with reference to a proprietor or

tenure-holder. "GroSs assets" in the Act means the aggre-

gate of the rents including all cesses, which were payable

in respect of the estates or tenures of such proprietor or

tenureholder for the previous agricultural year, whether

payable by a subordinate tenant or the raiyats.those rents.

In the expression "gross assets" is also included the gross

income of the previous agricultural year from fisheries,

trees, jalkars, ferries, huts, bazars and sairati interests.

Gross income from forests has to be calculated on the basis

of the average gross annual income of twenty-five agricul-

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tural years preceding the agricultural year in which the

date of vesting falls, which in the opinion of a forest

officer, the forests would have yielded if they had been

placed during the said period of twenty-five years under the

management of the State.

Section 23 lays down the method of computation of net

income. It provides that the net income of a proprietor or

tenure-holder shall be computed by deducting from the gross

asset of such proprietor or tenure-holder, as the case may

be, the following :

(a) any sum payable as land revenue or rent;

924

(b) any sum payable by such proprietor as agricultural

income-tax in respect of any agricultural income derived

from such estate or tenure for the previous agricultural

year;

(c) any sum payable by such proprietor or tenure holder

as income-tax in respect of any income derived from such

estate or tenure, other than royalties for the previous

agricultural year;

(d) any sum payable as chaukidari tax or municipal tax,

(e) cost of management of such estate or tenure at rates

varying from five to twenty per cent. according to the

amount of the gross asset. The lowest limit fixed is at Rs.

2,000, and the highest at any amount exceeding Rs. 15,000.

These rates appear to have been fixed in an arbitrary

manner bearing no relation whatsoever to the actual cost of

management. To illustrate, in the case of the Maharaja of

Darbhanga whose estate has a gross income of nearly forty-

eight lakhs, the cost of management, according to this

calculation, would work' out to a sum of nine and a half

lakhs, which on the face of it looks startling; it can

hardly have any relation to the costs actually incurred.

The expense ratio under the head "management would ordinari-

ly be lowest for the highest gross income. It goes up in

proportion to the reduction in the amount of gross income.

The Act has, however, reversed this rule of economics with

the result that part of the money that on the principles

stated for determining compensation would be payable by way

of compensation to the proprietor or tenure-holder stands

forfeited by this artificial reduction of the net income.

Clause (f) provides for deduction from the gross assets of

cost of works of benefit to the raiyats of such estates or

tenures at rates varying from four to twelve and a half per

cent., the rate of four per cent. being applicable where

the gross asset does not exceed Rs. 5,000, and the rate of

twelve and a half per cent being applicable if the gross

asset exceeds Rs. 25,000. It is obvious

925

that the calculation of the cost of works of benefit to the

raiyats at a fiat rate without any reference to the actual

expenses that might have been incurred is a provision of a

confiscatory character. It artificially reduces the net

income which is the basis of the assessment of compensation.

The last clause(g) of this section allows deduction of any

other tax or legal imposition, payable in respect of such

estate or tenure not expressly mentioned in the earlier

clauses. Section 24 provides the manner of determination of

the compensation payable to the proprietor or tenureholder.

It lays down a sliding scale for the assessment of compensa-

tion. Where the net income does not exceed Rs. 500, the

compensation payable is twenty times the net income and

where the net income computed exceeds Rs. 1,00,000, it is

payable at three times the amount. The compensation in such

cases is merely nominal. In the case of the Maharaja of

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Darbhanga, the estate acquired also comprised and purchased

by him by spending about a crore of rupees and also com-

prised mortgages, to the tune of half a crore. All these

vest in the Bihar State along with the inherited zemindaris

of the Maharaja and arrears of rent amounting to Rs.

30,00,000, while the total compensation payable is nearly a

sum of Rs. 9,00,000. This section further provides that to

the amount thus payable shall be added the amount of fifty

per cent. of the arrears of rent referred to in clause (b)

of section 4 along with the amount of compensation Payable

in respect of mines and minerals as determined under section

25. The section also lays down the method of assessment of

compensation in the case of persons who have only a share in

the zamindari or have other minor interests in the tenures

or estates where the estate or tenure is held in trust etc.,

or where they are of an impartible nature. In the case of

mines and minerals the method of assessment is laid down in

section 25. It has either to be fixed by agreement or by a

tribunal appointed for the purpose. The subsequent sections

provide lot the preparation of compensation roll and for

hearing of appeals etc, Section 32

926

lays down the method and manner of payment of compensation.

Sub-section (2) of this section enacts that the amount of

compensation shall be paid in cash or in bonds or partly in

cash and partly in bonds. The bonds shall be either negotia-

ble or non-negotiable and non-transferable and be payable in

forty equal instalments to the person named therein and

shall carry interest at two and a half per cent. per annum

with effect from the date of issue. Any disputes about

compensation between the proprietors or tenure holders

have to be determined by a tribunal appointed by the State

Government. Section 34 provides for the constitution of a

commission called the Bihar Land Commission. The other

provisions of the Act are of a miscellaneous character and

require no special mention. The last section authorizes

the State Government to make rules for carrying out the

provisions of the Act.

From this survey of the Act it appears that the law

enacted might be taken to relate to several items in the

legislative lists. ie., rights in or over land and land

tenures, forests, fisheries, mines and minerals, acquisition

of property and also principles on which compensation for

property acquired is to be determined. The pith and sub-

stance of the legislation however, in my opinion, is the

transference of ownership of estates to the State Government

and falls within the ambit of legislative head entry 36 of

List II. There is no scheme of land reform within the

framework of the statute except that a pious hope is ex-

pressed that the commission may produce one. The Bihar

Legislature was certainly competent to make the law on the

subject of transference of estates and the Act as regards

such transfers is constitutional.

The Act further deals with the realization of arrears of

rents due before the date of vesting of the estates to the

zemindars and forfeits fifty per cent. of such realization

to the State exchequer. It also in an indirect manner

forfeits the State exchequer part of the compensation money

which would have been payable

927

to the proprietors or tenureholders if the net income was

not reduced by deduction from the gross income of items of

artificial nature which have no relation to any actual

expenses. Both these provisions will be separately dealt

with hereinafter as, in my opinion, the enactment of these

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provisions is unconstitutional

Having held that the Bihar Act is constitutional as

regards transfer of estates to the State and that this is

mainly an enactment under legislative head 36 of List II, it

is convenient now to examine the contention of Mr. Das to

the effect that in the contents of the power conferred on

the legislature by this entry their exists a concomitant

obligation to pay compensation and that as the provisions

regarding payment of compensation are illusory, the Act is

unconstitutional and that article 31 (4) of the Constitution

does not afford any protection against this attack.

For a proper appreciation and appraisal of the proposi-

tion of Mr. P. R. Das that the obligation to pay compensa-

tion is implicit in the language of entry :36 of List II of

the Seventh Schedule and that the power to take compulsorily

raises by implication a right to payment, the power to

acquire being inseparable from the obligation to pay compen-

sation, it is necessary to examine briefly the origin of the

power of the State on the subject of compulsory acquisition

of property. This power is a sovereign power of the State.

Power to take property for public use has been exercised

since olden times. Kent speaks of it as an inherent sover-

eign power. As an incident to this power of the State is

the requirement that property shall not be taken for public

use without just compensation. Mr. Broom in his work on

Constitutional Law says, "Next in degree to the right of

personal liberty is that of enjoying private property with-

out undue interference or molestation, and the requirement

that property shall not be taken for public use without just

compensation is but an affirmance of the great doctrine

established by the common law for the protection of private

property. It is founded in natural equity and is

928

laid down as a principle of universal law." In the words of

Lord Atkinson in Central Control Board v. Cannon Brewery Co.

Ltd.(1), the power to take compulsorily raises by implica-

tion a right to payment.

On the continent the power of compulsory acquisition is

described by the term "eminent domain". This term seems to

have been originated in 1625 by Hugo Grotius. who wrote of

this power in his work "De Jure Belli et Pacis" as follows:

"The property of subjects is under the eminent domain of

the State, so that the State or he who acts for it may use

and even alienate and destroy such property, not only in the

case of extreme necessity, in which even private persons

have a right over the property of others, but for ends of

public utility, to which ends those who founded civil socie-

ty must be supposed to have intended that private ends

should give way. But it is to be added that when this is

done the State is bound to make good the loss to those who

lose their property."

The relationship between the individual's right to

compensation and the sovereign's power to condemn is dis-

cussed in Thayer's Cases on Constitutional Law (Vol. I, p.

953) (mentioned on page 3 of Nichols on Eminent Domain) in

these words :--

"But while this obligation (to make compensation) is

thus well established and clear, let it be particularly

noticed upon what ground it stands, viz., upon the natural

rights of the individual. On the other hand, the right of

the State to take springs from a different source, viz., a

necessity of government. These two, therefore, have not the

same origin; they do not come, for instance, from any im-

plied contract between the State and the individual, that

the former shall have the property, if it will make compen-

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sation; the right is no mere right of pre-emption, and it

has no condition of compensation annexed to it, either

precedent or subsequent; but there is a right to take,

(1) [1919] A.C. 744.

929

and attached to it as an incident, an obligation to make

compensation; this latter, morally speaking, follows the

other, indeed like a shadow but it is yet distinct from it,

and flows from another source."

Shorn of all its incidents, the simple definition of the

power to acquire compulsorily or of the term "eminent do-

main" is the power of the sovereign to take property for

public use without the owner's consent. The meaning of the

power in its irreducible terms is. (a) power to take, (b)

without the owner's consent, (c) for the public use. The

concept of the public use has been inextricably related to

an appropriate exercise of the power and is considered

essential in any statement of its meaning. Payment of

compensation, though not an essential ingredient of the

connotation of the term, is an essential element of the

valid exercise of such power. Courts have defined "eminent

domain" so as to include this universal limitation as an

essential constituent of its meaning. Authority is universal

in support of the amplified definition of "eminent domain"

as the power of the sovereign to take property for public

use without the owner's consent upon making just compensa-

tion.

It is clear, therefore, that the obligation for payment

of just compensation is a necessary incident of the power of

compulsory acquisition of property, both under the

doctrine of the English Common Law as well as under the

continental doctrine of eminent domain, subsequently adopted

in America.

The question for consideration is whether this obliga-

tion to pay compensation for compulsory acquisition of

property has been impliedly laid down by the constitution

makers in our Constitution under legislative head in entry

36 of List II and entry 33 of List I, or whether this all

important obligation which follows compulsory acquisition as

a shadow has been put in express and clear terms somewhere

else in the Constitution. To my mind, our Constitution has

raised this obligation to pay compensation for the

120

930

compulsory acquisition of property to the status of a funda-

mental right and it has declared that a law that does not

make provision for payment of compensation shall be void. It

did not leave the matter to be discovered and spelt out by

learned arguments at the Bar from out of the contents of

entry 36; they explicitly provided for it in. article 31 (2)

of the Constitution. As the obligation to pay has been made

a compulsory part of a statute that purports to legislate

under entry 33 of List I and entry 36 of List II, it is not

possible to accede to the contention of Mr. P.R. Das that

the duty to pay compensation is a thing inherent in the

language of entry 36. I agree with the learned Attorney-

General that the concept of acquisition and that of compen-

sation are two different notions having their origin in

different sources. One is founded on the sovereign power of

the State to take, the other is based on the natural right

of the person who is deprived of property to be compensated

for his loss. One is the power to take, the other is the

condition for the exercise of that power. Power to take was

mentioned in entry 36, while the condition for the exercise

of that power was embodied in article 31 (2) and there was

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no duty to pay compensation implicit in the content of the

entry itself.

Reference in this connection may be made to the Govern-

ment of India Act, 1935. By section 299 of that statute a

fetter was imposed on the power of legislation itself. The

Constitution, however, declared laws not providing for

compensation as void and it not only placed a fetter on the

power of legislation but it guaranteed the expropriated

proprietor a remedy in article 32 of the Constitution for

enforcement of his fundamental right. I am therefore of the

opinion that Mr. Das is not right in his contention that

unless adequate provision is made by a law enacted under

legislative power conferred by entry 36 of List I for com-

pensation, the law is unconstitutional as entry 36 itself

does not authorize the making of such a law without provid-

ing for compensation. Then

931

it was said that entry 36 of List II was linked up with

entry 42 of the Concurrent List by the words "subject to"

occurring therein and that the validity of any law made in

exercise of legislative power under entry 36 was conditional

on the simultaneous exercise of the legislative power under

entry 42 and because there has been no valid exercise of

this power (the provisions of the impugned Act regarding the

determination of compensation being illusory), the legisla-

tion under entry 36 fails. In my opinion, this contention is

unsound. The two entries referred to above are merely heads

of legislation and are neither interdependent nor complemen-

tary to one another. It is by force of the provisions of

article 31 (2) that it becomes obligatory to legislate

providing for compensation under entry 42 of the Concurrent

List in order to give validity to a law enacted under entry

36 and not by reason of the use of the wards "subject to" in

the wording of the entry. No such words occur in entry 33

of the Union List. It cannot reasonably be argued that

Parliament could make a law for compulsory acquisition of

property for its purposes with out fulfilling the condition

of making a law under entry42 of the Concurrent List, but a

State Legislature in this respect is in a different situa-

tion. Such a contention, in my opinion, is untenable. The

only purpose of the words "subject to" occurring in entry

36 is to indicate that legislation under entry 36 would be

subject to any law made by Parliament in exercise of its

legislative power under entry 42 of the Concurrent List.

Both legislatures can legislate under entry 42 but the

Parliamentary statute made in exercise of powers under this

entry would have preference over a State law in case of

repugnancy and it was for this reason that reference was

made to entry 42 in the head of legislation mentioned in the

State List under entry 36. In other words, it only

means.that whenever a law is made by a State Legislature in

exercise of its legislative power under entry 36, that law

will be subject to the provisions of a Parliamentary statute

made in exercise of its legislative powers under entry 42 of

the Concurrent List.

932

Lastly it was urged that the legislative power conferred

in entry 42 of the Concurrent List is a power conferred for

the benefit of the expropriated owner and that the legisla-

ture is bound to exercise this power for his benefit whenev-

er it takes property under its compulsory powers,. in other

words, it was said that the power conferred by the entry was

coupled ,. with a duty to exercise it. Reference was made in

this connection to the observations of Lord Cairns in Julius

v. Bishop of Oxford(1). The principle of that decision is

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that where power is conferred in the nature of a trust there

is an obligation to exercise it for the benefit of the

cestui que trust. These observations do not have any appo-

site application to the case of legislative powers con-

ferred by a constitution. The entries in the lists are

merely legislative heads and are of an enabling character.

Duty to exercise legislative power and in. a particular

manner cannot be read into a mere head of legislation. If

the argument of the learned counsel was sound, then it would

be open to this Court to issue a mandamus to the legislature

to exercise its power of legislation under entry 42, if it

failed to do so. Mr. Das. when faced with this question,

had to admit that he could not seriously contend that a

legislature could be directed to enact a statute if it did

not wish to do so. Failure to make a law under entry 42

cannot make a law made under entry 36 bad. In my opinion,

the decision in the case of Julius v. Bishop of Oxford (1)

has no relevancy to the matter before us.

The crucial point for determination in these appeals is to

discover the extent to which article 31 (4)of the Constitu-

tion or the new articles 31-A and a1-B have deprived the

expropriated proprietor of his rights or remedies in re-

spect of this matter and of the guaranteed right to get

compensation for property acquired. Article 31 (4) is in

these terms :-

"If any Bill pending at the commencement of this Con-

stitution in the legislature of a State has, after it has

been passed by such Legislature, been

(1) (1880) 5 App. Cas. 214.

933

reserved for the consideration of the President and has

received his assent, then, notwithstanding anything in this

Constitution, the law so assented to shall not be called in

question in any court on the ground that it contravenes the

provisions of clause (2)."

Articles 31-A and 31-B are in these terms :--

"31-A. (1) Notwithstanding anything in the foregoing

provisions of this Part, no law providing for the acquisi-

tion by the State of any estate or of any rights therein or

for the extinguishment or modification of any such rights

shall be deemed to be void on the ground that it is incon-

sistent with, or takes away or abridges any of the rights

conferred by any provisions of this Part:

Provided that where such law is a law made by the Legis-

lature of a State, the provisions of this Article shall not

apply thereto unless such law, having been reserved for the

consideration the President has received his assent.

(2) In this article

(a) the expression ' estate' shall in relation to any local

area have the same meaning as that expression or its local

equivalent has in the existing law relating to land tenures

in force in that area, and shall also include any jagir,

inam or musafi or other similar grant.

(b) the expression 'rights', in relation to an estate, shall

include any rights vesting in a proprietor, sub-proprietor,

under proprietor, tenure-holder or other intermediary and

any rights or privileges in respect of land revenue.

31-B. Without prejudice to the generality of the provi-

sions contained in article 31-A, none of the Acts and Regu-

lations specified in the Ninth Schedule nor any of the

provisions thereof shall be deemed to be void, or even to

have become void, on the ground that such Act, Regulation or

provision is inconsistent with or takes away or abridges any

of the rights conferred by, any provisions of this Part, and

notwithstanding any judgment, decree or order of any court

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or tribunal

934

to the contrary, each of the said Acts and Regulations

shall, subject to the power of any competent legislature to

repeal or amend it, continue in force.

The language of article 31(4) is unequivocal in its

terms and states that when a Bill has received the assent of

the President according to the procedure prescribed in

article 31(3) and (4) then, notwithstanding anything in this

Constitution, the law so assented to shall not be called in

question in any court on the ground that it contravenes the

provisions of clause (2).

In order to determine the scope of this clause, it is

necessary to determine what are the specific provisions of

clause (2) which clause (4) makes unjusticiable. A strict

construction has to be placed on the language of this

clause, it being in the nature of a debarring provision. In

my opinion, the provisions of sub-clause (2) made unjusti-

ciable by clause (4), relate to the determination and pay-

ment of compensation. The whole purpose of the clause is to

make the obligation to pay compensation a condition prece-

dent to the compulsory acquisition of property. The words

of the clause preceding the word "unless" are merely de-

scriptive of the law, the validity of which would be ques-

tionable if there was no provision for determination and for

payment of compensation for the property taken in its con-

tents. The use of the word "such" fully supports this

interpretation. The mandate of the clause is that such a

law must contain a provision for payment of compensation to

the expropriated proprietor. According to the Oxford

Dictionary, (Vol. 8, p. 1526) the expression provision"

when used in statutes, has reference to what is expressly

provided therein. What article 31 (4) really says is

that the contravention of the express provisions of

article 31 (2) relating to payment of compensation will not

be a justiciable issue. It has no reference to anything

that may be implied within the language of that clause. The

existence of a "public purpose" is undoubtedly an implied

condition of the exercise of compulsory powers of acquisi-

tion by the State, but the language of article 31 (2) does

not

935

expressly make it a condition precedent to acquisition. It

assumes that compulsory acquisition can be for a "public

purpose" only, which is thus inherent in such acquisition.

Hence article 31(4), in my opinion, does not bar the juris-

diction of the court from inquiring whether the law relating

to compulsory acquisition of property is not valid because

the acquisition is not being made for a public purpose. This

is also the view taken by the learned Judges of the Patna

High Court. The sovereign power to acquire property compul-

sorily is a power to acquire it only for a public purpose.

There is no power in the sovereign to acquire private

property in order to give it to private persons. Public

purpose is a content of the power itself. Reference in this

connection may be made to Willoughby's Constitutional Law

(page 795). Therein it is stated,

"As between individuals, no necessity, however great, no

exigency, however imminent, no improvement, however valu-

able, no refusal, however unneighbourly, no obstinacy,

however unreasonable, no offers of compensation, however

extravagant, can compel or require any man to part with an

inch of his estate."

Public purpose is an essential ingredient in the very

definition of the expression "eminent domain" as given by

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Nichols and other constitutional writers, even though obli-

gation to pay compensation is not a content of the defini-

tion but has been added to it by judicial interpretation.

