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S.C.R. SUPREME COURT REPORTS 889

the learned English Judges in the first tea case would

not

be without relevance on the question of sentence

in many

cases of this kind. There can, I think, be no

doubt that businessmen who are not lawyers might

well

be misled into thinking that the Ordinance and

the Act did not intend to keep the

Order of 1944 alive

because the Order related to certain specified spices

while the Ordinance and the Act changed the .nomen-

clature and limited themsleves to "foodstuffs", a term

which, on a narrow

view, would not include con-

diments and spices. However, these observations are

not relevant here because we are not asked to restore

either the conviction or

the sentence. In view of that,

there will be no further order and the acquittal

will be left

as it stands.

·. \ Order accordingly.

Agent for the appellant: P. A. Mehta.

Agent for the respondent : M. S. K. Sastri.

THE STATE OF BIHAR

fl.

'

MAHARAJADHIRAJA SIR KAMESHW AR SINGH

OF DARBHANGA AND OTHERS

(CASES Nos. 305 TO 348 OF 1951 AND PETITION No. 612 OF 1951)

[PATANJALI SASTRI c. J., MEHR CHAND MAHAJAN,

MuKHERJEA, DAs and CHANDRASEKHARA AIYAR JJ.]

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

zamindaries-Validity-Necessity

to

provide for compensation and

of public purpose-Jurisdiction of Court to enquire into validity­

Delegation of legislative powers-Fraud on the Constitution-Consti­

tution 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 Ill, entry 42-Construction-Spirit of the Constitution­

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

meanings of-Convent of merger-Compulsory acquisition of

private property of Ruler-Acquisition of

arrears of rent

payinl

50%-Deduction for cost of works-Legality.

115

1952

The State of

Bombay

v.

Virkumar

Gulabchand

Shah.

Bose /.

1952

May 2, 5.

•

1952

-

The State of

Bihar

v.

Maharaia­

dhira;aSir

Kameshwar

Singh

of Darbhanga

and Others.

890 SUPREME COURT REPORTS [1952]

Held per Curiah (MAHAJAN, MuKHERJEA and CHANDRA·

SEKHARA AtYAR JJ.)-Thc Bihar Land Reforms Act, XXX of

1950, is not unconstitutional or void except with regard to the

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

s. 4(b) and s. 23(f) are unconstitutional. Per PATANJALI

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. J., MAHAJAN, MuKHERJEA, D1i.s

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

Act, XXX of 1950, is not a law in respect of a matter mention­

ed 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

acquired 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 resixct of acquisition of property

on the ground that it does not provide for payment of compen­

sation 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 the Constitution is barred by art. 31(4),

art. 31-A and art. 31-B of the Constitution. Per DAs /.-

Assuining that the obligation to pay compensation is also

implicit in entry 36 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. 31(

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 compeinsation shall be payable in cash and in bonds and

·the manner of payment pf such compensation" does not involve

any delegation of legislative powers especially

as the legislature

has itself provided in s. 32(2) that the compensation 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

Lc;gislative Lists arc merely of an enabl-

ing character. The power conferred thereunder on the legisla-

tures is not coupled with any duty on the legislature to exercise

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'.S.C.R. SUPREME COURT REPORTS 891

:such power and the principle laid down in /ulius v. Bishop of

Oxford [5 A.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 essential 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 be­

ing questioned on the ground that the acquisition was not for a

public purpose. In any

case the impugned Act is supported by a

public purpose.

Per MAHAJAN and CHANDRASEKHARA A1YAR JJ.-The scope

-0f art. 31(4) is limited to the express provisions of art. 31(2)

and though the courts cannot examine the extent or adequacy

-0f 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

consider•

ing 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 acquisition 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

there-

fore 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

conse-

quently thei 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

exchanm under the guise of acting under entry 4 2 the legis-

lature has in truth and substance evaded and nullified its provi-

sions altogether and sec. 4 clause (b) is therefore unconstitutional

"'' and void.

•

PATANJALI SAsTRI C. J.-Whatever may be the pc>1t10n 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 un-

constitutional.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and

Others.

1952

The Sta~ of

Bihar

v.

Maharaja­

dhirajaSir

Kameshwar

Singh

of Darbhanga

and Others.