The exercise of the power to acquire compulsorily is condi-

tional on the existence of a public purpose and that being

so this condition is not an express provision of article 31

(2) but exists aliunde in the content of the power itself

and that in fact is the assumption upon which this clause of

the article proceeds.

The result of this discussion is that the scope of

article 31(4) is limited to the express provisions of arti-

cle 31 (2) and courts cannot examine either the extent or

the adequacy of the provisions of compensation contained in

any law dealing with the

936

acquisition of property compulsorily for public purpose but

the barring provisions of article 31 (4) do not in any way

touch the powers of the court to see whether the acquisition

has been made for public purpose. The provisions of this

clause also do not take away the court's power to examine

whether the legislature that made the law has acted in

exercise of its law making power within the lists or has

merely made some other law though it has ostensibly exer-

cised its powers under a certain legislative head which

cannot be used to support the legislation.

As regards the new articles 31-A and 31-B, they merely

place beyond the reach of the court any enactment dealing

with compulsory acquisition of property which may infringe

any of the provisions of Part III of the Constitution; in

other words, article 13 (2) of the Constitution cannot be

called in aid to impugn the validity of such statutes.

Having determined the scope of article 31 (4), it is now

convenient to examine the extent of the protection given

by article: 31 (4) to the impugned statute.

Mr. Das is to a great extent right in his contention

--the point was not seriously challenged by the learned

Attorney-General.--that the law under challenge in the

matter of compensation is highly unjust or inequitable to

certain persons and in certain matters, and compensation in

some cases is purely illusory. Be that as it may, the

Constitution in express terms prohibits an enquiry in a

court of law into those matters. The same Constitutent

Assembly that provided the guarantees in article 31 (2) in

respect of payment of compensation and provided the remedy

in article 32 for enforcing the guaranteed right. took away

that remedy in the case of the Bihar and other zamindari

estates and substituted for it the procedure of article 31

(3) and (4), compliance with which would be sufficient to

make the laws valid and effective. However repugnant the

impugned law may be to our sense of justice, it is not

possible

937

for us to examine its contents on the question of quantum of

compensation. It is for the appropriate legislature to see

if it can revise some of its unjust provisions which are

repugnant to all notions of justice and are of an illusory

nature. The courts' hands are tied by the provisions of

article 31(4) and that which has been declared by the Con-

stitution in clear terms not to be justiciable, cannot be

made justiciable in an indirect manner by holding that the

same subjectmatter which is expressly barred is contained

implicitly in some other entry and therefore open to exa-

mination. None of these provisions, however, fetter the

power of the court to inquire into any other matters the

cognizance of which is not expressly taken away by the

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provisions of clause (4) and articles 31-A and 31-B.

Therefore, the material point for determination is whether

the acquisition of the estates is for any-public purpose and

if it be not so, the law can certainly be held to be uncon-

stitutional. Mr. Das contended, and in my opinion rightly,

that jurisdiction to acquire private property by legislation

can only be exercised for a public purpose. It may be the

purpose of the Union, or the purpose of the State or any

other public purpose. Private property cannot be acquired

for a private purpose. 'the right to legislate under entry

36 postulates the existence of a public purpose and the

contention is that there was no public purpose behind the

Act. The learned Judges of the High Court negatived this

contention on the ground that the question whether there was

a public purpose in support of the acquisition of the es-

tates had been by implication decided by the Constituent

Assembly and therefore the Court could not go into this

matter. Shearer J. said as follows ;--

"We are in my opinion, estopped from saying that the acqui-

sition of estates and tenures is not an acquisition for such

a purpose. That it is, has been decided by the Constituent

Assembly itself."

121

938

This decision was reached in view of the provisions of

clauses (4) and (6) of article 31 which were interpreted to

mean that the Constituent Assembly gave their express ap-

proval to this legislation. Reuben J. observed as follows

:--

"From article 31, clause (2), it is clear that the

Constituent Assembly considered two requirements as essen-

tial for compulsory acquisition, namely a public purpose and

provision for compensation. The protection which the

Constituent Assembly gave under clauses (4)and (6) was

confined to the latter requirement. Evidently, therefore,

the Constituent Assembly thought that protection was not

required under the other head, that is to say, the Constitu-

ent Assembly regarded the nationalization of land as itself

constituting a public purpose.

I would, therefore, hold that there is a public purpose

for the impugned Act within the meaning of clause (2) of

article 31."

Das J. said as follows :--

"There is, I think, clear indication in the Constitution

of India itself that the expression 'public purpose' is to

be understood in a wide and comprehensive sense. Further-

more, there is indication that the Constituent Assembly,

representing the people of India which made the Constitu-

tion, was itself aware of the existence of legislation of

the nature of impugned Act. This is clear from clause (4) of

article 31. As a matter of fact, the Land Reforms Bill was

pending at the commencement of the 'Constitution .........

If the legislation then pending was not for a public pur-

pose, it was, indeed, surprising that the Constituent Assem-

bly tried to save such legislation by means of the provi-

sions of clause (4) of article 31. One may, I think, say

that there was an implied declaration by the Constituent

Assembly that such legislation was for a public purpose and

such declaration will be given deference by the courts until

it is shown to involve an impossibility.

939

For the reasons given above, I hold that the impugned

Act does not fail for want of a public purpose "

Learned counsel challenged this view of the High Court

and contended that article 31(4) of the Constitution is no

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answer on this point and that the Act was bad as it was

silent on the question as to why the zamindaris were being

acquired; that it only provided for the interception of

rents which instead of being realized by the zamindars would

go into the coffers of the Government without any benefit

being derived by the tenants; that private property could

not be acquired for merely augmenting the revenues of the

State; and that the only purpose that could be gathered from

this Act was the ruination of a large class of persons

without any corresponding benefit to any section of the

community. It is said that there are 13,35,000 land-owners

and tenure-holders in Bihar and if an average family be

taken to consist of four persons, five and a half million

people will be ruined by this legislation, while the ryots

will not benefit in any manner because all the lands except-

ing the waste lands sought to be transferred are in the

possession and cultivation of the ryots and no part of the

rent realisable from them is being commuted for their bene-

fit. It is pointed out that the waste lands were sufficient

to meet the requirements of villagers for grazing cattle and

for pasture and that in effect the acquisition of the es-

tates was for the purpose of creating one machine-ridden and

red-tapist super-landlord by depriving a substantial portion

of the public of their means of livelihood.

The learned counsel proceeded to say that nationaliza-

tion of land may be the policy of the party in power but

this is not a public purpose which involves benefit to the

community. Reference in this connection was made to the

decision in Harnabai Pramjee Petit v. Secretary of State for

India(1), where it was observed that the phrase "public

purpose" whatever it may

(1)(1915) 42 I.A. 44.

940

mean, must include a purpose, that is, an object or aim, in

which the general interest of the community as opposed to

the particular interest of individuals is directly and

vitally concerned. The impugned Act, it was contended, did

not fall within this definition of "public purpose". Refer-

ence was also made to Vol. II of Cooley's Constitutional

Limitations, at page 744, wherein it is said as follows:--

"The purpose must be public, and must have reference to

the needs or convenience of the public, and no reason of

general public policy will be sufficient to validate other

transfers when they concern existing vested rights."

Finally, it was urged that there was nothing definite or

tangible in the Act or in the views of the legislatures

which gave any indication of the public purpose for which

the estates were being acquired and all that could be gath-

ered was that the legislature did not know its own mind at

all and on a vague notion of some future policy directed the

acquisition of the estates.

In my opinion, it will not serve any useful purpose to

examine each and every argument that was addressed to us by

the learned counsel. There can be no manner of doubt that

acquisition of private property by legislation under entries

33, 36 and 42 can only be made either for purposes of the

Union or for purposes of the State or for a public purpose

and that it is unnecessary to state in express terms in the

statute itself the precise purpose for which property is

being taken, provided from the whole tenor and intendment of

the Act it could be gathered that the property was being

acquired either for purposes of the State or for purposes of

the public and that the intention was to benefit the commu-

nity at large. It may be conceded that the present statute

does not disclose the legislature's mind as to what it would

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ultimately do after the estates are vested in the State

Government. Perhaps the State Government has not yet made up

its mind how and for what purposes the lands and the tenures

acquired will be utilized. The statute

941

provides in section 34 for the establishment of a land

commission whose function it will be to advise the Govern-

ment as to its agrarian policy. Be that as it may, it seems

to me that in spite of the criticism levelled against the

Act by the learned counsel, it cannot be said that the Act

would fall because it fails to postulate a public purpose.

The Act is intituled "The Bihar Land Reforms Act, 1950". The

preamble of the Constitution says that India has been con-

stituted into a Sovereign Democratic Republic to secure to

all its citizens justice, social, economic and political.

Article 39 of the Directive Principles of State Policy

states as follows :-

"The State shall, in particular, direct its policy

towards securing that the ownership and control of the

material resources of the community are so distributed as

best to subserve the common good; and that the operation of

the economic system does not result in the concentration of

wealth and means of production to the common detriment."

Now it is obvious that concentration of big blocks of

land in the hands of a few individuals is contrary to the

principle on which the Constitution of India is based. The

purpose of the acquisition contemplated by the impugned Act

therefore is to do away with the concentration of big blocks

of land and means of production in the hands of a few indi-

viduals and to so distribute the ownership and control of

the material resources which come in the hands of the State

as to subserve the common good as best as possible. In

other words, shortly put, the purpose behind the Act is to

bring about a reform in the land distribution system of

Bihar for the general benefit of the community as advised.

The legislature is the best judge of what is good for the

community, by whose suffrage it comes into existence and it

is not possible for this Court to say that there was no

public purpose behind the acquisition contemplated by the

impugned statute. The purpose of the statute certainly is in

accordance with the letter and spirit of the Constitution of

India. It is fallacious to contend that the object of the

Act is

942

to ruin five and a half million people in Bihar. All lands

in khas possession of all these persons have not been made

the subject-matter of acquisition. Their homesteads, their

mineral wealth except mines not in operation have not been

seriously touched by the provisions of the Act. Various

other exemptions have also been made in their favour in the

Act, apart from the provisions as to compensation which in

the case of small zamindaris can by no means be said to be

of an illusory character. It is difficult to hold in the

present day conditions of the world that measures adopted

for the welfare of the community and sought to be achieved

by process of legislation so far as the carrying out of the

policy of nationalization of land is concerned can fall on

the ground of want of public purpose. The phrase "public

purpose" has to be construed according to the spirit of the

times in which particular legislation is enacted and so

construed, the acquisition of the estates has to be held to

have been made for a public purpose

These observations, however, have no application to the

acquisition of arrears of rent. On the face of the stat-

ute, acquisition of fifty per cent. of these arrears was

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for the private purpose of the zemindars and the other fifty

per cent. was either for supplementing the revenues of the

State or for securing means for payment of compensation to

the zemindars. The purpose is to discharge the obligation

of the acquirer to pay the price. The same observations

apply to clause 23 (f) of the statute. That provision has

been made for the purpose of negativing partially the provi-

sions of the Act regarding payment of compensation. Clause

(4)of article 31 affords no protection against the invalidi-

ty of these clauses.

The learned Attorney-General contended that the acqui-

sition of arrears was an acquisition of choses in action and

that the compensation paid for it was fifty per cent. of the

amount of arrears. I regret I am unable to accept this

suggestion. It is a well accepted

943

proposition of law that property of individuals cannot be

appropriated by the State -under the power of compulsory

acquisition for the mere purpose of adding to the revenues

of the State. "The principle of compulsory acquisition of

property," says Cooley (in Vol. II at p. 113, Constitutional

Limitations) "is founded on the superior claims of the whole

community over an individual citizen but is applicable only

in those cases where private property is wanted for public

use, or demanded by the public welfare and that no instance

is known in which it has been taken for the mere purpose of

raising a revenue by sale or otherwise and the exercise of

such a power is utterly destructive of individual right.

Taking money under the right of eminent domain, when 'it

must be compensated in money afterwards is nothing more or

less than a forced loan. Money or that which in ordinary use

passes as such and which the Government may reach by taxa-

tion, and also rights in action which can only be available

when made to produce money, cannot be taken under this

power.

Willis in his Constitutional Law, at page 816, offers

the same opinion. Nichols on "Eminent Domain" (Vol. 1, at

page 97) has expressed a contrary opinion and reference has

been made to the decision in Cincinnati v. Louisville etc.,

R. Co. C). An examination of this case, however, does not

disclose that any such proposition was stated therein. It

was held in that case that a Bill to restrain the enforce-

ment of a State statute regulating fire insurance rights was

a valid law in the State of Kansas. It was not necessary to

decide in this case whether under the compulsory acquisition

power the State has the power to acquire choses in action or

money, but it cannot be seriously disputed that such an

acquisition amounts to a forced loan and that the desired

result can be more appositely obtained in exercise of the

police power of the State than of the power of eminent

domain or compulsory acquisition of property and that com-

pensation in such a ease is the same amount of money

(1)223 U.S. 390.

944

that is being taken and in the case of a chose in action the

amount of money that it would produce. In this situation it

cannot be held that fifty per cent. of the outstanding

arrears was compensation in any sense of that expression for

this acquisition. The true position is that the State took

over all the arrears and decided to refund fifty per cent.

of them and forfeit the rest. The validity of this acquisi-

tion has to be decided independently of the acquisition of

the estates. It has no connection with land reform or with

any public purpose. It stands on the same footing as other

debts due to zamindars or their other movable properties,

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which it was not the object of the Act to acquire. As al-

ready stated, the only purpose to support this acquisition

is to raise revenue to pay compensation to some of the

zamindars whose estates are being taken. This purpose does

not fall within any definition, however wide, of the phrase

"public purpose" and the law therefore to this extent is

unconstitutional.

One or two illustrations of the public purpose involved

in this provision will bring out its true character. In

Appeal No. 299 of 1951, the arrears of Darbhanga Raj on

26th September, 1950, was a sum of Rs. 30,81,967. Half of

this amount is payable to the Raj and the other half stands

forfeited. In the case or Raja P.C. LaI (Appeal No. 330 of

1951), the rents due were Rs. 10,26,103, and in Appeal No.

339 of 1951, the amount is Rs. 9,52,937.

Next it was contended that the impugned Act is a fraud

on the Constitution and therefore void. It was said that

the Act, while pretending to comply with the Constitution,

evades and invades it; that the Act merely pretends to

comply with the Constitution when it says that it provides

for payment of compensation but in effect it has produced a

scheme for non-payment of compensation by shift and contri-

vance. Reference was made to certain provisions of the Act

of a confiscatory nature, already noticed in this judgment.

Section 9 was mentioned under which mines in the course of

development and fetching no income yet

945

vest in the State without payment Of compensation. No com-

pensation has been made payable in respect of forests or

trees which were not fetching any income at the date of

vesting. In a nutshell, it was contended that the object of

the Act was to acquire properties of the zemindars by pay-

ment of compensation (so-called) out of the moneys belonging

to the zemindars themselves and that in some cases they had

not only to give up their estates for nothing but would have

to pay something, in addition, to the State, if the princi-

ples specified in the Act were to apply. It was pointed out

in the case of the Maharaja of Darbhanga that his zemindari

would be acquired by the State Government without paying

anything but that the Maharaja would have to pay out of his

own money six lakhs to the Government. In Case No. 330 of

1951 (Raja P.C. Lall), it was said that Government would get

the zemindari free, while in Case iNTo. 339 of 1951 the

State will get the zemindari and two and half lakhs out of

the arrears, while in Case No. 331 of 1951, (Chota Nagpur

appeal) the zemindari will be acquired on payment of a small

sum of Rs. 14,000 only. Nothing will be payable to the

zamindars out of the public exchequer. Attention was drawn

to the observations of Shearer J. in the following passage

:-

"The legislature, it is clear, are optimistic enough to

hope that this reform may conceivably be effected without

raising any great loan. The conclusion, to my mind, is

irresistible that the intention is to take over the great

estates in the province, paying no compensation or the most

inadequate compensation, and out of the considerable profits

which are likely to be derived from them, to take over, in

course of time, the remaining estates and tenures. In other

words, a comparatively small minority belonging to this

particular class are to be expropriated without compensation

or with the most inadequate compensation in order that, when

the great majority are expropriated, they receive compensa-

tion which will not be inadequate and may, quite possibly,

in many cases, be more then adequate"

122

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946

Mr. Das vehemently contended that the statute was a

fraud on republican Constitution which promised to deprive

no one of his property without payment of compensation;that

it pretended to make elaborate provisions for paying it but

that by shift and contrivance it has provided for the eva-

sion of its payment. Reference was made to a passage in

Moran Proprietary Ltd. v. Dy. Commissioner of Taxation for

New South Wales (1), which is in these terms :-

"Cases may be imagined in which a purported exercise of

the power to grant financial assistance under section 96

would be merely colourable. Under the guise or pretence of

assisting a State with money, the real substance and purpose

of the Act might simply be to effect discrimination in

regard to taxation. Such an Act might well be ultra vires

the Commonwealth Parliament. Their Lordships are using

the language of caution because such a case may never arise,

and also because it is their usual practice in a case deal-

ing with constitutional matters to decide no more than their

duty requires. They will add only that, in the view they

take of the matter, some of the legislative

expedients--objected to as ultra vires by Evatt J. in his

forcible dissenting judgment may well be colourable, and

such acts are not receiving the approval of their

Lordships."

It was urged that a statute could be declared to be a

fraud on the Constitution on the same principles ,that are

applicable to cases of corporations or of executive bodies,

whenever they act in excess or in abuse of their statutory

powers. Reliance was placed in this connection on the

observations of Abbott C.J. in Fox v. Bishop of Chester (2),

which are in these terms :--

"Our judgment is founded upon the language of the Stat-

ute 31 Eliz. c. 6, and the well-known principle of law, that

the provisions of an Act of Parliament shall not be evaded

by shift or contrivance,"

(1) [1940] A.C. 838, at p. 858.

(2)107 E.R. 520 at p. 527.

947

In Fox v. Bishop of Chester(1), it was said that there

may be fraud on the law, an insult roan Act of Parliament,

though in the language and text of the law no such fraud may

have been mentioned. In Westminsyter Corporation v. London &

North Western Railway(2), it was observed: -

"It is well settled that a public body invested with

statutory powers such as those conferred upon the corpora-

tion must take care not to exceed or abuse its powers. It

must keep within the limits of the authority committed to

it. It must act in good faith. And it must act reasonably.

The last proposition is involved in the second, if not in

the first."

In Maharaja Luchmeswar Singh v. Chairman of the Darbhan-

ga Municipality (3), it was pointed out that the offer and

acceptance of one rupee was a colourable attempt to obtain a

title under the Land Acquisition Act without paying for the

land. In Alexander v. Brame(4), it was observed that if it

had appeared that sufficient ground existed for holding that

the deed in question was a device on the part of Mr. Brame

for the purpose of evading and eluding the statute, by

keeping seemingly and colourably clear of 1t, while meaning

substantially to infringe it, a view might have been taken

favourable to the appellants.

All these principles are well-settled. But the question

is whether they have any application to the present case.

It is by no means easy to impute a dishonest motive to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 78

legislature of a State and hold that it acted main fide and

maliciously in passing the Bihar Land Reforms Act or that it

perpetrated a fraud on the Constitution by enacting this

law. It may be that some of the provisions of the Act may

operate harshly on certain persons or a few of the zamindars

and may be bad if they are in excess of the legislative

power of the Bihar Legislature but from that circumstance

it-does not follow that the-whole enactment is a fraud on

the Constitution. From the premises that the estates of

half a dozen zemindars may be expropriated

(1)6 E.R. 581 (3) 17 I.A. 90.

(2) [1905] A.C. 426 at p. 430. (4) 44 E.R. 205.

948

without payment of compensation, one cannot jump to the

conclusion that the whole of the enactment is a fraud on the

Constitution or that all the provisions aS to payment of

compensation are illusory. At best they are illusory only

in the case of some only of the large body of persons af-

fected by it.

Section 23 (f), however, in my opinion, is a colourable

piece of legislation. It has been enacted under power con-

ferred by legislative entry 42 of List III.It is well-set-

tled that Parliament with limited powers cannot do indirect-

ly what it cannot do directly. (Vide South Australia v. The

Commonwealth(1) and Madden v. Nelson & Port Sheppard R.W.

Co.(2). In Deputy Federal Commissioner of Taxation (N.

S.W.) v.W.R. Moran Proprietary Ltd. (3), it, was observed

as follows :--

"Where the law-making authority is of a limited or quali-

fied character, obviously it may be necessary to examine

with some strictness the substance of the legislation lot

the purpose of determining what it is that the legislature

is really doing. In such cases the court is not to be over

persuaded by the appearance of the challenged

legislation ...... In that case, this court applied the

well known principle that in relation to constitutional

prohibitions binding a legislature,that legislature cannot

disobey the prohibition merely by employing an indirect

method of achieving exactly the same result ......... The

same issue may be whether legislation which at first sight

appears to conform to constitutional requirements is colour-

able or disguised. In such cases the court may have to look

behind names, forms and appearances to determine whether or

not the legislation is colourable or disguised."

The provision herein impeached has not been arrived at

by laying down any principles of paying compensation but in

truth, is designed to deprive a number of people of their

property without payment of compensation. The State legis-

lature is authorised to pass an Act in the interests of

persons deprived of

(1) 65 C.L.R. 373. (3) 61 C.L.R. 735 at p. 793.

(2) [1899] A.C. 626.

949

property under entry 42. They could not be permitted under

that power to pass a law that operates to the detriment of

those persons and the object of which provision is to de-

prive them of the right of compensation to a certain extent.

In this connection it is now convenient to examine the

contention of the learned Attorney-General as to the inter-

pretation of legislative head entry 42 of List III. He

contended that under this head it was open to the Parliament

or the State Legislature to make a law laying down the

principles which may result in non-payment of compensation

or which may result in not paying any compensation whatsoev-

er. I cannot possibly assent to any such construction of

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this entry The entry reads thus :--

"Principles on which compensation for property acquired

or requisitioned for purposes of the Union or of a State or

for any other public purpose is to be determined, and the

form and manner in which-such compensation is to be given."

This head of legislation seems to have been expressly

mentioned in the Concurrent List not only in view of the

accepted principle of law that in cases of compulsory acqui-

sition of property compensation has to be made, but also in

view of the clear and mandatory provisions of article 31(2)

which require that a law authorising the taking or acquisi-

tion of property will be void if it does not provide for

payment of compensation for the property acquired or does

not either fix the amount of compensation or specify the

principles on which and the manner in which the compensation

is to be determined and given. The power of legislation in

entry 42 is for enacting the principles of determining such

compensation and for paying it. The principles to be enact-

ed are for determining such compensation and for paying it.

The principles to be enacted are for determining the equiva-

lent price of the property taken away. It may be that the

determination of the equivalent may be 'left for ascertain-

ment on the basis of certain uniform rules;

950

for instance, it may be laid down that the principles lot

determining compensation will be the rental basis or the

market value of the property etc. But it is difficult to

imagine that there can be any principles for nonpayment of

compensation or for negativing the payment of compensation.

No principles are required to be stated for non-payment of

compensation. A simple statement that no compensation will

be paid is quite enough to attain the object. I know of no

principles for determination of compensation which result in

its nonpayment except in the Act under notice. All legisla-

tive heads have to be reasonably construed and the power

given under entry 42 is a positive power given to bring

about the result of payment of compensation and not non-

payment of the same. The key words in the entry are "compen-

sation" and "given". Anything that is unrelated to compen-

sation or the giving of it cannot be justified by legisla-

tion under entry 42. Reference was made in this connection

to the United Provinces v. Atiqa Begum (1) in which it was

held that the descriptive words under the legislative,head '

'collection of rents" are wide enough to permit legislation

in respect of remission of rents and that under item 22. of

the Government of India Act, 1935, the legislative head

"forests" include the power to legislate with respect not

only to afforestation but also to disafforestation and that

the legislative head "fisheries" would include the power to

legislate on the prohibition of fishing altogether. In my

opinion, these analogies have no application to the con-

struction of the language employed in entry 42. These en-

tries are not in pari materia to entry 42. Perhaps a more

analogous case on the point is the decision in AttorneyGen-

eral for Ontario v. Attorney-General for the Dominion (2)

The question there was whether the legislative head "Regula-

tion of Trade and Commerce" included the power to abolish it

also. Their Lordships of the Privy Council made the

following observations which appear at page 363 of the

report :--

(1) [1940] F.C.R. 110 at p. 135. (2) [1896] A.C. 348.

951

"A power to regulate assumes the conservation of the

thing which is to be made the subject of regulation. In

that view, their Lordships are unable to regard the prohibi-

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tive enactments of the Canadian statute as regulations of

trade and commerce .... there is marked distinction be-

tween the prohibition or prevention of a trade and the

regulation or governance of it."

An entry concerning payment of compensation in no sense

includes legislative power of non-payment of compensation.

The whole purpose of this head of legislation is to provide

payment of compensation and not the confiscation of proper-

ty.

The provision that four per cent. to twelve and a half

per cent. has to be deducted out of the net income on ac-

count of costs of works for the benefit of raiyats etc. has

no relation to real facts. Even the earlier provision in

clause (d) that costs of management have to be deducted up

to twenty per cent. has in its entirety no real relation to

actual state of affairs. As already pointed out, it is

partially of a confiscatory character in sufficient number

of cases. The deduction under clause (f) from the gross

income is merely a deduction of an artificial character, the

whole object being to inflate the deductions and thus bring

about non-payment of compensation. Such legislation, in

my opinion, is not permitted by entry 42 of List III. Sup-

pose, for instance, instead of a twelve and a half per cent.

it declared that a deduction of seventy per cent. be made on

that account. Could it be said by any reasonable person

that such a piece of legislation was legislation on princi-

ples of determining compensation or of making payment of

compensation, This provision, therefore, in my opinion has

been inserted in the Act as a colourable exercise of legis-

lative power under entry 42 and is unconstitutional on that

ground. The power has not been exercised under any other

legislative head authorizing the State legislature to pass

such a law. Legislation ostensibly under one or other of

the powers conferred by the Constitution but in truth and

fact not falling within the content of that

952

power is merely colourably constitutional but is really not

so. (Vide Quebec v. Queen Insurance Co. (D; Russell v. The

Queen(2).] Reference in this connection may also be made to

the decision of the Privy Council in Madden v. Nelson & Fort

Sheppard R.W. Co. (3). This clause therefore is unconstitu-

tional legislation made colourably valid under exercise of

legislative power under entry 42 of List II.

It was contended by Mr. Das that if some provisions in

the Act are ultra vires, the statute as a whole must be

pronounced to be ultra vires and that it could not be pre-

sumed that the legislature intended to pass it in what may

prove to be a truncated form. The real question to decide

in all such cases is whether what remains is so inextricably

bound up with the part declared invalid that what remains

cannot independently survive, or, as it has sometimes been

put, whether on a fair review of the whole matter it can be

assumed that the legislature would have enacted at all that

which survives without enacting the part that is ultra

vires. Looking at the Act as a whole, it seems to me that

the offending provisions of the Act are not so inextricably

bound up with the part that is valid as to hit or kill the

remainder also. In this case a presumption cannot be drawn

that the legislature would not have enacted the Act leaving

out the two or three provisions which have to be declared to

be invalid.

Mr. Das also raised a minor point that the Bihar. Act

was unenforceable. Reference was made to section 32(2) of

the Act which runs as follows :--

"The amount of compensation so payable in terms of a

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compensation Assessment-roll as finally published shall be

paid in cash or in bonds or partly in cash and partly in

bonds. The bonds shall be either negotiable or non-negotia-

ble and non-transferable and be payable in forty equal in-

stalments to the person named therein and shall carry inter-

est at two and a half per centum per annum with effect from

the date of issue,"

(1) (1878) 3 App. Cas. 1090. (3) [1899] A.C. 626,

(1) 7 (1882) App. Can. 841.

953

It was contended that as no date has been mentioned for

payment of compensation and no interval has been stated

between the instalments mentioned therein and it has not

been mentioned how much would be payable in cash and how

much in bonds, the Act could not be enforced. Section 43 of

the Act empowers the State Government to make rules for

carrying out the purposes of the Act. Clause (p) is in

these terms :--

"The proportion in which compensation shall be payable

in cash and in bonds and the manner of payment of such

compensation under sub-sections (2) and (3) of section 32."

It seems clear that the Act has made sufficient provi-

sion for enforcing its provisions if section 32(2) is read

with the provisions contained in section 43 and it cannot be

said that the Act is unenforceable for this reason.

The last point urged by M. Das was that section 32 (2) of

the Act was void as in it legislative functions had been

abdicated by the legislature in favour of the executive. A

two-fold attack was levelled against this provision. First-

ly, it was said that the Constitution having in entry 42 of

List III of the Seventh Schedule vested authority in the

legislature to make laws on the question of the principles

as to the payment of compensation and the manner and form of

its payment, in other words, it having trusted these matters

to the care, judgment and wisdom of the legislature, it had

no power to delegate these matters to the executive. Second-

ly, it was contended that section 32 (2) delegated essential

legislative power to the executive which it was incompetent

to do. Reference was made to the opinion of this Court in

Special Reference No. 1 of 1950.

The matters alleged to have been delegated are these :--

1. The determination of the proportion of the cash

payment to the payment by giving bonds, negotiable or non-

negotiable.

123

954

2. The determination of the period of redemption of

these bonds.

3. The period of interval between the several instal-

ments.

The section enacts that the compensation payable shall

be paid in cash or in bonds or partly in cash and partly in

bonds. It therefore determines the principle that the pay-

ment of compensation will be in these two forms. It further

enacts that bonds shall be either negotiable or non-negotia-

ble and non-transferable. It therefore also determines the

nature of the bonds that would be issued. It further enacts

that the payment, if made in bonds, will be paid in forty

equal instalments. It is obvious that the time of redemp-

tion of the bonds will be co-terminous with the period of

the instalments. It has further enacted that the bonds will

carry interest at the rate of two and a half per cent. What

has been left to the executive is the question of the deter-

mination of the proportion in which compensation is to be

paid in cash or in bonds and the fixation of the interval of

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the instalments. It seems to me that the delegation to this

extent is permissible in view of the decision of this Court

in The State of Bombay v. Narottamdas Jethabai (1) and the

decision of their Lordships of the Privy Council in Queen v.

Burah (2). The legislature applied its mind to the question

of the method and manner of payment of compensation. It

settled its policy and the broad principles. It gave the

State Government the power to determine matters of detail

after having settled vital matters of policy. It cannot be

said that the legislature did not apply its mind to the

subjectmatter of the legislation and did not lay down a

policy. The proportion in which compensation was payable in

cash or in bonds or whether the whole of it was to be paid

in cash is a matter which only the State Government could

fix and similarly, the interval of instalments and the

period of redeemability of the bonds were also matters of

detail which the executive could

(1) [1951] S.C.R. 51. (2) (1877) 5 I.A. 178,

955

more appositely determine in exercise of its rule-making

power. It cannot be said in this case that any essential

legislative power has been delegated to the executive or

that the legislature did not discharge the trust which the

Constitution had reposed in it. If the rule-making authori-

ty abuses its power or makes any attempt to make the payment

illusory, the expropriated proprietor will not be without a

remedy.

For the reasons given above, I am of the opinion that

section 32(2) of the Act cannot be held bad on the ground

that it is a piece of unregulated delegation of legislative

power.

Mr. Das's contention in Cases Nos. 319, 327, 330 and 332

of 1951 and in the other cases in which he appeared were the

same.

Mr. Choudhury appearing in Cases Nos. 309 and 328 of

1951 raised a large number of points, some of which are

covered by the arguments of Mr. P.R. Das, which I have

discussed already. The rest seem to me to be unsubstantial

but it is necessary to notice a few of them upon which great

stress was laid by the learned counsel. Mr. Choudhury

contended that the field of legislation on the question of

principles of determination of compensation and the mode and

manner of payment of such compensation was already occupied

by the Land Acquisition Act which was an existing law of

Parliament and, therefore, the State Legislature could not

enter on this field and legislate on the principles of

payment of compensation. This argument really has no force,

because the provisions as to assessment of compensation

enacted in the Land Acquisition Act only apply to acquisi-

tions that are made by notification under that Act. Its

provisions have no application to acquisitions made under

either local or central laws unless they are specifically

made applicable by the provisions of these statutes.

Another point put forward by him, that articles 31-A and

31-B of the Constitution cannot affect pending cases

cannot be seriously entertained because retrospectivity is

writ large on the face of those

956

articles. Similarly, I cannot but regard as unsubstantial

his contention that transference of estates of zamindars

to the State under the provisions of a statute requires

registration. The only other point seriously pressed by him

is that the Bihar Legislature had no power to issue bonds

without complying with the procedure laid down in article

293 of the Constitution. It is enough to state with regard

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to this point that the stage for issuing bonds has not

arrived as yet. When the State legislature issues bonds

which are unenforceable or which it is not competent to

issue, the contention can possibly be raised.

Mr. Chakravarty who appeared in three cases, Nos. 326,

337, and 344 of 1951, urged that as regards trust proper-

ties, the Bihar legislature had no power to acquire them

without payment of full compensation as certain educational

and charitable institutions would thereby be seriously

affected. He was, however, unable to point out how the Bihar

Legislature had no power to acquire trust properties.

Mr. Raghav Saran who appeared in Cases Nos. 310, 311 and

329of 1951, raised a novel point that the Act not being

reasonable and just, the Supreme Court had jurisdiction to

declare it void on that ground. He was unable to support

his argument on any reasonable basis. The constitutionality

of a statute passed by a competent legislature cannot be

challenged on the ground that the law made is not reasonable

or just.

Counsel who appeared in Cases Nos. 807, 313, 815, 320,

321, 822 and-331 and Petition No, 612 of 1951 merely adopted

the points urged by Mr. P.R. Das.

The result is that the provisions of the Bihar Land

Reforms Act contained in sections 4 (b) and 23 (f) are held

not constitutional. The rest of the Act is good. The ap-

peals are therefore allowed except to the extent indicated

above. A writ of mandamus will issue to the State Government

not to give effect to the two provisions mentioned above and

held unconstitutional.

957

Petition No. 612 of 1951 under article 32 is dismissed as it

is not maintainable; no infringement of any fundamental

right has been alleged therein. There was no appearance for

the respondents in Cases Nos. 18 of 1950 and 299 of 1951 and

no opposition to the appeals being allowed. They are accord-

ingly allowed. I will make no order as to costs in any of

these appeals and petition.

MUKHERJEA J.--I had the advantage of going carefully

through the judgment of my learned brother Mahajan J. and I

concur entirely in the conclusions arrived at by him. In my

opinion, the Bihar Land Reforms Act of 1950 is not unconsti-

tutional, with the exception of the provisions contained in

section 4 (b) and 23(f) of the Act and these provisions

alone must be held to be void and inoperative.

As regards section 23(f) of the Bihar Land Reforms Act,

my learned brother has based his decision on the ground that

the provision of this clause constitutes a fraud on the

Constitution, and although in enacting the provision, the

legislature purported to exercise its powers under entry

42 of the Legislative List III in Schedule VII of the Con-

stitution,. in reality it is a clourable exercise of that

power under which a thing has been done which is not

contemplated by that entry at all and lies outside its

ambit. I agree with the line of reasoning adopted by my

learned brother in this connection and there is nothing

further which I can usefully add.

As regards section 4 (b)it has been held by my learned

brother that the provision of this clause is unconstitution-

al as it does not disclose any public purpose at all. The

requirement of public purpose is implicit in compulsory

acquisition of property by the State or, what is called, the

exercise of its power of eminent domain. This condition is

implied in the provision of article 31 (2) of the Constitu-

tion and although the enactment in the present case fulfills

the requirements of clause (3) of article 31 and as

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958

such attracts the operation of clause (4) of that article,

my learned brother has taken the view that the bar created

by clause (4) is confined to the question of compensation

only and does not extend to the existence or necessity of a

public purpose which, though implicit in, has not been

expressly provided for by clause (2)of the article. For my

part I would be prepared to assume that clause (4)of article

31 relates to everything that is provided for in clause (2)

either in express terms or even impliedly and consequently

the question of the existence of a public purpose does not

come within the purview of our enquiry in the present case.

Even then I would hold that the same reasons, which have

weighed with my learned brother in declaring section 23 (f)

of the impugned Act to be unconstitutional, apply with

equal, if not greater, force to section 4 (b) of the Act and

I have no hesitation in agreeing with him as regards his

decision on the constitutionality of this provision of the

Act though I would prefer to adopt a different line of

reasoning in support of the same.

Section 4 (b) of the Bihar Land Reforms Act lays down,

as one of the results of the publication of a notification

under section 3 (1)of the Act that "all arrears of

rents .......... and all cesses together with interest, if

any, due thereon for any period prior to the date of vesting

which were recoverable in respect of the estate or tenure by

the proprietor or tenureholder and the recovery of which was

not barred by any law of limitation shall vest in and be

recoverable by the State". The explanation attached to the

clause further provides that for purposes of the clause the

expression "arrears of rent" shall include arrears in re-

spect of which suits were pending on the, date of vest-

ing or in respect of which decrees were obtained before

that date together with costs allowed by such decrees.

Under section 24 of the Act, 50% of these arrears of rent

are directed to be added to the amount of compensation money

payable lot the estate or interest calculated in accordance

with the provisions of the Act.

959

The arrears of rent whether merged in decrees or not,

which were due to the landlord for a period anterior to the

date of notification under section 3(1) of the Act, were

undoubtedly the property of the landlord, irrespective of

his interest in the estate or tenure which is the subject-

matter of acquisition. Such arrears could not vest in the

State as a normal result of acquisition of any estate or

interest therein, and it is conceded by the learned

Attorney-General that article 31-A of the Constitution has

no application so far as these arrears of rent are con-

cerned. The arrears of rent, therefore, are the subject-

matter of separate and indipendent acquisition under the

Bihar Land Reforms Act, if the word "acquisition" can at all

be appropriate to cases of this description.

It cannot be disputed that in every Government there is

inherent authority to appropriate the property of the

citizens for the necessities of the State and constitutional

provisions do not confer this power though they generally

surround it with safeguards. The restraints invariably are

that when private property is taken, a pecuniary compensa-

tion must be paid(1). Thus eminent domain is an attribute

of sovereign power supposed to be tempered by a principle of

natural law which connects its exercise with a duty of

compensation

Possibly under the impression that the sacredness of

private property should not be confided to the uncertain

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virtues of the party in power for the time being, the Con-

stitution-makers of our country have declared it as one of

the fundamental rights that no property shall be taken

possession of or acquired for public purpose unless the law

directing its appropriation makes provision for compensation

in the manner laid down in article 31 (2). Clause (4) of

article 31 does not do away with the obligation to pay

compensation; it merely lays down that laws which are re-

ferred to in clause (3) of the article would be immune from

judicial scrutiny on the ground of inadequacy of the

(1)Vide Cooley on Constitutional Limitations, Vol. II, p,

1110

(2)Vide Encyclopaedia of Social Science, Vol. V, p. 493.

960

amount of compensation or the impropriety of the principle

for assessing the same as provided for in the enactment. The

clause presupposes however that the enactment is the result

of a valid exercise of a legislative power conferred on the

legislature by the appropriate entries in the Legislative

Lists and if the legislature acts outside these entries or,

under the pretence of acting within them, does something

which is in flat contradiction with its contents, clause (4)

of article 31 could not be invoked to afford any protection

to such legislation.