892 SUPREME COURT REPORTS [1952J

Per MAHAJAN, MuKHERJEA and CHANDRASEKHAllA AIYAR JJ.

(PATANJALI SAsTRI C. J. and DAs J. dissenting).-&xtion 23 (b)

of the Act which provides for a deduction on a percentage basis

out

of the gross asserts 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 legislation, 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

arc beneficial to

the raiyats and the cost of such works is therefore a perfectly

legitimate deduction in computing the net assets of the estate

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

compensation is not a justiciable issue in the case of the

im~

pugned statute, having regard to arts. 31 (4), 31-A and 31-B, it

is not open to the Court to enquire whether a reduction which

results in reducing the compensation is unwarranted and there·

fore a fraud on the Constitution.

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

construed according to the spirit of the times in which the parti-

cular legislation is enacted and so construed, acquisition of estates

for the purpose of preventing the concentration of huge blocks of

land in the hands of a

few individuals and to do away with

intermediaries

is for a public purpose.

-

Per DAs J.-No hard and fast definition can be laid down

as to what is a "public purpose" as tho 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 particular interest of the

individual must

be regarded as a pnblic purpose.

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,

246 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.

'r

•

The facts that gave rise to these appeals and peti-;.

tion arc stated in the judgment.

-

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•

J

S.C.R. SUPREME COURT REPORTS 893

M. C. Settdvad (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 336

of 1951.

Urukramdas Chakravarty for the respondents in

Cases Nos. 326, 337 and 344 of 1951.

Raghosaran Ltd for the respondents in Cases Nos.

310, 311 and 329 of 1951.

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

315 of 1951.

S. Mustafid and /agadish Chandra Sinha for the

respondents 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 SAsTR1 C. J.-*These appeals and

peti-

tions 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 Justice, in his judgment, dealt with the above

· Cases and Petition 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,

Ali®ated Lands) Act, 1950) and Cases Nos. 283

to 295 of 1951 (relating to the Uttar Pradesh Zamindari Aboli-

tion and Land Reforms Act, 1950).

1952

The State of

Bihar

v.

Maharaia­

dhiraja Sir

Kameshwar

Singh

of Darbhangt;

and Others.

1952

The State of

Bihar

v.

Maharaja­

Jhiraja

Sir

Kameshwar

Singh

of Darbhanga

and Others.

Patanjali

Sastri C. /.

894 SUPREME COURT REPORTS

The Madhya Pradesh Abolition of

Rights (Estates, Mahals, Alienated Lands)

(No. I

of 1951), and

[1952]

Proprietary

Act,

1950

The Uttar Pradesh Zamindari Abolition and Land

Reforms

Act,

1950 (U. P. Act No. I 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

speak-

ing, is to abolish zamindaries and other proprietary

estates and tenures in the three States aforesaid, so as

to eliminate the intermediaries by means of compul-

sory 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 nrious grounds,

the Bihar Act

was declared unconstitutional and void

on the ground that it contravened article 14 of the

Constitution, the other grounds of attack being

reject-

ed 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 determination of the same

issues. The common

question which

arises for consideration in all these

appeals and petitions

is whether the three

State Legis-

latures, whch respetively passed the three impugned

statutes, were constitutiona\.ly 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, they would have requir-

ed 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

Parlia- .._.

ment during the pendency of these proceedings.

That Act by inserting the new articles 31-A and

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S.C.R. SUPREME COURT REPORTS 893

31-B purported to protect, generally, all laws provid-

ing for the acquisition of estates or

interes.ts therein,

and

specifically, certain statutes, including the three

impugned

Acts, from attacks based on article 13 read

with other relevant articles of

Part III of the Consti-

tution. And the operation

of these articles

was made

retrospective

by providing, in section 4 of the Amend-

ment Act, that article

31-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 Amend-

ment Act

was in turn challenged in proceedings insti-

tuted in this

Court under article 32 but was upheld

in Sankari Prasad Singh Dea v. Union of India and

State of Bihar(1). The result is that the impugned

Acts can no longer

be attacked on the ground of alleg-

ed 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 challenge, namely that the law in question

is

"in-

consistent 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

31-A "notwithstanding anything in the foregoing pro-

visions of this Part". The Amendment Act thus pro-

vides 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

d!d not in any way affect the

Lists. Mr. P. R Das, leading counsel for the zamin-

dars, 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

except for the purposes

of the Union,

Provisions

of entry 42 of List III.

of property,

subject to the

42.

Principles on which compensation for property

acquired or requisitioned for the purposes of the Union

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

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

.

and Others

......

Patanjali

Sastri C. /.

1952

The State of

Bihar

v. Maharaj a.

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Patanja/i

Sastri C. /,

896 SUPREME COURT REPORTS [1952]

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".

The argument may be summarised thus. Entry 36

of List II read with article 246(3) was obviously in-

tended to authorise a State Legislature to exercise the

right

of eminent domain, that is, the right of

compul-

sory acquisition of private property, The exercise of

such power has been recognised in· the jurisprudence of

all civilised countries as conditioned by public neces-

sity and payment of compensation. 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, proceeded on that

footing. The existence

of a public purpose and an

obligation to

pay compensation being thus the

neces-

sary concomitants of compulsory acquisition of private

property, the term "acquisition" must be construed

as importing, by necessary implication, the two condi-

tions aforesaid. It is a recognised rule for the con-

struction of statutes that, unless the words of the

statute clearly

so demand, a statute is not to be

con-

strued · so as to take away the property of a subject

without compensation :

Attorney-General v. De Keyser's Royal Hotel(

1

). The power to take compulsorily

raises by implication a right to payment ; Central

Control Board

v. Cannon

Brewery('). The words "sub-

ject to the provisions of entry 42 of List III" in entry 36

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 4 2, 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 mak-

ing power under entry 36. In any case, the legisla-

tive power conferred under entry 42 is a power coupl-

ed 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.

•

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:S.C.R. SUPREME COURT REPORTS 8<J7

;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 with-

out 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 im-

pugned 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

com-

putation of compensation operated m reality as ·"principles of confiscation", and the enactment

of the statutes was in truth a "fraud on the Constitu-

tion", each of them being a colourable legislative

.expedient for taking private properties , without pay-

ment of compensation in violation of the Constitution,

while pretending to comply with its requirements.

Nor were, these statutes enacted for any public pur~

pose ; their only purpose and effect was to destroy the

dass 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 pur-

sued by the politkal party in power, it could not, in

law,

be regarded as a public purpose.

Mr.

Somayya, who appeared for some of the zamin-

-dars in the Madhya Pradesh group of cases, while

adopting

the arguments of Mr. Das, put forward an

additional ground

of objection. 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

of the President, has received his assent".

Learned counsel stressed the words "law" and

·•'legislature" and submitted that, inasmuch as the

legislature of a State included the Governor (article

116

.{ ·-:-.

1952

The State of

Bihar

v •

Maharaia­

dhirajaSir

Kameshwar

Singh

of

Darbhanga

and

O.t!zers.

Patanjali

Sastri C. /.

•

1952

The State of

Bihar

y,

Maharaja­

dhirajaSir

Kameshwar

SinKh

of Darbhanga

11nd Ot7ters.

Patanjali

Sastri C. f,

•

898 SUPREME COURT REPORTS [1952J

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 compulsory acquisition of property should

rei;eive the Governor's as well as the President's

assent, the former to mab: it a law and the latter to

give it "effect". As the relative bilbi were reserved

in each

case by the Governor concerned after

they

were passed by the House or Houses of Legislature, a&

. the ::.;;,; may b~ 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 exclud-

'ed by article 31-A or article 31-B as it was not based

on infringement of fundamental rights.

Dr. Ambedkar, who appeared for some of the zemin-

dars 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

appear-

ed 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 obli--

gation to pay compensation. But he maintained that

a constitutional prohibition against compulsory acqui-

sition of property without public necessity and pay-

ment of compensation was deducible from what he-

called the "spirit of the Constitution", which, accord-

ing to him, was a valid test for judging the constitutio-

nality of a statute. The Constitution, 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 prohibition against

taking private

· property without just compensation·

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

certain· American decisions. and text books as support-

ing the view that a constitutional prohibition can

be

derived by implication from the spirit of the Con-·

stitution where no

expr~s prohib~tion has been

enacted in that behalf. Articles 31-A

and 31-B barred.