Clause (4) (b) of the impugned Act read with the provi-

sion of section 24 of the same, empowers the State Govern-

ment to appropriate all the arrears of rent due to a land-

lord at a particular time and the only obligation it casts

on the Government in this respect is to allow 50% of the

amount thus appropriated as solatium for the so-called

acquisition. On the face of it the legislative provision

purports to have been made in exercise of the powers con-

ferred on the State legislature under entry 30 of List II

and entry 42 of List III of Schedule VII of the Constitu-

tion. In my opinion, this is a mere device or pretence and

the real object which the legislation intended to accomplish

is to deprive a man of his money which is not ordinarily a

subject-matter of acquisition, in exercise of what are known

as powers of eminent domain by the State, without giving him

anything in exchange; and under the guise of acting under

entry 42 of List III, the legislature has in truth and

substance evaded and nullified its provisions altogether.

The general principles, which distinguish the powers of

eminent domain from other powers of the State under which

the sacrifice of the proprietary interest of a citizen could

be demanded or imposed, are fairly well-known. As has been

observed by Cooley in his Constitutional Limitations "every

species of property which the public needs may require and

which the Government cannot lawfully appropriate under any

other right, is subject to be seized and

961

appropriated under the right of eminent domain (1). Money as

such and also rights in action are ordinarily excluded from

this List by American jurists and for good reasons(2). There

could be no possible necessity for taking either of them

under the power of eminent domain. Money in the hands of a

citizen can be reached by the exercise of the power of

taxation, it may be confiscated as a penalty under judicial

order and we can even conceive of cases where the State

seizes or confiscates money belonging to or in the hands of

a citizen under the exercise of its 'police' powers on the

ground that such fund may be used for unlawful purposes to

the detriment of the interest of the community. But, as

Cooley has pointed out (3), taking money under the right

of eminent domain when it must be compensated by money

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afterwards could be nothing more or less than a forced loan

and it is difficult to say that it comes under the head of

acquisition or requisitioning of property as described in

entry 36 of List II and is embraced within its ordinary

connotation.

It is said by the learned Attorney-General that the

subject matter of acquisition in the present case is. not

money but choses in action. It seems to me that there is no

difference in principle between them because a chose in

action can be available to the acquiring authority only when

it is made to produce money; Otherwise it is useless alto-

gether (3).

Assuming however that entry 36 of List II is wide enough

to include acquisition of money or a right of action, I have

no hesitation in holding that in providing for compensation

in respect of such acquisition the legislature has made a

colourable use of entry 42 of List III and has thereby

defeated the purpose of that entry altogether. Entry 42 of

List III speaks of "principles on which compensation for

property acquired or requisitioned for the purposes of the

Union or of a State or any other public purpose is to be

(1) See Cooley on Constitutional Limitations. Vol. II, p.

1113.

(2) Cooley, Vol. 11, p. 1118; Willis on Constitutional law,

p 816.

(3) Vide Cooley on Constitutional Limitations, Vol. 11, p.

1118, F.N.

124

962

determined, and the form and the manner in which such com-

pensation is to be given". This is a description of legis-

lative head and I agree with the learned Attorney-General

that in deciding the competency of the legislation under

this entry, we are not concerned with the justice or propri-

ety of the principles upon which the assessment of compensa-

tion is to be made under a particular legislation nor are we

concerned with the justice or otherwise of the form or

manner in which such compensation is to be given. I do not,

however, agree with the learned Attorney-General for the

reasons already given by my learned brother in his judgment

that legislation under this head need not provide for any

compensation at all and that a legislative provision which

declares that no compensation is to be given comes within

the ambit of this legislative head. Such construction is

repelled by the very language of the entry which speaks of

giving compensation and not of denying or witholding it.

Stripped of all disguise, the net result of the impugned

provision is that it would be open to the State Government

to appropriate to itself half of the arrears of rent due to

the landlord prior to the date of the acquisition without

giving him any compensation whatsoever. Taking of the whole

and returning a half means nothing more or less than taking

half without any return and this is naked confiscation, no

matter in whatever specious form it may be clothed or dis-

guised. The impugned provision, therefore, in reality does

not lay down any principle for determining the compensation

to be paid /or acquiring the arrears of rent, nor does it

say anything relating to the form of payment, though appar-

ently it purports to determine both. This, in my opinion,

is a fraud on the Constitution and makes the legislation,

which is a colourable one, void and inoperative. The

learned Attorney-General has contended that it is beyond the

competency of the Court to enter into a question of bona

fides or mala fides of the legislature. In a sense this is

true. If the legislature is omnipotent, the motives, which

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impel it to enact a particular law, are absolutely irrele-

vant; and

963

on the other hand, if it tacks competence the question of

motives does not at all arise. But when a legislature has a

limited or qualified power and has got to act within a

sphere circumscribed by legislative entries. the question,

whether in purporting to act under these entries, it has, in

substance, gone beyond them and has done certain things

which cannot be accomplished within the scope of these

entries, is really a question affecting the competency of

the legislature. In such cases, although the legislation

purports to have been enacted under a particular entry, if

it is really outside it, it would be void (1). It has been

suggested in course of the argument on behalf of the State

that in the present case the Government in the exercise of

its powers of acquisition could acquire the arrears of rent

and as the arrears were still unrealised, it was quite

legitimate and proper for the Government to deduct half of

the gross amount as consideration for the trouble and ex-

pense that it would have to undergo in the matter of realis-

ing these arrears. This would mean that what the legisla-

ture intended is simply to enable the Government to help the

zamindars in realising the arrears of rent and as a return

for the help which it is to render, the Government is given

the right to retain half of the arrears that were actually

due. This could not possibly have been the real intention

of the legislature and I do not think that there is any item

in the long legislative lists framed by the Constitution

which empowers the legislature to interfere with the legal

rights of the landlord in this manner apart from special

circumstances like indebtedness or otherwise and impose upon

him an onerous obligation to which he is not a consenting

party. A legislation of this character is a complete novel-

ty, the like of which has seldom been witnessed before. The

result is that I concur in the order which has been made by

my learned brother Mahajan J. in this case and I allow the

appeals subject to the two modifications indicated above.

There would be no order as to costs.

(1) See Lefroy on Canadian Constitution. pp. 79-80.

964

DAS J.--The proceedings out of which these appeals have

arisen were initiated by different proprietors of estates in

Bihar challenging the constitutional validity of the Bihar

Land Reforms Act, 1950 (Bihar Act XXX of 1950) which will

hereafter in this judgment be referred to as "The Act".

On January 26, 1950, when our Constitution came into

force, the Bill which eventually became the Act was pending

before the Legislature of the State of Bihar. After the Bill

had been passed by the State Legislature, it was reserved

for the consideration of the President. On September 11,

1950, that Bill received the assent of the President and

became the Act. The provisions of the Act have been analysed

and summarised in the judgment just delivered by Mahajan J.

and it is not necessary for me to burden this judgment by

recapitulating the same. On September 25, 1950, the text of

the Act was published in the Official Gazette with a notifi-

cation under section 1 (3) dated September 24, 1951), bring-

ing the Act into operation. A notification under section :3

of the Act dated September 25, 1950 vesting the estates of

certain named proprietors was published in the Official

Gazette on the next day. This notification having been

published in the Official Gazette, some of the proprietors

affected thereby instituted suits in the Subordinate Courts

in Bihar after giving the requisite notice under section 80

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of the Code of Civil Procedure and prayed for a declaration

that the Act was unconstitutional and void and that their

title to the properties remained unaffected. Some of the

other proprietors filed applications in the High Court at

Patna under article 226 of the Constitution praying for the

issue of appropriate writs, directions or orders. The State

of Bihar filed its written statements in the suits which

were transferred to the High Court for disposal in exercise

of its extraordinary Original Civil Jurisdiction, The suits

and the applications were heard together. As the issues

involved grave questions of interpretation of the Constitu-

tion, the suits and applications were placed before a Spe-

cial Bench

965

of the Patna High Court and were disposed of on March 12,

1951. All the learned Judges, for one reason or another,

repelled all the main contentions of the proprietors but

held that the Act was unconstitutional in that it denied to

the proprietors equal protection of the laws guaranteed by

article 14 of the Constitution. The High Court rejected the

plea of the State that article 31 (4) of the Constitution by

reason of the words "notwithstanding anything in this Con-

stitution" excluded article 14 at least in its application

to the alleged inequality of compensation. Article 31 (4) is

in these terms :-

"If any Bill pending at the commencement of this Consti-

tution in the Legislature of a State has, after it has been

passed by such Legislature, been reserved for the considera-

tion of the President and has received his assent, then,

notwithstanding anything in this Constitution, the law so

assented to shall not be called in question in any

court on the ground that it contravenes the provisions of

clause (2)."

The State of Bihar obtained leave of the Patna High

Court under article 132 (1) of the Constitution to appeal to

this Court and preferred these appeals before us.

It may be mentioned here that the States of Uttar Pra-

desh and Madhya Pradesh also passed legislation for the

abolition of zamindaries in their respective States and the

validity of those legislations was also contested by the

proprietors affected thereby. The respective High Courts of

those States, however, upheld the validity of the respective

State legislations and the aggrieved proprietors came up to

this Court either on appeal or on substantive application

under article 32. It was at that stage that the Constituent

Assembly passed the Constitution (First Amendment) Act,

1951. Sections4 and 5 of the Act which are material for our

purpose are as follows :-

Insertion of new 4. After article 31 of the Constitution

article 3I-A. the following article shall be inserted,

and shall be deemed always to have been inserted, namely :--

966

31-A. (1)Notwithstanding anything in the fore-

saving of laws going provisions of this Part, no law

providing for ac- providlng for the acquisition by the

quisition of estates, State of any estate or of any rights

etc. therein or for the extinguishment or

modification of any such rights shall be deemed to be void

on the ground that it is inconsistent with, or takes away or

abridges any of the rights conferred by any provisions of

this Part:

Provided that where such law is a law made by the Legis-

lature of a State, the provisions of this article shall not

apply thereto unless such law, having been reserved for the

consideration of the President, has received his assent.

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(2) In this article,--

(a) the expression "estate" shall, in relation to any

local area, have the same meaning as that expression or its

local equivalent has in the existing law relating to land

tenures in force in that area, and shall also include any

jagir, inam or muafi or other similar grant;

(b) the expression "rights", in relation to an estate,

shall include any rights vesting in a proprietor, sub-pro-

prietor, under-proprietor, tenure-holder or other interme-

diary and any rights or privileges in respect of land reve-

nue.

5. After article 31-A of the

constitution as inserted by

section 4, the following arti

cle shall be inserted namely :-

Insertion of new article 3I-B,

31-B. Without prejudice to the

Validation of generality of the provisions con-

certain Acts and tained in article 31-A, none of the

Regulations

Acts and Regulations specified in the

Ninth Schedule or any of the provisions thereof shall be

deemed to be void, or ever to have become void, on the

ground that such Act, Regulation or provision is inconsist-

ent with, or takes away or abridges any of the rights con-

ferred by, any provisions of this Part,

967

and notwithstanding any judgment, decree or order of any

court or tribunal to the contrary each of the said Acts and

Regulations shall, subject to the power of any competent

legislature to repeal or amend it, continue in force."

A new Schedule called the Ninth Schedule specifying

thirteen several Acts and Regulations of which the Bihar

Land Reforms Act, 1950. was the first was added to the

Constitution. The legal validity of the Constitution (First

Amendment) Act, 1951, has been recently upheld by this Court

and all Courts must give effect to the two new articles

which are now substantive parts of our Constitution. Arti-

cle 31-A relates back to the date of the Constitution and

article 31-B to the respective dates of the Acts and Regula-

tions specified in the Ninth Schedule. It has not been

disputed that the provisions of the above two newly added

articles_ have to be taken into consideration in disposing

of these appeals.

Learned counsel appearing for the respondents accept

the position that as a result of the constitutional amend-

ments the impugned Act has been removed from the opera-

tion of the provisions of Part III of the Constitution

including article 14 and that the respondents cannot, there-

fore, complain of the breach of the equal protection of the

laws under article 14 which was the only ground on which the

respondents succeeded in the High Court. Learned counsel,

however, maintain that although they cannot now challenge

the constitutionality of the Act on the ground that it

contravenes or is inconsistent with or takes away or

abridges any of the rights conferred by any of the provi-

sions of Part III of the Constitution; it is, nevertheless,

open to them to call the Act into question on other grounds

founded on other parts of the Constitution or on general

principles of law. Accordingly Mr. P. R. Das formulates the

following five principal grounds of attack against the Act,

namely:

A, On a proper interpretation of articles 245 and 246

read with entry 36 in List II and entry 42 in

968

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List III the Bihar Legislature had no power to enact the

said Act inasmuch as it makes no provision for the payment

of just compensation for the proposed acquisition of the

zamindaries and tenures.

B. Even if the Court does not accept the correctness of

the arguments based on entry 36 in List II and entry 42 in

List III and holds the respondents barred from going into

the question of compensation by reason of articles 31(4),

31-A and 31-B the respondents are still entitled to chal-

lenge the Act on the ground that the proposed acquisition is

not for a public purpose.

C. The Act constitutes a fraud on the Constitution.

that is to say, while it purports to be in conformity with

the Constitution it in fact, constitutes a defiance of it.

D. The Act is unenforceable in that section 32(2)

provides for payment of compensation in 40 equal instalments

without specifying the period of interval between the in-

stalments.

E. The Act delegated essential legislative functions to

the executive Government.

The heads of objections thus formulated by Mr. P.R.

Das apparently look formidable and it is necessary, there-

fore, to consider with close attention the arguments ad-

vanced by him in support of each of them.

Re Ground A: That article 31 ('2) imposes upon a law for

the compulsory acquisition of private property the obliga-

tion to provide for compensation and that such obligation

is, therefore, a provision of article 31 (2) is not chal-

lenged. Nor is it claimed, in view of articles 31 (4), 31-A

and 31-B, that it is still open to the respondents to call

in question the validity of the impugned Act on the ground

that it contravenes or is inconsistent with or takes away or

abridges the provision for compensation made in article 31

(2). What is urged is that the obligation to provide for

compensation is not a provision to be found exclusively in

article a 1 (2) but that it is also provided for in other

parts of the Constitution and

969

that, in so far as such obligation is found provided else-

where, the impugned Act can well be challenged on the ground

that it contravenes or is inconsistent with or takes away or

abridges the provisions of those other parts of the Consti-

tution, for that ground of challenge has not been taken away

by articles 31 (4), 31-A and 31-B, by reason of the delimit-

ing words used therein. The argument is developed in the

following way. The State's power to acquire private property

is, in essence, a power to compel the owner to sell his

property when the public interest requires it. Authority

for this proposition is to be found in Blackstone's Commen-

tary (Broom's Edn.) p. 165 and in Cooley's Constitutional

Limitations, 8th Edn., Vol. II, p. 1201, Footnote (8).

Indeed, in some of the English statutes for compulsory

acquisition of lands and hereditaments (e.g., 5 & 6 Vic. C.

94 and 8 & 9 Vic. C. 18) the word "purchase" was used to

denote acquisition. As there can be no sale without a

price, there can be no compulsory acquisition of private

property without a provision for payment of just compensa-

tion, i.e., its equivalent value in money. That the obliga-

tion to pay just compensation for compulsory acquisition of

private property is a principle of natural equity recognised

by all temperate and civilized governments, that the right

to compensation is an incident to the exercise of the power

of eminent domain and that the one is so inseparably con-

nected with the other that they may be said to exist, not as

separate and distinct principles but, as parts of one and

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the same principle are well-established by a series of

decisions of the American courts quoted by Harlan J. in

Chicago, Burlington and Quincy Railroad Company v.

Chicago(1). In England Lord Dunedin in Attorney-General v.

De Keyser's Royal Hotel Ltd.(2), described the obligation to

pay compensation as "a necessary concomitant to taking". It

follows, therefore, that the obligation to pay compensation

is inseparable from and is implicit in the power of acquisi-

tion. This obli-

(1) 166 U.S. 216; 4r L. Ed. 979, (2) [1920]

A.C. 508.

970

gation flows from the mere use of the word ,'acquisition" in

entry 36 in List II, as in entry 33 in List I. That word, by

itself, according to Mr. P.R. Das, connotes a compound

concept, namely, the concept of a power of taking on just

terms and confines the very legislative competency under

those entries within the limits of that compound concept.

If, however, the word "acquisition" in entry 36 in List II

and entry 33 in List I does not by itself imply the obliga-

tion to pay just compensation, then, urges Mr. P.R. Das in

the alternative, the words "subject to the provisions of

entry 42 of List III" occurring at the end of entry 36 in

List II certainly brings in that obligation. On a plain

reading of entry 36 in List II the power to make law with

respect to matters specified therein is "subject to", that

is to say, "conditional upon" the exercise of legislative

power under entry 42 in List III.Those concluding words, Mr.

P.R. Das says, import the obligation to provide for compen-

sation as provided in entry 42 in List Iii into entry 36 in

List II and thereby enlarge the content of the last men-

tioned entry so as to make it a legislative head comprising

the compound concept referred to above. The third alterna-

tive position is that if the word "acquisition" in entry 36

in List II does not, by itself, imply the obligation to

provide for. compensation and if the words "subject to the

provisions of entry 42 of List III" do not import that

obligation as stated above, entry 42 in List Iii should,

nevertheless, be construed as conferring a power coupled

with a duty, so that if the law-making power under entry 33

in List I or entry 36 in List II is at all exercised, the

lawmaking power under entry 42 in List III must, on the

principle laid down by the House of Lords in Julius v.

Lord Bishop of Oxford(1) and adopted by this Court in

Chief Controlling Revenue Authority v. Maharashtra Sugar

Mills Ltd.(2), also be exercised. It is urged that the

Bihar Legislature having purported to exercise its power to

make a law for compulsory acquisition of property under

entry-36 in

(1) L.R. 5 App. Cas. 214. (2) [1950] S.C.R.

971

List II but not having made any law laying down any princi-

ple for determining what may, in the eye of the law, be

regarded as just compensation at all, the Act is ultra vires

and void. The arguments thus developed by Mr. P.R. Das

undoubtedly have the merit of attractive ingenuity and

apparent cogency and certainly call for very careful consid-

eration,

To cut at the root of the above argument the learned

Attorney-General appearing for the appellant State contends

that the impugned Act is a law made with respect to matters

mentioned in entry 18 in List II and not under entry 36 in

List II. The contention is that it is essentially a legisla-

tion for land reforms and alteration of land tenures. It is

pointed out that the Act eliminates the interests of all

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zemindars and intermediate tenure-holders so that the State

and the actual tiller of the soil may be brought into direct

relationship. Incidental to this primary object is the

acquisition of the various interests in the land. Reference

is made to the cases of The United Provinces v. Mst. Atiqa

Begum and Others(1), Thakur Jagannath Baksh Singh v. The

United Provinces(2) and Megh Raj and Another v. Allah Rakhia

and Others(s) in support of the proposition that each entry

in the list, which is a category or head of the subject-

matter of legislation, must be construed as widely as possi-

ble so as to inelude all ancillary matters. This line of

reasoning found favour with Shearer J. but was rejected by

Reuben J. and S.K. Das J. There is no doubt that "land" in

entry 18 in List II has been construed in a very wide way

but if "land" or "land tenures" in that entry is held to

cover acquisition of land also, then entry 36 in List II

will have to be held as wholly redundant, so far as acquis-

tion of land is concerned, a conclusion to which I am not

prepared tO assent. In my opinion, to give a meaning and

content to each of the two legislative heads under entry 18

and entry 36 in List II the former should be read as a

legislative

(1) [1940] F.C.R. IIO at p. 134- (3) [1947]

F.C.R. 77.

(2) [1946] F.C.R. III at p. 119.

972

category or head comprising land and land tenures and all

matters connected therewith other than acquisition of

land which should be read as covered by entry 36 in List II.