)

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S.C.R. SUPREME COURT REPORTS 899

only objections bas~d on alleged infringements of the

fundamental 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

com-

pensation before private property could be compul-

sorily acquired by the State, there was npthing in the

two articles aforesaid to preclude objection 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

Aliso challenged on some special grounds •

It will be convenient to deal with them after disposing

of the main contentions summarised above which are

common to

all the three batches of

case~.

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

zemin-

dars lost the battle in the last round when this Court

upheld the constitutionality

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 disparagement to their learned

counsel to

say that what remained of the compaign

has been fought with

such weak arguments as

over-

taxed 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

specifies the principles on which and the manner

i~ 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

3-10 S. C. India/71

1952

The State of

Bihar

v.

Maharaia·

dhiraia Sir

Kameshwar

Singh

of Darbhang_a

and Others.

Patanjali

Sastri C. /.

1952

The State of

Bihar

••

Maharaja-

dhiraja Sir

Kameshwar

Singh 11f Darbhanga

and Others.

Patanjali

Sastri C.

/.

900 SUPREME COURT REPORTS [1952]

I

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

any-

thing 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)

~hall affect-

( a) The provisions of any existing law other than

a law to which the provisions of clause

(6) apply, or

(b) the provisions

of any law which the

State

may hereafter make-

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

or penalty, or

(ii) for the promotion

of public health or the

pre-

vention 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

foregoing provision;; of this Part no law providing for

the acquisition

by the

State of any e.state or of any

rights therein or for the extinguishment or modifica-

tion 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

provi-

sions of this Part : .....•

' -

'

31-B. Validation of certain Acts and Regulations.­

Without prejudice to the generality of the provisions

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 ever

r

to have become void, on the ground that such Act,

•

•

..

..

)

S.C.R. SUPREME COURT REPORTS 901

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 or tribunal to

the conuary, each of the said Acts and Regula-

tions 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

31-A bars objections based on

contraven-

tion 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 m article 31(4)

covers acquisition of any kind of property, while

., article 31-A relates only to the acquisition of a parti-

cular kind of property, viz., estates and rights there-

in, and what is more important for our present

purpose, the

non obstante clause in article 31 ( 4)

over-

rides all other provisions in the Constitution including

the List

of the

Seventh Schedule, whereas a law which

falls within the purview of article

31-A could only

prevail over

"the foregoing provisions of this Part".

Now, the three impugned statues fall within the

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

Putting aside the later articles for the moment, it is

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

statutes 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,

~ ·e (i) that a law with respect to acquisition of

• property ~hould authorize acquisition only for a

...., public purpose and (ii) that such law should provide

for compensation, etc. Mr. Das, while admitting that

1952

The State of

Hihar

v.

MahRraja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and

Others.

Patanjali

Sastri C. /.

1952

The State of

Bihar

v.

Maharaia·

dhiraia Sir

Kameshwar

1

Singh

of Darbhanga

and Others.

Palllniali

Sastri C. /.

902 SU:llREME COURT REPORTS [19521

(ii) was a "provisi9n" of article 31(2), submitted that

( i) was not. According to him clause (2) assumed

but did not "provide" that acqms1t10n 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 Govesrnment of India

Act, 1935, which was

un-

doubetedly designed to give effect to the recommenda-

tion of the Joint Parliamentary Committee in para. 369

of their Report that two conditions should be imposed

on expropriation of private property : "We think

it (the provision proposed) should secure that legisla-

tion expropriating or authorising the expropriation of

the property of private individuals should

be lawful

only if confined to expropriation for public purpose

and if

compernation, is determined either in the first

instance or in appeal

by some independent

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

conclude

th_at article 31 (2) was also intended to

impose the same two conditions on legislation

ex-

propriating private property. In other words,

article

31 (2) must be understood as also providing

that legislation authorising

expropriation of private

property should be lawful only if it was required for

a public purpose and provision was made for pay-

ment 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

imported from the common law. Article 31 (2)

must therefore, be taken to provide for both the

limitations

in express terms. An attack on the

,...

..

S.C.R. SUPREME COURT REPORTS 903

ground of contravention of tliese provlSlons im-

plies that the law m 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 denied that they were relying on the

provi-

sions 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

..

~re­

requisites of valid legislation authorising acqms1t1on

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 pro-

vide for a just compensation. 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 m this

Constitution" are apt to exclude such grounds how-

soever 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 compensa-

tion 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

1952

The State·of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of

Darbhang•

and Others.

Patanjali

Sastri C.

/.

1952

T lu State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Patanja/i

Sastri C. /.

904 SUPREME COURT REPORTS [19521

designed to bar the jurisdiction 'of courts to entertain

objections

to the validity of a certain class of

enact-

ments 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 op1mon,

unsustainable. As

po!nted out already, article 31-A

operates as an except10n to article 31 (2) read with

article

13, only in respect of laws authorising

ac-

quisition of "estates" and rights thdein, 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 require-

ments as to public purpose and payment of compen-

sation 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

t'hus incor-

porated in the body of the Constitution, from which

"estates" alone are excluded, it would, in my opinion,

be contrary to elementary canons of statutory con-

struction to read, by implication, those very limita-

tions 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, c 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

civi-

lized countries, 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

pro-

vided for and it is further enacted that no law shall

be made which takes away or abridges these safe-

guards, 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

natural

sense of the act of acquiring property, without

importing into the phrase an obligation

to pay

)

..

S.C.R. SUPREME COURT REPORTS 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 res-

triictions 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

obli-

gation to pay compensation. Clause (4) of that

article postulates a "law" authorising acquisition

of property but contravening the provisions of

clause (2), that is, without a public purpose or pay-

ment of compensation. Similarly, clall!se (5) (b ), which

excepts certain categories of "laws" from the opera-

tion of clause (2), contemplates· laws being made with-

out a public purpose or payment of compensation.

Such laws can be made by a State Legislature only

under entry

36 which must, therefore, be taken to confer a legislative power unfettered by any implied

restrictions. ~t 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 inserted 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

sub-

clause (b) must necessarily be referable to, and derive

their competence from the legislative power under

entry

36 of List II, in so far as they purport to

autho-

rise 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 lioerties 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).

II7

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhang11

and Others.

Patanjali

Sastri C. /.

•

1952

"rhe State of

Bihar

v.

Maharaja­

dhiraja Sir

Krlmeshwar

Singh

of Darbhanga

and Others.

PatanjaU

Saitri

C. J.

•

906 SUPREME COURT REPORTS

[19521

Nor is the position improved for the zemindars by

reading entry 36 of List II and entry 42 of List III te>-

gether. 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. Tha.t they

cannot bear the interpretation 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 condi-

tions as to public purpose and pay_ment of compensa•

tion 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 to be free from such restrictive

conC!i-

tions while State legislation should be subject to them.

The fact

is that the law-making power of both

Parlia-

ment and State Legislatures can be exercised only

subject to the aforesaid two restrictions, 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

pre>-

visions, such laws cannot be struck down as uncon-

stitutional 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

;

.. >

S.C.R. SUPREME COURT REPORTS 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 exer-

cised in favour of certain persons who are intended to

be benefited

by their exercise, and on that account

may well

be regarded as coupled with a duty to exer-

cise 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

as1sent, or (3) to reserve the bill for

the consideration of the President.

The first proviso,

to that article deals with a situation where the Gover-

nor

is bound to give his

!lssent and has no relevance

here.

The second proviso makes reservation compul-

'Sory where the bill would,

"if it became law", derogate

from the powers of the

High Court, but such reserva-

tion,

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.

1952

The State of

Bihar

v.

Maharaia­

dhiraja Sir

Kameshwar

Singh

of

/)arbhanga

and Others.

Patanjali

Sastri C. /.

1952.

The State of

Bihar

v.

Maharaia·

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and

Others.

Patanjali Sastri C. /.

908 SUPREME COURT REPORTS [19521

Governor giving his assent and thereafter, when the

bill has become a full-fledged law, reserving it for the

consideration of the President. Indeed, the Governor

is prohibited from giving his assent where such reser-

vation by him is made compulsory. The Constitu-

tion 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

ne>

hasty or unjust expropriatory legislation is passed by

a State Legislature, requires for such legislation the

assent of

both the Governor and the President, and, to

make this clear, the words

"law" and "legislature"

were deliberately used in clause (3). I am unable to

agree with this view. The term "legislature" is not

always used in the Constitution

as including the

Governor, though article

168 mak.es 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 legislature" and excludes the Governor.

There

are other provisions 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 Governor" 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

obviouslv refers to what

has become a law

after recei-

ving the assent of the President. Similarly,

article 31(3) must, in

my judgment, be understood

as

-

S.C.R. SUPREME COURT REPORTS 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 h1w. 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 consideration of the

President after himself assenting to

it.