Further, the impugned Act purports to acquire all arrears of

rent and a law for acquisition of the arrears of rent cannot

possibly be said to be a law with respect to matters speci-

fied in entry 18 in List II for it cannot be supposed to be

a law relating to the collection of rent within the meaning

of that entry. On this point I find myself in agreement

with Reuben J. and S.K. Das J. and I cannot accept the

arguments of the learned Attorney-General to the contrary.

Therefore, the arguments of Mr. P.R. Das founded on entry 36

in List II and entry 42 in List III cannot be rejected in

limine but have to be considered and I proceed to do so

immediately.

That the obligation to pay compensation is concomitant

to, that is to say, accompanies, the power of compulsory

taking of private property by the State cannot be disputed.

The first important question is whether this obligation is

implicit in the term "acquisition" as used in entry 36 in

List II, or in other words whether this obligation is to be

inferred simply from the use of that term as a part of the

content or meaning thereof. In Attorney-General v. De Key-

ser's Royal Hotel Limited (supra) Lord Dunedin pointed out

that the power of acquisition was. in its origin, derived

from the prerogative of the Crown and that the payment of

compensation was originally a matter of negotiation and

bargain between the Crown and the subject, but came to be

determined later on by statutes of local application and

finally by statutes of general application and that, there-

fore, the Crown, which is an assenting party to every stat-

ute, must, in effect, be regarded as having consented to the

exercise of its prerogative being made subject to payment of

compensation regulated by statutes. In that case, however,

it was not disputed in arguments that the taking itself was

a matter of prerogative right. In the United States of

America the power of eminent domain was not originally, in

terms, conferred on

973

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the United States by any provision of the Federal Constitu-

tion, but this power has always been recognised to exist

as an inherent attribute of the sovereignty of the State.

So far as the United States are concerned, the Fifth Amend-

ment by providing that private property shall not be taken

for public use without just compensation gave a constitu-

tional recognition to the right of eminent domain and, to

protect the subjects, imposed a limitation on the exercise

of that right by the State. This indicates that the power

of acquisition and the obligation to pay compensation are

two separate and distinct concepts although the second

follows the first. If the obligation to pay compensation

were an integral part of the concept or the meaning of

"taking" itself, then this part of the Fifth Amendment was

wholly unnecessary. It follows, therefore, that the expres-

sion "acquisition" does not, by itself and without more,

import any obligation to pay compensation. It is urged by

Mr. P.R. Das that entry 42 in List III really implements the

obligation implicit in entry 36 in List II and the two

entries are complementary to each other. If this obligation

were not implicit in entry 33 in List II then where else, it

is asked, is the obligation to pay compensation to be found

? The obvious answer is that obligation is to be found in

article 31 (2) in Part III of our Constitution. The

obligation to pay compensation may be introduced as a part

of the legislative power itself, in which case it becomes a

composite power, namely, a power to make law with respect to

acquisition circumscribed by the obligation to provide for

compensation. Thus in section 31 (XXXI) of the Commonwealth

of Australia Constitution Act the acquisition of property on

just terms has been made a head or category of legislative

power of the Commonwealth Parliament. There the power is

not to make a law for the acquisition of property simplicit-

er but is to make a law for the acquisition of property on

just terms which connotes that the legislative power itself

is circumscribed by the necessity for providing just terms.

But there is no overriding

974

necessity of constitutional law that I know of, or that has

been brought to our notice, which requires that the obliga-

tion to pay compensation for the acquisition of property

must be made part and parcel of the very legislative power

to make a law with respect to the compulsory acquisition of

private property. It must depend on the provisions of the

particular constitution under consideration. What do we

find in our Constitution ? We find that under article 246

Parliament has exclusive power to make laws with respect,

inter alia, to matters specified in entry 33 in List I,

namely, "acquisition or requisitioning of property lot the

purposes of the Union, that the State Legislatures have

exclusive power to make laws with respect, inter alia, to

matters specified in entry a6 in List II, namely, the

,acquisition or requisitioning of property except lot the

purposes of the Union subject to the provision of entry 42

of List III" and that both Parliament and the State Legisla-

tures may make laws with respect to matters set forth in

entry 42 in List III, namely, the principles for determining

the compensation and the form and manner of giving such

compensation. This legislative power of Parliament or of

the State Legislatures is, by article 245, made "subject to

the provisions of this Constitution." One of the provisions

of the Constitution is article 31 (2) under which no proper-

ty can be "taken possession of or acquired for public pur-

poses under any law authorising the taking of such posses-

sion or such acquisition unless the law provides for compen-

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sation for the property and either fixes the amount of

compensation or specifies the principles on which, and the

manner in which, the compensation is to. be determined and

given." The scheme of our Constitution obviously is to

provide the three things separately, namely, the power of

making a law for acquisition of property in article 246 read

with entry 33 in List I and entry 36 in List II, the obliga-

tion of such law to provide for compensation in article

31(2) and the power of making a law laying down the princi-

ples for determining such compensation in article 246 read

with entry 42 in List III.

975

According to this scheme it is not necessary at all to

regard entry a3 in List I and entry 36 in List, II, which

are mere heads of legislative power, as containing within

themselves any obligation to provide for the payment of

compensation. In other words, it is not necessary to treat

the obligation to pay compensation as implicit in or as a

part or parcel of these legislative heads themselves, for it

is separately and expressly provided for in article 31

(2). The well-known maxim expressum facit cessare tacitum

is, indeed, a principle of logic and common sense and not

merely a technical rule of construction (See Broom's Legal

Maxims, 10th Edn, p. 443 at p. 452). The express provision

in article 31 (2) that a law of acquisition, in order to be

valid, must provide for compensation, will, therefore,

necessarily exclude all suggestion of an implied obligation

to provide for compensation sought to be imported into the

meaning of the word "acquisition" in entry 36 in List II. In

the face of the express provision of article 31 (2) there

remains no room for reading any such implication in the

legislative heads.

Mr. P.R. Das suggests, in the alternative, that if the

obligation to provide for compensation is not implicit in

the word "acquisition" itself as used in entry 36 in List II

that obligation is attracted and made a part and parcel of

that entry by reason of the words "subject to the provisions

of entry 42 of List III". The last mentioned words are,

however. not to be found in entry 33 in List I and this part

of Mr. P.R. Das's argument would lead to this anomalous

result that while the obligation to provide for compensation

is made a part of the legislative power under entry 36 in

List II by virtue of its last few words quoted above, no

such obligation is attracted and made part of the legisla-

tive power under entry33 in List I, and that, therefore, in

making a law with respect to acquisition of property under

entry 33 in List I Parliament, unlike the State Legisla-

tures, will not be bound to provide for any compensation at

all. This cannot possibly be the intention of the framers

976

of our Constitution. Further, Mr. P.R. Das reads the words

"subject to" as meaning "conditional upon" the exercise of

the legislative power under entry 42 in List III, that is to

say, conditional upon fulfilling the obligation to provide

for compensation and the form and the manner in which such

compensation is to be given. I agree with S.K. Das J. that

the words "subject to" have not the meaning sought to be

given to them by Mr. P.R. Das but that they mean "but not"

so as to indicate that the scope of entry 36 in List II is

restricted, that is to say, that the subjectmatter of entry

42 in List III is not within the content of entry 36 in List

II. If entry 42 in List III were, by reason of the words

"subject to the provisions of entry 42 of List III" occur-

ring in entry 36 in List II, to be read as having been made

a part of the content of entry 36 in List II then it may

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well be argued that, in view of article 246, Parliament will

not be competent to maintain law with respect to princi-

ples on which compensation is to be determined. It is in

order to prevent this argument and out of abundant caution

that the subjectmatter of entry 42 in List III has been

excluded from the content of entry 36 in List II by the

words "subject to" et cetera and Parliament may, therefore,

freely make a law with respect to the matters thus excluded

from entry 36 in List II and set forth as a separate and

independent item in entry 42 in List III. This consideration

was not material in connection with entry 33 in List I which

explains the omission of the words "subject to" et cetera

from that entry.

Mr. P.R. Das finally urges that if the obligation to provide

for compensation is not implicit in the word "acquisition"

in entry 36 in List II and if that obligation is not to be

read into that entry even in view of the words "subject

to ................ "at the end of it, even then if the

State exercises its power to make a law with respect to

acquisition of property under entry 36 in List II it is the

duty of the State Legislature to make a law also with re-

spect to matters specified in entry 42 in List III on the

principle that as

977

entry 42 in List III confers a power on the Legislature for

the protection of the interest of persons whose property is

compulsorily acquired, such power must. therefore, be re-

garded as coupled with a duty to exercise it. No authority

has been brought to our notice establishing or even suggest-

ing that the principle laid down by the House of Lords in

Julius v. Lord Bishop of Oxford (supra) has been extended to

the exercise of legislative power and I am not prepared to

assent to the proposition. Article 246 does not make it

obligatory for Parliament or the State Legislatures to make

a law under any of the entries in any of the Lists in the

Seventh Schedule. Entry 42 in List III does not, therefore,

impose any duty upon Parliament or the State Legislatures to

make any law for payment of compensation. What requires

Parliament or State Legislatures, when making a law for

compulsory acquisition of private property, to provide for

compensation and either to fix the amount thereof or specify

the principles on which and the-manner in which the compen-

sation is to be determined and given is the provision of

article 31 (2). Entry 42 in List 111 only constitutes a

legislative head under which Parliament or the State Legis-

latures may make a law so as to give effect to the obliga-

tion expressly imposed on them by article 31 (2). In view

of the clear provision of that article it is wholly unneces-

sary to read entry 42 in List III as imposing an implied

duty on the Legislature on the principle referred to in the

House of Lords case.

That the obligation to provide for compensation is not

included in the content of the legislative power under entry

36 in List II, by itself or read with entry 42 in List III,

will be made further clear when we come to consider closely

clauses (4) and (5) of article 31 and article 31-A. Article

31(4) protects a law of the description mentioned therein

against the provisions of article 31(2). It follows, there-

fore, that what is sought to be protected by article 31(4)

is a law for the acquisition or taking possession of proper-

ty which does not, amongst other things, provide for compen-

sation or

978

does not fix the amount or specify the principles on which

and the manner in which the compensation is to be determined

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and given, for otherwise there would be no necessity for any

protection. The question at once arises as to whether there

is any legislative entry in List 11 under which a law for

acquisition or taking possession of property without compen-

sation can be made by a State Legislature. To test the

validity of Mr. P.R. Das's argument and to avoid the compli-

cation arising out of the residuary powers of Parliament

under article 248 and entry 97 of List II I have taken the

case of a law of acquisition made by the legislatures of a

State which also come within article 31 (4). Is there,

then, any entry in List II under which a State Legislature

can make a law for acquisition without compensation or

public purpose ? Obviously there is none, except entry 36 in

List II. If that entry by itself or read with entry 42 in

List III has any implication as suggested, namely, that a

law for acquisition of property-made under entry 36 in List

II without a provision for compensation will be beyond the

legislative competency of the State Legislatures, then

there is no other entry under which such a law can be made

by a State Legislature and there can, therefore, be no point

in making a provision in article 81(4) for protecting,

against article 31(2), a law which, on this hypothesis.

cannot be made at all. Article 81(4) postulates a law which

offends against 31 (2) and so far as the State Legislatures

are concerned there is no entry in List II except entry 36

under which such an offending law may be made by the State

Legislatures. This circumstance unmistakably establishes

that entry 36 in List II, by itself or read with-entry 42 in

List III, has not any such implication as is imputed to it.

Likewise take article 81 (5) (b) (ii) which protects the

provisions of any law which the State may hereafter make for

the promotion of public health or the prevention of danger

to life or property. The law which is thus sought to be

protected must also involve acquisition of property without

any provision for compensation, for otherwise there can be

no occasion or necessity for

979

any protection against article 31 (2). A law of this kind,

in so far as such law provides for acquisition of property,

must necessarily be made by a State Legislature. if at all,

under entry 36 in List II. If Mr. P.R. Das's contentions

were correct, a law for the promotion of health or the

prevention of danger to life or property involving the

acquisition of property without a provision for compensa-

tion, which is what is sought to be protected from article

31 (2), can never be made, for the obligation to provide for

compensation is, according to him, implicit in entry36 in

List II, by itself or read with entry 42 in List III, and

there is no other entry under which a law may be made by a

State Legislature with respect to acquisition of property.

It is futile to attempt to get over this anomaly by suggest-

ing that clauses (4) and (5) (b) (ii) of article 31 have

been inserted in the Constitution ex abundanti cautela, for,

if Mr. P.R. Das were correct in his submission, no amount of

caution was necessary for protecting a law that, ex hypoth-

esi, cannot be made at all. Similar arguments may as well be

founded on article 31-A, for that article also protects a

law from article 31 (2) which is in Part III of the Consti-

tution. It is suggested that article 31-A postulates a valid

law made by a competent legislature within the ambit of its

legislative powers. If a State Legislature in making a law

for the acquisition of property for a public purpose under

entry 36 in List II must provide for compensation then a law

made conformably with this supposed requirement of that

entry by a State Legislature will require no protection at

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all against article 31 (2), and article 31-A must be regard-

ed as meaningless and unnecessary. Surely, that conclusion

is manifestly untenable. In my opinion clauses (4) and

(5)(b) (ii) of article 31 and article 31-A clearly negative

Mr. P.R. Das's proposition. In my judgment, for the reasons

stated above, the major premise in the arguments advanced

by Mr. P.R. Das under 'the first head, namely, that the

obligation to pay compensation is implicit in entry 36 in

Lis II by itself or read with entry 42 in List III is un-

sound.

980

The obligation to provide for compensation being, as I hold,

a provision of article 31(2) and not being implicit in or a

part and parcel of the legislative power itself under entry

36 in List II read by itself or in conjunction with entry 42

in List III, the impugned Act cannot, by virtue of articles

31(4), 31-A and 31-B, be called in question on the ground

that it contravenes or is inconsistent with or takes away or

abridges any of the rights conferred by the provisions of

clause (2) of article 31, that is to say, that it does not

provide for compensation.

Assuming that the obligation to pay compensation which

is expressly provided in article 31(2) is also implicit in

entry 36 in List II by itself or read with entry 42 in List

III, the respondents cannot. even then, be permitted to call

in question the validity of the impugned Act on the ground

that it does not provide for compensation, for then they

will be doing exactly what they are forbidden to do by

article 31 (4) and the newly added articles. Article31(4)

and the added articles debar the respondents from question-

ing the validity of the Act on the ground, inter alia, that

it contravenes or is inconsistent with or takes away or

abridges any of the rights conferred by the provisions of

clause (2) of article 31. The emphasis in those articles is

rather on the "provisions" than on the number of the article

or the Part of the Constitution. It is obvious that the real

substance of the matter is that articles 31(4), 31-A and

31-B expressly seek to prevent a challenge to the validity

of the Act based on the ground, inter alia, that it does not

provide for compensation. This obligation to provide for

compensation is no doubt one of the provisions of article 31

(2) but if as contended by Mr. P.R. Das, the self same

provision be found elsewhere in the same Constitution, e.g.,

entry 36 in List II or entry 42 in List III, then that

"provision" must also be regarded as having been covered by

article 31(4) and the two added articles, for otherwise

those articles will be rendered nugatory. In my opinion, if

two constructions are possible, the Court should adopt that

which

981

will implement and discard that which will stultify the

apparent intention of the makers of the Constitution.

Further, it must be borne in mind that article 31 (4) which

applies "notwithstanding anything in this Constitution",

will, by force of the very words, protect the Act against

even legislative incompetency, if any, arising out of the

alleged noncompliance with the suggested implied provisions,

if any, of entry 36 in List II and entry 42 in List III. In

my judgment the respondents are not, by reason of articles

31(4), 31-A and 31-B, entitled to call the Act in question

on the ground that it does not provide for compensation,

whether the ground is formulated as a breach of article 31

(2) or of the implied provision, if any, of the legislative

heads mentioned above.

It will be noticed that the argument that the Act is

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unconstitutional is founded on the assumption that it has

not laid down any principle for determining compensation as

required by entry 42 in List III and that the provision for

compensation is wholly illusory. Chapter V of the Act deals

with assessment of compensation. Shortly put, the scheme is

to start with the gross assets which are taken to be synony-

mous with the gross income and then to make certain deduc-

tions therefrom and to arrive at the net assets. Then the

compensation is to be calculated at a sliding scale of rates

varying from 20 to 3 times of the net income. To the amount

thus determined is to be added a moiety of the accumulated

arrrears of rent etc. and the compensation for the mines and

minerals as determined under section 25. Ex facie, it cannot

be disputed that the Act does prescribe some principles for

determining the compensation payable to the proprietor or

tenure-holder. It is, however, pointed out that the deduc-

tion of 5 to 20 per cent. of the gross assets as and by way

of cost of management is quite arbitrary. It is said that

although it is well known that the percentage of cost of

management in relation to the income of a small estate is

greater than that of a larger estate, yet the Act provides

for deducting 20 percent. of the gross assets in the case of

proprietors

982

of the larger estates but only 5 per cent. in the case of

the smaller estates. Objection is next taken to the deduc-

tion of any amount under the head of works of benefit to

raiyats the and also to the scale of such deduction. These

arguments, to my mind, do not on close scrutiny, amount to

saying that the Act does not lay down any principle for

determining the compensation. The real underlying implica-

tion of these arguments, as I understand them, is that the

principles are not good enough in that they do not produce

fair compensation. I do not think the Court can go into the

policy of the legislation. All that the Court is concerned

with is to see whether any principle has been laid down as

mentioned in entry 42 in List III. It is true that the

percentage of costs of management calculated on the basis of

the income of a big estate is less than that of a smaller

estate, but it is quite clear that the Act has fixed the

scale of deduction under this head and under the head of

works of benefit according to the capacity of the proprietor

or tenureholder to bear it. It is impossible to say that

the provision for deduction for works of benefit to the

raiyats is not supported by any principle. A landlord is

expected to spend money on works of benefit to his raiyats,

e.g., providing tanks and wells, irrigation, charitable

dispensary, schools and so forth and be it said to the

credit of some of the landlords that in practice they do

spend money on this account. Therefore, there is nothing

wrong, when calculating the net income of a landlord, to

deduct something which the' landlords should and some of

them often do, in practice, spend under this head. I see no

absence of principle in this provision. The rate of deduc-

tion, I have said, has been fixed according to the capacity

of the proprietors or tenure-holders. It has been shown.

and it is not denied that in many cases a calculation of the

net income on the basis of the principles laid down in the

Act operates to reduce the gross income to a very small net

income. To take only one instance, the gross annual income

of the Darbhanga estate is about Rs. 47,85,069, the

deduction

983

allowed by the Act is about Rs. 44.88,585 and the net income

computed according to the principles laid down in the Act

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comes to about Rs. 2,96,484 or say Rs. 3 lacs and the com-

pensation payable to the Maharajadhiraj of Darbhanga will

be only rupees 9 lacs. It has also been shown that at least

in one case, e.g., in the case of the Raja of Purnea the

compensation calculated according to the principle laid down

in the Act works out at a deficit figure. The fact that in

one isolated case the calculation may work out in this way,

does not, however, prove that no principle has been laid

down. Indeed, in all other cases the principle laid down in

the Act actually produces compensation, however inadequate

it may be said to be in some cases. If a principle has been

laid down, then the provisions of entry 42 in List III are

amply satisfied and no question of legislative incompetency

can arise. If a principle has been laid down in the Act but

that principle does not in fact produce any compensation in

any rare case or adequate compensation in some cases then

the real complaint should be, not that no principle has been

laid down but, that the principle laid down does not produce

what may be called just compensation. That result may

offend against the provisions of article 31 (2) but certain-

ly not against entry 42 in List III and in view of articles

31 (4), 31-A and 31-B the Act cannot be challenged for non-

compliance with article 31 (2). On the other hand, even if

it is held that no principle has, in fact, been laid down by

the Act, as contended, then that fact not only amounts to a

breach of the provisions of entry 42 in List III but also

constitues a breach of the provisions of article 31 (2)

which clearly and emphatically requires the law to either

fix the compensation or lay down the principles on which and

the manner in which the compensation is to be given and a

breach of this "provision", call it a provision of article

31(2) or one of entry 42 in List III. cannot. for reasons

already stated, be questioned in view of articles 31(4),

31.A and 31-B. It should also be remembered that article

31(4): by reason of the words "notwithstanding

984

anything in this Constitution" occurring therein will also

protect the Act even against the alleged legislative incom-

petency arising out of the noncompliance with all provisions

of the Constitution relating to the payment of compensation

or the existence of a public purpose including the supposed

requirement of producing actual compensation said to be

implicit in the provisions of entry 42 in List III. In my

judgment, the Act cannot be called in question on the ground

of legislative incompetence of the Bihar Legislature to

enact it under entry 36 in List II or entry 42 in List III.