On the other

hand,

as we have seen, where reservation by the

Governor

is made obligatory, he is prohibited from

giving his assent.

) In the view I have expressed above that the objec-

tions 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 autho-

rised by the impugned statutes subserves 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 ansmg in parti-

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

of the Bihar Act, which provides that all arrears of

rent, royalti~ 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 un-

constitutional 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

com-

pensation provided for in the Act, and accord-

ingly, 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

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhang11

and· Others.

Patanjali

Sastri C.

/.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

<Jf Darbhanga

and Others.

Patanjali

Sastri C. /.

910 SUPREME COURT REPORTS [1952]

for augmenting the Treasury could not be regard-

ed as a public purpose such as would justify expro-

priation of private property. Secondly, it was said that

these 'arrears' would represent

so much money when

realised, and money could not

be the subject of

com-

pulsory acquisition as the obligation to pay compensa-

tion would practically turn such acquisition into a

forced loan.

Nor could the payment of

50 per cent of

the

face value of the arrears be regarded as

compensa-

tion 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 misconception. 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

article 31. It is equally fallacious to argue that a pay-

ment in cash or in Government bonds of half the

amount of such arrears leaves the zemindar without

compensation 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 advantage of summary remedies and

other facilities for collection, represented

so much

money or money's worth in his hands when he was to

cease to he 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 aavantage the zemindars would gain by seeking

to overthrow a provision in the Act which may well

prove beneficial

to them. However tillit may be, for

the reasons already indicated, article 31(4) bars a

challenge on these two grounds, and the objections to

section 4(b) cannot

be entertained.

•

S.C.R. SUPREME COURT REPORTS 911

An attack was also directed against section 23 (l)(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 deduction was

there-

fore a fraud on the Constitution. The argument,

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 ~ilway Co. v. Zemindar of Carvatenagaram(1),

"the zemandars 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

pre-

serving 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 propriety 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

isi not a justiciable issue in the case of the impugned

statutes, having regard

to articles 31 ( 4), 31-A and 31-B,

it is not open to the court to inquire whether a

deduc-

tion which results in reducing the compensation is un-

warranted 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

pro-

vision compensation was payable in cash or in bonds

or partly in

cash and partly in bonds. The bonds

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

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Karneshwar

Singh

of Darbhanga

and Others.

Patanjali

Sastri C. /.

1952

The Stat< of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshtvar

Singh

cf Darbhanga

and Others.

Patanjali

Sastri C. /,

912 SUPREME COURT REPORTS ' [1952]

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

transferable and were payable in forty equal instal-

ments. Power was given to the State Government

under section

43 (2) (p) 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". It was argued

that,

whik' the Constitution conferred power on the

legislatures under entry

42 of List III to make laws

with respect to the principles on which

compensa-

tiop for property acquired was to be determined

and the form and the mauner m wji.ich such

compensation was

to be given, it was not

com-

petent for the Bihar Legislature to delegate this essen-

tial legislative 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,

<Jnd, as payment of compensation was an inextri-

cable 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

mean-

time. The proportion in which the compensation

could

be paid in cash and in bonds and the intervals

between the instalments have been left to

be

deter-

mined by the executive government as tliose 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 permissible

delegation can the vesting of such limited discretion

by a legislature in an administrative body be held

incompetent. The same remark applies to the

delega-

tion 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 dU.ly passed as no question was

put

by the Speaker, at the third reading of the bilf,

'

•

..

-

S.C.R. SUPREME COURT REPORTS 913

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

by the provisions of rule 20 (1) of the rules governing

legislative business then in force, and that the omis-

sion

was not a mere

"irregularity of procedure" which

the court

is barred from enquiring into under article

212 (1) of the Constitution. Rule

20 (1) reads as fol-

lows:

"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 Proprietary Rights (Estates, Mahals,

Alienated Lands) Bill,

1949, (No. 64 of 1949) as con-

sidered 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 of the

pro-

ceedings prepared by the Secretary under rule 115(1),

however, did not record that the Sepaker 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

t11e 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 substance in the objec-

tion. 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 pass-

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

ment

was signed by the

Speaker on 10th May, 1950.

The official 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

tf:te motion having been put and carried .