What I have stated above is sufficient to repel the

first ground of attack levelled against the Act by Mr. P.R.

Das. But before passing on to the second main ground of

attack I think it right to deal with a few subsidiary points

canvassed before us.

It is said that section 3 of the Act, which is its main

operative section, does not contemplate or authorise the

acquisition of arrears of rent at all, for the notification

under that section only refers to the vesting of the estates

or tenures in the State. It is, however, to be noticed that

the consequence of issuing that notification is that the

arrears of rent including all that are mentioned in clause

(b) of section 4 are also to vest in, and be recoverable by,

the State. This vesting of the arrears of rent in the State

necessarily implies the transfer of the rights of the pro-

prietors or tenureholders to the State and this process

must, therefore, amount to the acquisition of that right by

the State. Therefore, in effect, the Act does contemplate

the acquisition of the arrears of rent by the State.

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On the authority of a passage in Willis' Constitutional

Law, p. 816, it is argued that the power of eminent domain

cannot be exercised with respect to money and choses in

action besides certain other unusual forms of property.

This passage is founded on certain earlier decisions of the

American Courts. It is, however, clear from Nichols on

Eminent Domain, Vol. I, p. 99, paragraph 2, and the case of

Cincinnati

985

v. Louisville & N.R. Co.(1) cited therein that the modern

view is that the right of eminent domain can be exercised on

choses in action. In any case, we are t0 consider whether

arrears of rent are "property" in the sense in which that

expression is used in our Constitution and understood in our

law. What are the arrears of rent but rents that have

fallen due but have not been paid ? It is not at all money

in the till of the landlord but it is a debt due by the

tenants. It is, therefore, nothing but an actionable claim

against the tenants which is undoubtedly a species of "pro.

perry" which is assignable. Therefore, it can equally be

acquired by the State as a species of "property. ''

It is finally urged that the Act makes no provision for

payment of compensation for taking this item of property.

It is true that in section 24 the word "compensation"

is used in connection with the taking of the estates or

tenures and also the taking of mines and minerals but not in

connection with the fifty per cent. of the arrears of rent

which are directed to be added to the compensation. But

this provision for adding the fifty per cent. of the arrears

also appears in the chapter headed "Assessment of Compensa-

tion" and, therefore, the fifty per cent. of the arrears is

added in the process of the assessment of the compensation.

Further, why is this fifty per cent. given to the proprie-

tors or tenure-holders at all unless it were for compensa-

tion ? It is pointed out that when the State takes away a

lac of rupees and returns 50,000 rupees, it, in reality,

pays no compensation but by this shift and contrivance only

takes away the other 50,000 rupees for nothing. This argu-

ment sounds plausible at first but is not founded on any

good principle. This argument arises only because a moiety

is paid back, as it were, in the same coin. If compensation

for money were made, say, by giving some land of the value

of a moiety of the money taken, the same argument would not

have been available and all that could be said

(1) 223 U.S. 390, 50 L.Ed. 481. 127

986

would have been that the land so given, not being equivalent

in value to the money compulsorily taken away, could not be

said to be a just compensation. That argument, in view of

articles 31 (4), 31-A and 31-B, would, of course, have been

futile. But I see no difference in principle or law when

compensation for acquisition of arrears is made in money. In

such a case if only a moiety of the amount of arrears is

returned the obvious complaint will be that the return of

50,000 rupees is not fair or adequate compensation for

taking away Rs. 1,00,000 and that complaint may have pre-

vailed had there been no provision like those we have in

articles 31(4), 31-A and 31-B. Apart from this, the argument

completely overlooks the fact that the arrears of rent are

not really cash in the till of the proprietor or tenure-

holder but is only a debt due by the tenants. What is the

market value of this book debt ? This debt will have to be

realised, possibly by suit followed by execution proceedings

involving time and money in costs. Part of it, quite con-

ceivably, may not be realised at all. Therefore, the State

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takes the risk of realising or not realising the arrears of

rent but irrespective of the results of its efforts for

their realisation the fifty per cent. of the arrears is in a

lump added to the compensation. This, to my mind, indicates

clearly that compensation is in fact paid for the arrears of

rent and I am not prepared to say that the payment of a

moiety of the book debts as compensation is so illusory as

to amount to nothing, as contended by Mr. P.R. Das. Even if

it be inadequate, the grievance will be, not that no princi-

ple has been laid down in the Act as required by entry 42 in

List III but, that the principle so laid down does not

produce adequate compensation and there is, therefore, a

contravention of the provisions of article 31 (2). That

defect cannot, however, be made a ground of attack in view

of articles 31(4), 31-A and 31-B for reasons explained

above.

Re Ground B: The second point urged by Mr. P.R. Das is

that even if the Court does not accept the argument as to

the necessity for providing for compensation

987

being implicit in entry 36 in List II and entry 42 in List

III and holds that the respondents are, by reason of the

provisions of articles 31 (4), 31-A and 31-B, debarred from

questioning the validity of the Act on the ground that it

does not provide for compensation the respondents are,

nevertheless, entitled to challenge the Act on the ground of

the absence of a public purpose. That the existence of a

public purpose is an essential prerequisite to the exercise

of the power of compulsory acquisition has not been disputed

by the learned Attorney-General. The contention put forward

on behalf of the respondents is that the necessity for the

existence of a public purpose as a condition precedent to

compulsory acquisition of private property is not a "provi-

sion" of article 31 (2) but is a requirement of entry 36 in

List II or entry 42 in List III. The words "for public

purposes" do occur in article31(2) but it is said that there

is a distinction between a "provision" and an assumption. It

is urged that article 31(2) assumes a law authorising the

taking of possession or the acquisition of property for a

public purpose and provides that the property shall not be

taken possession of or acquired even for that public purpose

unless the law also provides for compensation. It is,

therefore, concluded that the only "provision" of article

31 (2) is that the law authorising the taking of possession

or the acquisition of property for a public purpose must

provide for compensation and it is this "provision" only

that cannot be made a ground of attack on the Act by reason

of articles 31 (4), 31-A and 31-B of the Constitution. This

argument has found favour with Reuben J. and S.K. Das J.

The latter learned judge, after referring to a passage in

his own judgment in the earlier case of Sir Kameswar Singh

v. The Province of Bihar (1) concludes as follows :--

"Clause (2), strictly speaking, does not, in express

words, make" public purposes" a condition precedent to

compulsory acquisition but rather assumes that such acquisi-

tion can be for public purposes only; it does so by neces-

sary implication."

(1) A.I.R. 1950 Pat. 392.

988

The learned Judge then refers to the following passage

in the judgment of my learned brotherMukherjea J. in

Chiranjit Lal Choudhury v. The Union of India & Others

(1):__

"Article 31(2) of the Constitution prescribes a twofold

limit within which such superior right of the State should

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be exercised. One limitation imposed upon the acquisition

or taking possession of private property which is implied in

the clause is that such taking away must be for public

purpose. 'the other condition is that no property can be

taken unless the law which authorises such appropriation

contains a provision for payment of compensation in the

manner laid down in the clause." '

I do not, however, see how the above observations of

Mukherjea J. in any way support the arguments of Mr. P.R.

Das that the existence of a public purpose is not a provi-

sion of article31 (2) but is an inherent condition of any

legislation for compulsory acquisition of private property.

It is significant that Mukherjea J. recognises that article

31(2) "prescribes" a two-fold limit. Surely, a limit which

is "prescribed" by the articles must be a provision thereof.

In any case, what is implied in the clause must, neverthe-

less, be a provision of the clause, for the expression

"provision" is certainly wide enough to include an implied

as well as an express provision. Be that as it may, I am

prepared to go further and say, for reasons I shall present-

ly explain, that the requirement of a public purpose as an

essential prerequisite to compulsory acquisition is, if

anything, essentially a provision of that clause and an

integral part of it.

Article 31 is one of a group of articles included in

Part III of the Constitution under the heading "Fundamental

Rights". It confers a fundamental right in so far as it

protects private property from State action. Clause (1) of

the article protects the owner from being deprived of his

property save by authority of law. A Close examination of

the language of clause (1)will

(2) [1950] S.C.R. 869.

989

show that this immunity is a limited one and this will at

once be clearly perceived if we convert the negative lan-

guage of clause (1) into positive language. In its positive

form clause (1) will read :-

"Any person may be deprived of his property by authority

of law".

The only limitation put upon the State action is the

requirement that the authority of law is a prerequisite for

the exercise of its power to deprive a person of his proper-

ty. This confers some protection on the owner in that he

will not be deprived of his property save by authority of

law and this protection is the measure of the fundamental

right. It is to emphasise this immunity from State action

as a fundamental right that the clause has been worded in

negative language. Likewise, clause (9.) is worded in nega-

tive language in order to emphasise the fundamental right

contained therein. The enunciation of this fundamental right

necessarily requires a statement of the ambit and scope of

the State action and to fix the ambit and scope of the State

action it is necessary to specify the limitations on the

State action, for that limitation alone is the measure of

the fundamental right. Clause (2) of the article, in its

positive form, omitting words unnecessary for our present

purpose, will read as follows:--

"Any Property ..................................may be taken

possession of or acquired for public purposes under any

law authorising the taking of such possession or such

acquisition if the law provides for compensation for the

property taken possession of or

acquired ........................................"

Put in the above form, the clause makes it clear at once

and beyond any shadow of doubt that there are three limita-

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tions imposed upon the power of the State, namely, (1) that

the taking of possession or acquisition of property must be

for a public purpose, (2) that such taking of possession or

acquisition must be under a law authorising such taking of

possession or acquisition and (8) that the law must provide

for compensation

990

for the property so taken or acquired. These three limita-

tions constitute the protection granted to the owner of the

property and is the measure of his fundamental right under

this clause. Unless these limitations were provisions of the

article, the article would have afforded no immunity at all.

I am, therefore, clearly of opinion that the existence of a

public purpose as a prerequisite to the exercise of the

power of compulsory acquisition is an essential and integral

part of the "provisions" of clause (2). If the requirement

of a public purpose were not a provision of article 31(2),

then it will obviously lead us to the untenable conclusion

that Parliament will be free under its residuary powers

under article 248 and entry 97 of List I of the Seventh

Schedule to make a law for acquiring private property with-

out any public purpose at all and to the still more absurd

result that while Parliament will have to provide for com-

pensation under article 31(2) in a law made by it for acqui-

sition of property for a public purpose it will not have to

make any provision for compensation in a law made for acqui-

sition of property to be made without a public purpose. Such

could never have been the intention of the framers of our

Constitution. The existence of a public purpose as a condi-

tion precedent to the exercise of the power of compulsory

acquisition being then, as I hold, a "provision" of article

31 (2), an infringement of such a provision cannot, under

articles31 (4), 31-A and 3 I-B, be put forward as a ground

for questioning the validity of the Act.

Mr. P.R. Das's second line of argument on this main head

is that the necessity for the existence of a public purpose

is implicit in entry 36 in List II and that the existence of

a public purpose is also a requirement of entry 42 in List

III which is made a part of entry 36 in List. II by virtue

of the words "subject to" etc., appearing at the end of that

entry and his conclusion is that in the absence of a public

purpose the Bihar Legislature had no legislative competency

under those two entries to enact the impugned Act and that

this ground of attack is still available

991

to him notwithstanding the provisions of articles 31(4),

31-A and 31-B. He does not rely on any other part of the

Constitution as insisting on the existence of a public

purpose as a prerequisite for compulsory acquisition of

private property. Entry 36 covers any purpose except the

purpose of the Union and is not, in terms,limited to

public purpose. Secondly,the argument based on the words

"subject to" etc. at the end of entry 36 in List II which

are supposed to import the provisions of entry 42 in List

III into entry 36 in List II is not well-founded and it

becomes obvious when we look at entry 33 in List I. There

are no words at the end of that entry as "subject to" etc.

and, therefore, the alleged requirement of a public purpose

under entry 42 in List III cannot be said to be incorporated

in entry 33 in List III would, therefore, follow that where-

as under entry36 in List II which is to be read with entry

42 in List III by reason of the words "subject to" etc. in

entry 36 in List II the Legislature of a State can only make

a law for compulsory acquisition of property for a public

purpose, Parliament may, under entry 33 in List I which does

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not attract entry 42 in List Iii, make a law for compulsory

acquisition of property without a public purpose. Such a

result could never have been intended by the Constitution.

Besides, turning to entry 42 in List III, I find nothing in

support of Mr. P.R. Das's contention. The words "acquired or

requisitioned for the purposes of the Union or of a State or

for any other public purpose" in that entry are merely words

descriptive of the preceding word "property". The matters

comprised in entry 42 in List III, as a legislative head,

are the principles for the determination of compensation and

the form and manner of giving the compensation for property

which is described as having been acquired or requisi-

tioned for the stated purposes. That entry cannot possibly

be regarded as a legislative head for acquisition of

property and much less is the purpose or province of that

entry to lay down any requirement of a public purpose as a

condition precedent for the

992

acquisition of any property. In my opinion entry 42 in List

III is of no assistance to Mr. P.R. Das for this part of his

argument. Further, the reasons for which I have discarded

his arguments as to the obligation to provide for compensa-

tion being implied in entry 36 in List 11 by itself or read

with entry 42 in List III will also apply to this contention

mutatis mutandis and they need not be restated here. To put

it shortly, the provisions of article31(2) which, as I have

explained, require the existence of a public purpose, will

exclude the implication sought to be read into entry 36 in

List 11 and entry 42 in List III. Secondly, what articles

31(4), 31-A and 31-B exclude is a challenge to the Act on

the ground of contravention of the "provision" of clause

(2). If the "provision" of clause (2) of article 31 as to

the necessity for the existence of a public purpose as a

prerequisite to compulsory acquisition of property is also

to be regarded as implicit in those two legislative entries,

surely articles 31 (4), 31-A and 31-B and in particular

article31(4) which contain the words "nothwithstanding

anything in this Constitution" will protect the Act from

such implied provision, for reasons I have already ex-

plained. Mr. P.R. Das's second main point must accordingly

be rejected as untenable.

Assuming that the necessity for the existence of a

public purpose is not a provision of article 31(2) but is a

provision only of entry 36 in List 11 and/or of entry 42 in

List III and that consequently articles 31 (4), 31-A and

31-B do not preclude the respondents from challenging the

validity of the Act on the ground of the legislative incom-

petency arising out of the absence of a public purpose, the

question still remains whether there is in fact a public

purpose within the meaning of our Constitution to support

the Act. It is to be noted that there is no recital of any

public purpose in the Act itself, but it is conceded that

this circumstance is not fatal to the validity of the Act.

It is, however, urged that this circumstance, nevertheless,

shows that the Legislature had, at the time of the passing

of the Act, no public purpose in its view. It is claimed

993

that, apart from the absence of any such recital, there is

no indication whatever as to the existence of any public

purpose in any of the operative provisions of the Act. It

is not disputed that as a result of this enactment a very

large sum of money now payable by the tenants as and by way

of current rent and arrears of rent to their respective

landlords will be intercepted by the State but it is urged,

on the authority of certain passages in Cooley's Constitu-

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tional Limitations, 8th Edn., Vol. II, p. 1118 (Footnote 1)

and in Professor Willis' Constitutional Law, p. 817, that

the exercise of the power of taxation and not that of the

power of eminent domain is the legitimate means for swelling

the public revenue. That the Act has no public purpose to

support it is sought to be established by saying that in

Bihar the recorded proprietors are about 13,35,919 in number

and that assuming that there are four persons in a family,

nearly five and a half million people will be ruined as a

result of this legislation, although the actual tillers of

the soil will derive no benefit whatever therefrom, for they

will remain where they are and will have to continue, as

heretofore, to pay their rent, instead of to their present

landlords, to the State which, they will find, is no better

than a ruthless machine unsusceptible to any humane feeling.

The contention is that the public purpose must be something

definite, something tangible and something immediate and

that there must be some indication of its existence in the

Act itself and that the State cannot take private property

to-day and say that it will think of the public purpose at

its leisure. This leads me to a consideration of what is a

public purpose within the meaning of our Constitution.

We have been referred to some American authorities for

ascertaining the meaning and implication of "public use", an

expression which obviously is of a more limited import than

the expression "public purpose" used in our Constitution.

Apart from this, a perusal of the text books, e.g., Consti-

tutional Law by Professor Willis, p. 817 et seq., will

immediately make it clear

128

994

that the notion as to what is a "public use" is rapidly

changing in America. Formerly "public use" meant a use by

the public. According to the modern view "public use" means

useful to the public. The passage in Cooley's Constitutional

Limitations, Vol. II, pp. 1139-40 quoted by S.K. Das J. of

the Patna High Court summarises the position thus :--

"No satisfactory definition of the term" public use" has

ever been achieved by the Courts. Two different theories

are presented by the judicial attempts to describe the

subjects to which the expression would apply. One theory of

"public use" limits the application to "employment"--"occu-

pation". A more liberal and more flexible meaning makes it

synonymous with "public advantage", "public benefit". A

little investigation will show that any definition attempted

would exclude some subjects that properly should be included

in, and include some subjects that must be excluded from,

the operation of the words "public use". As might be ex-

pected, the more limited application of the principle ap-

pears in the earlier cases, and the more liberal application

has been rendered necessary by complex conditions due to

recent developments of civilization and the increasing

density of population. In the very nature of the case,

modern conditions and the increasing inter-dependence of the

different human factors in the progressive complexity of a

community make it necessary for the Government to touch upon

and limit individual activities at more points than former-

ly".

To the like effect are the following observations to be

found in Corpus Juris, Vol. XX, article 39, at pp. 552 and

553 under the caption "What is a public use" :--

"No general definition of what degrees of public good

will meet the constitutional requirements for a "public use"

can be framed, as it is in every case a question of public

policy. The meaning of the term is flexible and is not

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confined to what may constitute a public use at any given

time, but in general it may be said to cover

995

a use affecting the public generally, or any number thereof,

as distinguished from particular individuals. Some Courts

have gone so far in the direction of a liberal construction

as to hold that "public use" is synonymous with "public

benefit", "public utility", or "public advantage", and

to authorise the exercise of the power of eminent domain to

promote such public benefit, etc., especially where the

interests involved are of considerable magnitude, and it

is sought to use the power in order that the natural

resources and advantages of a locality may receive the

fullest development in view of the general welfare".

The learned author thereupon proceeds to discuss the

more restricted meaning given to that expression. Mr. P.R.

Das has drawn our attention to the decision of the Judicial

Committee in Hamabai Framjee Petit v. Secretary of State for

India(1). It should be borne in mind that the Judicial

Committee in that case had to consider the meaning of the

words "public purposes" occurring in a lease of the 19th

century. Even in 1914 the Judicial Committee did not

think fit to attempt a precise definition of the expression

"public purpose" and was content to quote with approval the

following passage from the judgment of Batchclor J.:-

"General definitions are, I think, rather to be avoided

where the avoidance is possible, and I make no attempt to

define precisely the extent of the phrase 'public purposes'

in the lease; it is enough to say that, in my opinion, the

phrase, whatever else it may mean, must include a purpose,

that is, an object or aim, in which the general interest of

the community, as opposed 'to the particular interest of

individuals, is directly and vitally concerned".

And it is well that no hard and fast definition was laid

down, for the concept of" public purpose" has been rapidly

changing in all countries of the world. The reference in the

above quotation to "the general

(1) (1915) L.R. 42 I.A. 44.

996

interest of the community", however, clearly indicates that

it is the presence of this element in an object or aim which

transforms such object or aim into a public purpose.

From what I have stated so far it follows that whatever

furthers the general interests of the community as opposed

to the particular interest of the individual must be regard-

ed as a public purpose. With the onward march of civiliza-

tion our notions as to the scope of the general interest of

the community are fast changing and widening with the result

that our Old and narrower notions as to the sanctity of

the private interest of the individual can no longer stem

the forward flowing tide of time and must necessarily give

way to the broader notions of the general interest of the

community. The emphasis is unmistakably shifting from the

individual to the community. This modern trend in the

social and political philosophy is well reflected and given

expression to in our Constitution. Our Constitution, as I

understand it, has not ignored the individual but has endea-

voured to harmonise the individual interest with the para-

mount interest of the community. As I explained in Gopalan's

case (1) and again in Chiranjit Lal's case (supra) our

Constitution protects the freedom of the citizen by article

19(I)(a). to (e) and (g) but empowers the State, even while

those freedoms last, to impose reasonable restrictions on

them in 'the interest of the State or of public order or

morality or of the general public as mentioned in clauses

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(2) to (6). Further, the moment even this regulated freedom

of the individual becomes incompatible with and threatens

the freedom of the community the State is given power by

article 21, to deprive the individual of his life and per-

sonal liberty in accordance with procedure established by

law, subject, of course, to the provisions of article 22.

Likewise, our Constitution gives protection to the right of

private property by article 19 (1) (f) not absolutely but

subject to reasonable restrictions to be imposed by law in

the interest of the general public

(1) [1950] S.C.R. 88.

997

under clause (5) and, what is more important as soon as the

interest of the community so requires, the State may, under

article 31, deprive the owner of his property by authority

of law subject to payment of compensation if the deprivation

is by way of acquisition or requisition of the property by

the State. It is thus quite clear that a fresh outlook

which places the general interest of the community above the

interest of the individual pervades our Constitution.

Indeed, what sounded like idealistic slogans only in the

recent past are now enshrined in the glorious preamble to

our Constitution proclaiming the solemn resolve of the

people of this country to secure to all citizens justice,

social, economic and political, and equality of status and

of opportunity. What were regarded only yesterday, so to

say, as fantastic formulae have now been accepted as direc-

tive principles of State policy prominently set out in Part

IV of the Constitution. The ideal We have set before us in

article 38 is to evolve a State which must constantly strive

to promote the welfare of the people by securing and making

as effectively as it may be a social order in which social,

economic and political justice shall inform all the institu-

tions of the national life. Under article 39 the State is

enjoined to direct its policy towards securing, inter alia,

that the ownership and control of the material resources of

the community are so distributed as to subserve the common

good and that the operation of the economic system does not

result in the concentration of wealth and means of produc-

tion to the common detriment. The words "public purposes"

used in article 23 (2) indicate that the Constitution uses

those words in a very large sense. In the neverending race

the law must keep pace with the realities of the social and

political evolution of the country as reflected in the

Constitution. If, therefore, the State is to give effect to

these avowed purposes of our Constitution we must regard as

a public purpose all that will be calculated to promote the

welfare of the people as envisaged in these directive prin-

ciples of State policy whatever else that expression may

mean. In

998

the light of this new outlook what, I ask, is the purpose of

the State in adopting measures for the acquisition of the

zamindaries and the interests of the intermediaries ? Sure-

ly, it is to subserve the common good by bringing the land,

which feeds and sustains the community and also produces

wealth by its forest, mineral and other resources, under

State ownership or control. This State ownership or control

over land is a necessary preliminary step towards the imple-

mentation of the directive principles of State policy and it

cannot but be a public purpose. It cannot be overlooked that

the directive principles set forth in Part IV of Constitu-

tion are not merely the policy of any particular political

party but are intended to be principles fixed by the Consti-

tution for directing the State policy whatever party may

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come into power. Further, it must always be borne in mind

that the object of the impugned Act is not to authorise the

stray acquisition of a particular propery for a limited and

narrow public purpose but that its purpose is to bring the

bulk of the land producing wealth under State ownership or

control by the abolition of the system of land tenure which

has been found to be archaic and non-conducive to the gener-

al interest of the community. The Act also sets up a Land

Commission to advise the State Government generally with

regard to the agrarian policy which it may from time to

time follow. It is impossible to say that there is no public

purpose to support the Act. This very Bihar Act was before

the Constituent Assembly when it passed article 31 (4) and

again when it took the trouble of amending the Constitution

for saving this very Act. Would the Constituent Assembly

have thought fit to protect these Acts unless it were con-

vinced that this Act was necessary in the general interest

of the community ? I find myself in agreement with Reuben J.

and S.K. Das J. that these circumstances also clearly indi-

cate that the Constituent Assembly regarded this Act as well

supported by a public purpose. To put a narrow construction

on the expression "public purpose" will, to my mind, be to

999

defeat the general purpose of our Constitution and the

particular and immediate purpose of the recent amendments.

We must not read a measure implementing our mid-twentieth

century Constitution through spectacles tinted with early

nineteenth century notions as to the sanctity or inviolabil-

ity of individual rights. I, therefore, agree with the High

Court that the impugned Act was enacted for a public pur-

pose.

Mr. P.R. Das then puts up a narrow argument. Assuming,

says he, that, there is in the Act a general public purpose

for compulsory acquisition of zamindaries and tenures, there

cannot conceivably be any public purpose in support of the

Act in so far as it authorises the taking of the arrears of

rent or the taking away of 4 to 12 1/2 per cent. of the

gross assets on the specious plea that the landlords must

be supposed to spend that percentage of their gross income

on works of benefit to the rayats of the estates and, there-

fore, that part of the Act is beyond the legislative compe-

tence of the Bihar Legislature. I regard this argument as

unsound for more reasons than one. In the first place the

existence of a public purpose being, as I hold, a provision

of article 31 (2), its absence, if any, in relation to the

arrears of rent cannot, by reason of articles 31 (4), 31-A

and 31-B be made a ground of attack against the Act.Second-

ly, it is an entirely wrong approach to pick out an item

out of a scheme of land reforms and say that item is not

supported by a public purpose. One may just as well say

that there is no public purpose in the acquisition of for-

ests or of mines and particularly of undeveloped mines, for

such acquisition has no bearing on a scheme of agrarian

reforms in that it does not improve or affect the conditions

of the tillers of the surface of the soil. This, I appre-

hend, is not the right way of looking at things. The proper

approach is to take the scheme as a whole and than examine

whether the entire scheme of acquisition is for a public

purpose. Thirdly, I do not regard the deduction of 4 to

121/2 per cent. of the gross assets as acquisition or

confiscation

1000

at all, but I regard it, for reasons stated above, as a part

of a principle laid down by the Act for the purpose of

determining the amount of compensation as required by arti-

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cle 31 (2) and entry 42 in List III. Finally, I do not see

why the taking over of the arrears of rent, in the context

of the acquisition of zamindaries, is not for a public

purpose. As I have said, the acquisition of zamindaries and

tenures is a scheme for bringing about agrarian reforms and

ameliorating the conditions of the tenants. The object is,

inter alia, to bring the tillers of the soil in direct

contact with the States so as to free them from the clutches

of rapacious landlords and make them the masters of their

holdings subject to payments of the dues to the State. It

is well-known that the bulk of the tenants are in arrears

with their rents and once the rents fall into arrear the

tenants find it difficult to pay the current rent after

liquidating a part of the arrears so that while they clear

part of the old arrears the current rent falls into arrear.

According to annexure B (2) to-the affidavit of Lakshman

Nidhi affirmed on January 22, 1951, the total amount of

Raiyati rent payable by the various tenants in the different

circles of the Darbhanga Estate alone will exceed rupees

three lacs. It is not quite clear whether all these arrears

are due from the actual rayats in the sense of actual till-

ers of the soil. But leaving out from consideration for the

present purposes the arrears of rent due by the tenure-

holders to their immediate superior tenureholder or to the

zamindar it can safely be taken that the bulk, if not all,

of the actual rayats or tillers of the soil are habitually

and perpetually in arrear with the rent of their hold-

ings on account of financial stringency resulting from

their chronic indebtedness. In these circumstances if the

zamindaries and the tenures only are acquired under the Act

leaving the zamindars and the tenure-holders free to realise

the huge arrears of rent due by the actual cultivating

tenants by legal process it will eventually result in the

sale of the holdings of the actual tenants or, at any rate,

of their right, title and

1001

interest therein and the possible purchase thereof by the

zamindars or tenure-holders themselves at Court sales in

execution of decrees or by private sales forced upon the

tenants. The bulk of the actual tillers of the soil will

then become landless labourers and the entire scheme of land

reforms envisaged in the Act will be rendered wholly nugato-

ry. If the acquisition of the zamindaries and the tenures

is, as I hold, dictated or inspired by the sound public

purpose of ameliorating the economic and political condi-

tions of the actual tenants, the self same public purpose

may well require the acquisition of the arrears of rent so

as to avert the undesirable but inevitable consequences I

have mentioned. The Bihar Legislature obviously thought

that the tenants in arrears will have better treatment and a

more reasonable accommodation, in the matter of the liquida-

tion of the-huge arrears, from the State which will act

uNder the guidance of the Land Commission than from the

expropriated landlords whose sole surviving interest in

their erstwhile tenants will only be to realise as much of

the arrears as they can from the tenants and within the

shortest possible time without any mercy or accommodation,

The same remarks apply to the acquisition of decrees for

arrears of rent. The overriding public purpose of ameliorat-

ing the conditions of the cultivating rayats may well have

induced the Legislature to treat the arrears of rent and the

decrees for rent differently from the other ordinary move-

able properties of the zamindars or tenure-holders, e.g.,

their money in the bank or their jewellery or ornaments

with which the rayats have no concern and to provide for

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the acquisition of the arrears and the decrees. In the

premises, the second main ground of attack levelled by

Mr. P.R. Das against the Act must be rejected. I am,

however, free to confess that if I could agree with Mr.

P.R. Das that these provisions of the impugned Act are bad

for want of a public purpose, I am not at all sure that I

would not have found it extremely difficult to resist his

further argument that the entire Act was bad, for it might

1002

not have been very easy to presume that if the Bihar Legis-

lature had known that these provisions of the Act might be

held bad it would nevertheless have passed the other parts

of the Act in that truncated form. The acquisition of the

arrears of rent appears to me to be an integral part of the

scheme and inextricably interwoven with it. Indeed, it may

well have been that the scheme of agrarian reform was not

considered by the Bihar Legislature to be at all capable of

easy implementation by the State without the acquisition of

the arrears of rent. As, however, I have taken the view that

no part of the Act is bad for want of a public purpose, I

need not pursue any further the question of the severability

of the Act or to refer to the judicial decisions relied on

by learned counsel on both sides.

Ground C: Mr. P.R. Das's third point is that the Act

constitutes a fraud on the Constitution, that is to say,

while it purports to be in conformity with the Constitution,

it, in effect, constitutes a defiance of it. The Act,

according to him, pretends to comply with the constitutional

requirements in that it sets out to lay down certain princi-

ples on which compensation is to be determined and the form

and the manner in which such compensation is to be given

but, in effect, makes out a scheme for non-payment of com-

pensation. The Act, he urges, purports to pay back fifty per

cent. of the arrears of rent as compensation but in reality

confiscates the other fifty per cent. without any compensa-

tion. Further, under the guise of deducting 4 to 121 1/2

per cent of the gross income the State is in reality appro-

priating a large sum under this head. All this, he con-

cludes, is nothing but pretence or a mere shift and contri-

vance for confiscating private property. The argument,

when properly understood, will be found to resolve itself

into an attack on the legislative competency of the Bihar

Legislature to pass this Act. On ultimate analysis it

amounts to nothing more than saying that while pretending to

give compensation the Act does not really give it. It is

the absence of a provision

1003

for just and adequate compensation that makes the Act

bad, because, according to Mr. P.R.Das, the legislative

power under entry 36 in List II and entry 42 in List III

requires the making of such a provision. The failure to

comply with this constitutional condition for the exercise

of legislative power may be overt or it may be covert. When

it is overt, we say the law is obviously bad for non-compli-

ance with the requirements of the Constitution, that is to

say, the law is ultra vires. When, however, the noncompli-

ance is covert, we say that it is a fraud on the Constitu-

tion, the fraud complained of being that the Legislature

pretends to act within its power while in fact it is not so

doing. Therefore, the charge of fraud on the Constitution

is, on ultimate analysis, nothing but a picturesque and

epigrammatic way of expressing the idea of non-compliance

with the terms of the Constitution. Take the case of the

acquisition of the arrears of rent. It is said that the

provision in the Act for the acquisition of arrears of rent

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is a fraud on the legislative power given by the Constitu-

tion. I ask myself as to why must it be characterised as a

fraud? I find nothing in the Constitution which says that

the arrears of rent must not be acquired and. therefore,

there is no necessity for any covert attempt to do what is

not prohibited. I have already explained that in a scheme of

land reforms such as is envisaged in the Act the acquisition

of the arrears of rent may properly accompany the acquisi-

tion of the zamindaries and the tenures. Where. then, does

this theory of fraud come in ? The answer must eventually

be that a moiety of arrears are taken away without compensa-

tion. Again, take the case of the acquisition of non-in-

come-yielding properties. Why, I ask, is it called a fraud

on the Constitution to take such property ? Does the Consti-

tution prohibit the acquisition of such property ? Obvious-

ly it does not. Where, then, is the fraud? The answer that

comes to my mind is that it is fraud because the Act pro-

vides for compensation only on the basis of income and,

therefore, properties which are at present non-income-

yielding but which have very rich

1004

potentialities are acquired without any compensation at all.

Similar answer becomes obvious in connection with the

deduction of 4 to 12 1/2 per cent. of the gross assets under

the head "Works of Benefit to the Rayats". On ultimate

analysis, therefore, the Act is really attacked on the

ground that it fails to do what is required by the Consti-

tution to do, namely, to provide for compensation for the

acquisition of the properties and is, therefore, ultra

rites. This, to my mind, is the same argument as to the

absence of just compensation in a different form and ex-

pressed in a picturesque and attractive language. I have

already dealt with the question of absence of a provision

for just compensation while dealing with Mr. P.R. Das's

first point and I repeat that the obligation to provide for

compensation is not implicit in entry 36 in List II by

itself or read with entry 42 in List III but is to be found

only in article 31 (2), that under entry 42 in List III the

Act has laid down a principle for determining compensation

and, therefore, there can be no question as to legislative

incompetency for any alleged non-compliance with any sup-

posed requirement said to be implicit in these entries. If

the principles so laid down in the Act do not in any rare

case produce any compensation or do not produce adequate

compensation in some cases, such absence of compensation may

be a contravention of article 31 (2) but in view of arti-

cles 31 (4), 31-A and 31-B and particularly due to the words

"notwithstanding anything in this Constitution" occurring in

article 31 (4) it cannot be made a ground of attack on the

Act, even though such ground is formulated in a different

but attractive language, namely, as a fraud on the Constitu-

tion. Accordingly, this point must also be rejected. I,

however, repeat that ii I took a different view I would

still have the same difficulty as to the inseverability of

the different provisions of the Act as I have hereinbe-

fore indicated.

Re. Ground D: Mr. P.R. Das's fourth point is that the

Act is unenforceable in that section 32 (2)

1005

provides for compensation in forty equal instalments without

specifying the period of interval between the instalments.

In course of arguments, however, Mr. P. R. Das has thought

fit not to press this point and accordingly it does not

require any refutation.

Re. Ground E: Mr. P.R. Das's last main point is that the

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Act has delegated essential legislative functions to the

Executive Government and is, therefore, invalid. Article

31 (2) requires that the law authorising the taking posses-

sion or the acquisition of land for public purpose should

provide for compensation for the property taken possession

of or acquired and should either fix the amount or specify

the principles on which, and the manner in which the compen-

sation is to be determined and given. Entry 42 in List III

talks of principles on which compensation is to be deter-

mined and the form and the manner in which such compensation

is to be given. The argument is that the Constitution has

left to Parliament or the State Legislature the duty of

specifying the principles on which, and the form and manner

in which the compensation is to be determined and given but

the Bihar Legislature by sections (22)of the Act has simply

provided that the amount of compensation shall be paid in

cash or in bonds or partly in cash and partly in bonds and

that the bonds shall be either negotiable or non-negotiable

and non-transferable and be payable in forty equal instal-

ments and has not laid down any decisive provision but has

left the matter to the State Government to decide. It has,

therefore, failed to discharge the duty which was expressly

left to its knowledge, wisdom and patriotism. Mr. P.R. Das

complains that the Legislature has shirked its responsibili-

ty and delegated this essential legislative power to the

State Government to be exercised under rules made by itself

under its rulemaking power under section 43 (2) (p). The

question of the propriety and legality of the delegation of

legislative power has recently been considered by this Court

in In re The Delhi Laws Act, 1912 etc.(1). If I

(1) [1951] S.C.R. 747.

1006

were to deal with this matter according to my own notions, I

would have dismissed this argument in limine, for here the

Legislature has not abdicated or effaced itself in the sense

I have explained in my opinion in that case. When I look at

the matter on the basis of the principles laid down in that

case by the late Chief Justice and my learned brothers to

which Mr. P.R. Das has referred, I have to overrule his

contention all the same. Here section 32 clearly indicates

that the Legislature has applied its mind to the problem and

it has laid down the principle that the compensation may be

paid in cash or in bonds or partly in cash and partly in

bonds and that ii a payment is to be made either wholly or

partly in bonds, these bonds may be either negotiable or

non-negotiable and non-transferable. Having laid down the

principle, the Legislature has, by a rule made under section

43 (3) (p), left it to the Executive to determine the pro-

portion in which the compensation shall be payable in

cash and-in bonds and the manner of such payment of compen-

sation. These details, it will be observed, depend on

special circumstances, e.g., the extent of the ability, of

Government to pay, the extent of the necessities of the

proprietors and many other considerations, with which the

Executive Government would be more familiar than the Legis-

lature itself. I am unable to accept Mr. P.R. Das's conten-

tion that this amounts to a delegation of an essential

legislative function within the meaning of the decision of

my learned brothers.

Mr. Sanjiva Chowdhuri has urged that the Land Acquisi-

tion Act, 1894 being continued by the Constitution and that

Act which is a Central Act having been extended by notifica-

tion in 1899 to Ramgarh State for which he appears, the

Central Act must apply to Ramgarh until the notification is

withdrawn and the impugned Act cannot apply for determining

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the compensation, for the field is already occupied by the

Central Act of 1894. It may, however, be noticed that the

provision for compensation in that Act

1007

applies only to lands acquired under that Act. It has no

application to lands acquired under other statutes and,

therefore, the provision for compensation of the Land Acqui-

sition Act cannot apply to acquisitions under the Bihar Act

and, therefore,the doctrine of occupied field can have no

application. In my opinion there is no substance in this

contention.

For reasons stated above, I allow these appeals.

CHANDRASEKHARA AIYAR J.--The facts which have given rise

to these cases have been fully set out in the judgment just

now delivered by my learned brother Mahajan J. and need not

be repeated. The conclusions reached by him and Mukherjea

J. have my concurrence. Ordinarily, I would have stopped

with the expression of my agreement, but having regard to

the importance of the question argued and the stakes in-

volved, I desire to add a few words of my own on some of the

points discussed.

Article 31 (1) of our Constitution provides "No person

shall be deprived of his property save by authority of law".

There are three modes of deprivation--(a) destruction,(b)

acquisition and (c) requisition. Destruction may take place

in the interests of public health or the prevention of

danger to life or property but with this we are not now

concerned. In the case of "acquisition", there is an element

of permanency, and in the case of "requisition" there is an

element of temporariness. Except for this distinction, both

modes stand on the same footing, as regards the rights of

the State vis-a-vis the rights of the private citizens.

Under the Constitution, when property is requisitioned

or acquired, it may be for a Union purpose or a State pur-

pose, or for any other public purpose. Entry 33 in List I

(Union List) of the Seventh Schedule to the Constitution

speaks of acquisition or requisitioning of property for the

purposes of the Union. When we come to entry 42 of List 111

(Concurrent List), we find these words: "Principles on which

compensation for property acquired or requisitioned for the

purposes

1008

of the Union or of a State or for any other public purpose

is to be determined, and the form and the manner in which

such compensation is to be given."

From very early times, law has recognized the right of

Government compulsorily to acquire private properties of

individuals for a public purpose and this has come to be

known as the law of eminent domain. But it is a principle of

universal law that the acquisition can only be on payment of

just compensation. Story on the Constitution, Vol. 2, page

534, paragraph 1790, has the following passage in discussing

the concluding clause of the Fifth Amendment of the American

Constitution:

"The concluding clause is that private property shall

not be taken for public use without just compensation. This

is an affirmance of a great doctrine established by the

common law for the protection of private property. It is

founded in natural equity, and is laid down by jurists as a

principle of universal law. Indeed, in a free government,

almost all other rights would become utterly worthless,

if the Government possessed an uncontrollable power over the

private fortune of every citizen. One of the fundamental

objects of every good government must be the due administra-

tion of justice; and how vain it would be to speak of such

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an administration, when all property is subject to the will

or caprice of the legislature and the rulers."

The payment of compensation is an essential element of

the valid exercise of the power to take. In the leading case

of Attorney-General v. De Keyser's Royal Hotel, Ltd (1) Lord

Dunedin spoke of the payment of compensation as a necessary

concomitant to the taking of property. Bowen L.J. said in

London and North Western Ry. Co. v. Evans (2):'

"The Legislature cannot fairly be supposed to intend. in

the absence of clear words showing such intention, that one

man's property shall be confiscated for the benefit of

others, or of the public. without any

(1) [1920] A.C.p. 508. (2) [1893] I Ch. pp. 16 & 28.

1009

compensation being provided for him in respect of what is

taken compulsorily from him. Parliament in its omnipotence

can, of course. override or disregard this ordinary princi-

ple ...... if it sees fit to do so, but it is not likely

that it will be found disregarding it, without plain expres-

sions of such a purpose ."

This principle is embodied in article 31(2)of our Con-

stitution in these terms :-

No property, movable or immovable, including any inter-

est in, or in any company owning, any commercial or indus-

trial undertaking, shall be taken possession of 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."

We shall not here trouble ourselves with sub-clauses (3)

and (4) of the article and with articles 31-A and 31-B which

were introduced by way of amendment under the Constitution

First Amendment Act, 1951, dated 18-6-1951. They will be

considered later.

The argument of Shri P.R. Das that the payment of com-

pensation is a concomitant obligation to the compulsory

acquisition of properties by the State can be accepted as

sound; but when he went further and urged that it was found

in an implicit form in entry 42 of the Concurrent List, he

was by no means on sure ground. The entries give us the

bare heads of legislation. For ascertaining the scope or

extent or ambit of the legislation and the rights and the

duties created thereby, we must examine the legislation

itself or must have resort to general and well-recognized

principles of law of jurisprudence. No resort can be had to

anything implicit or hidden when the statute makes an ex-

press provision on the same subject. As just compensation

has to be paid when property is acquired for a public pur-

pose, the legislation has to

1010

formulate the principles for determining the compensation

and the form and the manner in which it is to be given.

Entry 42 means nothing more than a power conferred on the

Legislature for achieving this end. The power is conferred

but there is no duty cast to provide for compensation. For

any statement that the payment of compensation is a primary

condition for acquisition of property for a public purpose,

we have to look at the provisions of the Constitution itself

and this we find in article 31 (2)as stated already. Mr.

Das was obliged to take up the untenable position that entry

42 of its own force implies an obligation to pay compensa-

tion, as he couldnot otherwise jump over the hurdles created

in his way by sub-sections (3) and (4) of article 31 and the

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new articles 31-A and 31-B.

The learned Attorney-General contended in dealing with

entry 42 that legislation under entry 42 can also lay down

principles that would lead to the non-payment of any com-

pensation and he cited Atiqa Begurn's case(1) as an

authority in his support. This contention appears to me to

be as unsound as Mr. Das's argument that the obligation to

pay or give compensation wasimplicit in the said entry. As

there can be no acquisition without compensation, the terms

of entry 42enable the legislature to lay down the principles

and provide further for the form and manner of payment. If

the principles are so formulated as to result in non-payment

altogether, then the legislature would be evading the law

not only covertly but flagrantly. There is nothing in Atiqa

Begum's case that supports the argument. It was there held

that under the head "payment of rent" there could be legis-

lation providing for remission of rent. Payment of rent is

not a legal obligation of every tenureand the legislature

can enact that under certain circumstances or conditions

there shall be remission of rent. But as regards compensa-

tion for State acquisition, its payment is a primary requi-

site universally recognized by law. This is the essential

distinction to remember

(1) [1940] F.C.R, 110.

1011

when we seek to apply the case quoted. The last words in

entry 42 "form and the manner in which such compensation is

to be given" clearly mean that the principles determining

compensation must lead to the giving or payment of some

compensation. To negate compensation altogether by the

enunciation of principles leading to such a result would be

to contradict the very terms of the entry and such a meaning

could not be attributed to the framers of the Lists.

This, however, does not carry Shri P.R. Das anywhere

near success. Article 31(4) is the first stumbling block in

his way. It provides :--

"If any Bill pending at the commencement of this Consti-

tution in the Legislature of a State has, after it has been

passed by such Legislature, been reserved for ,.he consider-

ation of the President and has received his assent, then,

notwithstanding anything in this Constitution, the law so

assented to shall not be called in question in any court on

the ground that it contravenes the provisions of clause

(2)."

The Bill which subsequently became "The Bihar Land

Reforms Act, 1950" was pending at the commencement of the

Constitution in the legislature of the State, and after it

was passed by the legislature, it was reserved for the

consideration of the President and received his assent.

Therefore the bar that it shall not be called in question in

any court on the ground that it contravenes the provisions

of clause (2) becomes applicable. True, compensation has to

be provided for, by reason of sub-clause (2) of the article,

but sub-clause (4) postulates an exception and the right to

challenge the validity of the Act on the ground that no

compensation has been provided for or that the compensation

is really illusory or inadequate is taken away. As if this

were not enough, two more stiles have been erected in his

way and they are the new articles 31-A and 31-B brought in

by way of amendment. Article 31-A, sub-clause (1) is in

these terms :--

"Notwithstanding anything in the foregoing provisions.

of this Part, no law providing for the

1012

acquisition by the State of any estate or of any rights

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therein or for the extinguishment or modification of any

such rights shall be deemed to be void on the ground that it

is inconsistent with, or takes away or abridges any of the

rights conferred by any provisions of this Part:

Provided that where such law is a law made by the Legis-

lature of a State, the provisions of this article shall not

apply thereto unless such law, having been reserved for the

consideration of the President, has received his assent.

Article 31-B provides :

"Validation of certain Acts and Regulations :--Without

prejudice to the generality of the provisions contained in

article 31-A none of the Acts and Regulations specified in

the Ninth Schedule nor any of the provisions thereof shall

be deemed to be void, or even to have become void, on the

ground that such Act, Regulation or provision is inconsist-

ent with, or takes away or abridges any of the rights con-

ferred by, any provisions of this Part, and notwithstanding

any judgment, decree or order of any court or tribunal to

the contrary each of the said Acts and Regulations shall,

subject to the power of any competent Legislature to repeal

or amend it, continue in force."

When we look at the Ninth Schedule to the Amending Act,

the very first item mentioned is "The Bihar Land Reforms

Act, 1950."

In the face of these almost insuperable obstacles, Shri P.R.

Das candidly admitted that he could urge nothing as regards

the adequacy or the illusory nature of the compensation

provided in the Act, if he was not able to convince the

Court on his main point that he could challenge the offend-

ing Act on grounds other than those mentioned in Part III of

the Constitution, and that there was something in entries

No. 36 of the State List and No. 42 of the Concurrent List

read together which imposed on the State Legislature an

obligation to provide lot the payment of just or proper

compensation and that the non-observance of this

1013

obligation entitles him to challenge the validity of the Act

as unconstitutional.

The acquisition of property can only be for a public

purpose. Under the Land Acquisition Act, I of 1894, a

declaration by the Government that land is needed for a

public purpose shall be conclusive evidence that the land is

so needed and Courts cannot go into the question whether the

public purpose has been made out or not. There is no such

provision in any article of the Constitution with which we

have to deal. It is true that sub-clause (2) of article 31

speaks of property being acquired for public purposes. The

bar created by sub-clause (4) of article 31 relates to the

contravention of the provisions of clause (2). The provi-

sion of clause (2) is only as regards compensation as can be

gathered from its latter part:-

"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."

It is assumed, rightly, that the existence of a public

purpose is part and parcel of the law and is inherent in it.

The existence of a public purpose is not a provision or

condition imposed by article 31 (2) as a limitation on the

exercise of the power of acquisition. The condition pre-

scribed is only as regards compensation. Article 31 (4)

debars the challenge of the constitutionality of an Act on

this ground but no other. Whether there is any public pur-

pose at all, or whether the purpose stated is such a purpose

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is open, in my opinion, to judicial scrutiny or review.

When the legislature declares that there is a public

purpose behind the legislation, we have of course to respect

its words. The object of the Act in question is to extin-

guish the interests of intermediaries like zamindars, pro-

prietors, and estate and tenure-holders etc., and to bring

the actual cultivators into direct relations with the State

Government. To achieve this end, several provisions have

been enacted for the

1014

transfer and the vesting of such interests in the State as

regards various items of properties. It is impossible to

deny that the Act is inspired and dominated by a public

purpose, but the question still remains whether the taking

over of particular items can be said to be for a public

purpose. It is in this connection that the two items of

"arrears of rent" and "cost of works of benefit to the

raiyats" dealt with in section 4, clause (b), and section

23, clause (f) respectively of the Act, have to be consid-

ered.

The taking over of "arrears of rent" does not seem to

have even a remote connection with any question of land

reform. It stands on no better footing than if the Act

sought to take over the cash on hand or in the banks of the

zamindars, proprietors or tenureholders. It is only an

accident that the rents in question were not realised before

the passing of the Act. Whether realised or not, they are

his moneys due and payable to him by the ryots. The conse-

quences of vesting of estates must have some relation to the

tenures themselves and have some connection, remote though

it may be, with the agrarian reforms undertaken or contem-

plated. Supposing that we have a legislation stating that as

it is necessary to eliminate rent collectors and farmers of

revenue and to apportion and distribute land on an equitable

basis amongst the tillers of the land and confer on them

rights of permanent occupancy and also to bring them direct-

ly into contact with the State, all moneys which the pro-

prietors had collected as and by way of rent from their

estates for three years prior to the commencement of the

Act, shall vest in and be payable to the State, could it be

said by any stretch of reason that any public purpose had

been established for the taking of the moneys ? Arrears of

rent stand on no better footing. Any public purpose in

taking them over is conspicuous by its absence. It is

fairly obvious that resort was had to the arrears either for

augmenting the financial resources of the State or for

paying compensation to the smaller proprietors out of this

particular item of acquisition. Property of individuals

1015

cannot be appropriated by the State under the power of

eminent domain for the mere purpose of adding to its reve-

nues; taxation is the recognised mode to secure this end.

If the latter was the real object, it must be observed that

to take one man's property compulsorily for giving it away

to another in discharge of Government's obligations is not a

legitimate and permissible exercise of the power of acquisi-

tion.

Sub-clause (1) of section 21 no doubt provides that 50

per cent. of the arrears of rents shall be added to the

amount of compensation. This means one of two things (a)

either the other 50% is taken without payment of any compen-

sation, which is confiscation virtually or (b) 50 per cent.

is taken as the consolidated value of the arrears of

rent--a lump sum payment for the acquisition of choses in

action or actionable claims. Taken either way, it is diffi-

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cult to see wherein the public purpose consists. Whether

moneys could be compulsorily acquired at all by a State is a

moot question. Willis says in his Constitutional Law at page

816 :--"While, as stated above, any and all property is in

general subject to the exercise of the power of eminent

domain, there are certain rather unusual forms of private

property which cannot thus be taken. These are corpses,

money, choses in action, property used by the government in

its governmental capacity, property to be used for a mere

substituted ownership unless such substituted ownership is a

more necessary use, and perhaps trust property dedicated to

a State, mortgage liens, and suits to quiet title." under

the heading "what property is subject to the right", Cooley

observes in Vol. II of his book on Constitutional Limita-

tions, at page 1117 :"From this statement, however, must be

excepted money, or that which in ordinary use passes as

such, and which the Government may reach by taxation, and

also rights in action, which can only be available when

made to produce money; neither of which can it be needful to

take under this power." In the footnote he points out :--

1016

"Taking money under the right of eminent domain, when

it must be compensated in money afterwards, could be nothing

more or less than a forced loan, only to be justified as a

last resort in a time of extreme peril, where neither the

credit of the government nor the power of taxation could be

made available."

Nicols in his work on "Eminent Domain" does not disagree

with this view; on the other hand, he says at page 100 of

Vol. I, paragraph 2. 1 (3) :--

"The question has arisen whether money can be taken by

eminent domain and it has been held or intimated, at least

in so far as a state or. a private corporation is concerned,

that it is not subject to such taking. The objection is

not based on an implied inherent limitation upon the power

of government, but upon the difficulty of effecting a

taking of money that would be of any service to the public

without violating the Constitution. The use for which it

was needed might well be public. but, as compensation must

be paid in money, and, if not in advance, at least with such

expedition as conveniently may be had, the seizure of money

without compensation, or with an offer of payment in notes,

bonds or merchandise,--in other words, a forced sale or

loan--however it might be justified by dire necessity would

not be a constitutional exercise of the power of eminent

domain."

The learned Attorney-General sought to justify this

acquisition on the ground that it was a compulsory taking of

choses in action. Even so, they stand on the same footing

as money, of less value no doubt than if they were coin or

currency notes. It seems that choses in action too cannot

be so acquired; reference has been made already to Cooley's

observations.

The two cases Long Island Water Supply Company v. City

of Brooklyn (1) and City of Cincinnati v.' Louisville &

Nashville Railroad Company(2) do not support the contrary

view. In the former ease,

(1) 166 U.S. 685 ; 41 I.. Ed. pp. 1, 165.

(2) 223 U.S. 389; 56 L. Ed. 481.

1017

a Water Supply Company was under a contract to supply water

to the town of New Lots (which subsequently became merged in

the city of Brooklyn) in consideration the town paying

for hydrants to be furnished and supplied as provided in the

contract. The contract was for a term of 25 years. When the

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merger took place, the city of Brooklyn was given power to

purchase or to condemn the property of the company within 2

years but it did neither. In 1892, the legislature passed

another Act authorising the City of Brooklyn to condemn the

property of the company, provided the necessary proceedings

were commenced within one year after the passing of the Act.

The procedure for the acquisition was prescribed in the Act

itself. The power was exercised by the city and the compen-

sation payable was determined by the Commissioners at a

particular figure. The company objected to the acquisition

on the strength of article 1, Paragraph 10, of the U.S.

Constitution which forbids any State to pass a law impair-

ing the obligation of contracts and was not "due process of

law" as required' by the 14th Amendment. On error, the

Supreme Court confirmed the condemnation and rejected the

argument that there was any impairment of the contract. Mr.

Justice Brewer points out that the contract is a mere inci-

dent to the tangible property and that it is the latter

which, being fitted for public uses, is condemned. The

contract is not the thing which is sought to be condemned

and its impairment, if impairment there be, is a mere conse-

quence of the appropriation of the tangible property. In

the present cases, it is untenable to state that the taking

over of arrears of rent is a natural consequence of the

acquisition of the estates.

In the latter case, a railroad company filed a suit to

condemn a right of way for an elevated railroad track across

the public landing at Cincinnati. The city objected on the

ground that the public landing had become property dedicated

to the public under an earlier contract and to allow the

condemnation under a

131

1018

statute of Ohio was an impairment of the contract, forbidden

by the 10th section of the first article of the Constitu-

tion of the United States. The court through Mr. Justice

Lurton held: The constitutional inhibition upon any state

law impairing the obligation of contracts is not a limita-

tion upon the power of eminent domain. The obligation of a

contract is not impaired when it is appropriated to a public

use and compensation made therefor. Such an exertion of

power neither challenges its validity nor impairs its obli-

gation. Both are recognised for it is appropriated as an

existing enforceable contract. It is a taking, not an im-

pairment of its obligation. If compensation be made, no

constitutional right is violated."

It would thus be evident that they were not cases of the

compulsory acquisition of choses in action. Choses in action

unrelated to any tangible property can be useful for a

public purpose only when converted into money. Arrears of

money are particularly so. When it is said that money and

choses in action are exempt from compulsory acquisition, it

is not on the ground that they are movable property but on

the ground that generally speaking there could be no public

purpose in their acquisition.

The provisions in section 23, sub-clause (f) that 4 to

12 1/2 per cent. of the gross assets can be deducted from

the amount as representing "cost of works of benefit to the

raiyats". This is an obvious device to reduce the gross

assets and bring it down to as low a level as possible. The

Act does not say that this charge represents the expendi-

ture on works of benefit, or improvements which the zamin-

dars and proprietors were under any legal obligation to

carry out and which they failed to discharge. Nor are we

told anything about the future destination of this deducted

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sum. It is an arbitrary figure which the legislature has

said must be deducted from the gross assets. The deduction

is a mere contrivance to reduce the compensation and it is a

colourable or fraudulent exercise of legislative power to

subtract a fanciful sum from the calculation of gross

assets.

1019

Stripped of their veils or vestments, the provisions in

the act about "arrears of rent" and the "cost of works of

benefit" amount to naked confiscation. Where the legislative

action is arbitrary in the sense that it has no reasonable

relation to the purpose in view, there is a transgression by

the legislature of the limits of its power. Under. the

guise of legislating for acquisition, the legislature cannot

enable the State to perpetrate confiscation; and if it does

so, the Act to that extent has to be declared unconstitu-

tional and void. If the part that is void is so inextrica-

bly interwoven into the texture of the rest, the whole Act

has to be struck down. Such, however, is not the case here.

It is gratifying to note that the Madhya Pradesh Aboli-

tion of Proprietory Rights Act of 1950 and the Uttar Pradesh

Zamindari Abolition and Land Reforms Act of 1950 which are

also in question are free from this blemish of reaching at

arrears of rent due for any period anterior to the date of

vesting.

Appeals allowed: Petition No. 612 dismissed.

Agent for the appellant (State of Bihar): P. A Mehta.

Agent for the respondents in Cases Nos. 339,319,327,330,332

of 1951: J.N.Shroff. "

" in Cases Nos. 309, 326, 328, 336,

337,344 of 1951 Ganpat Rai

" " in Cases Nos. 310, 311, and 329 of

of 1951 : R.C. Prasad.

" " in Case No. 315 of 1951 :

P.K.Chattargy

" " in Cases Nos. 307,313,320,321,

and 322 of 1951: Sukumar

Ghose.

" " in Case No. 331 of 1951: S.P.Varma

Agent for the petitioner in Petition No. 612 of 1951:

Ganpat Rai.

Agent for respondent No. 2 in Petition No. 612 of 1951:

P.A. Mehta.

1020