Such omission cannot, in the face of the explicit state-

ment by the Speaker endorsed on the Bill, be taken

II8

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Patanjali

Sastri C. /.

1952

The State of

Bihar

v.

Maharaia­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Patanjali

Sastri C. /.

914 SUPREME COURT REPORTS [1952]

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

circumstances, 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

pay-

ment of compensation must prevail. It will be recalled

that the

High Court of Patna held the Bihar Act

un-

constitutional as being discriminatory in providing for

payment of compensation, and it was

to overcome

that difficulty that articles

31-A and 31-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

pur-

ported 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 provisions contained

in article 31-A" showed that the mention of parti-

cular 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

deci-

sion of the Privy Council in Sibnath Banerji's case(').

I cannot agree with that view. There is nothing in

article 31-B to indicate that the specific mention of

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

S.C.R. SUPREME COURT REPORTS 915

certain statutes was only intended to illustrate the

application 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 way calculated to restrict

the application of the latter article or

of the enactments

referred to therein

to acquisition of

" estates. " The

decision cited affords no useful analogy.

In some of the

cases the estates sought to be acquir-

ed 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 properties in question

were recognised

to be the

"private property" of the

Rulers. In these

cases it was urged that that estates

sought to

be acquired formed part of the Rulers'

"per-

sonal 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 Attorney-General had several answers to

this argument, including the bar under article

363 to

interference

by courts in disputes arising out of agree-

ments, 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 objection.

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

4-10 S. c. India/71

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhang~

and Others.

Patanjali

Sastri C. J.

1952

The State of

Bihar

v. Maharaja­

Jhiraja Sir

Kamcshwar

Singh

of Darbhanga

and Others.

Patanjali

Sastri C. /.

916 SUPREME COURT REPORTS [1952)

Estate being left to be enjoyed by him as his plivate

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

abse!Jce of any material to establish the facts, the

allegation calls for no· consideration.

Certain other minor points were also raised in some

of the cases but they are ·not worth mentioning as

,they proceeded 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 overruled.

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 infringement 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 Assembly

qf Bihar and was passed by

both the Houses of Legislature, 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 Government

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

same day a ·notification under section 1 (3) of the Act

was published declaring that the Act would come

into force immediately. On the same day, a

notification under section 3 of the Act was published

stating that the estates and tenures belonging to the

respondent and two others passed

to and became

vested

in

th~ 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

Constitution, challenging the constitutionality of the

••

•

..

-

S.C.R. SUPREME COURT REPORTS 917

said Bihar Land Reforms Act and praying fur a writ

in the nature of mandamus to be issued on the State

of Bihar restraining it from acting in any man-

ner by virtue of, or under the provisions of, the

said Act. This application was heard along

with

three title suits and other similar applications filed by

various zemindars of Bihar

by a

Special Bench of the

High Court. By three separate but concurring judg-

ments, the Court declared the Act to be unconstitu-

tional and void

on the ground of its infringement of

fundamental right under article

14 of the Constitution.

The validity of tl1e 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 (I) of article 31 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

compen-

sation was illusory.

4. That it contravened article 19(1) (f) of tht'

Constit,ution.

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

article

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.

1952

The State of

Bihar

v.

Mahara7a­

dhiraja Sir

I<.ameshwar

Singh

of Darbhanga

and Others.

Mahajan /.

•

1952

The State of

Bihar

v.

Maharaja·

Jhira7a Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan /.

918 SUPREME COURT REPORTS [1952]

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 Constitu-

tion.

8. That the Act was unconstitutional as it contra-

vened 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 disallowed

by this Court on the 5th

October,

1951, and it was held that the Constitu-

tion (First Amendment) Act,

1951, had been validly

enacted. In view

of the Amendment Act any

argu_ment regarding the

unconstitutionality of the

Bihar Act based on the ground that the

prov1s1ons

of that Act contravened 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 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 tenable

and

it has therefore to be reversed in case this Court

agrees with the decision of the

High Court

oii the

points decided against the respondent.

Mr. P. R. Das for the respondent frankily conceded

that no objection

to the validity of the Act at this

stage could

be raised on the ground that it contra-

vened any of the provisions of

Part III of the Con-

stitution. He, however, supported the decision of the

Court on grounds decided against him

by that Court

and urged the following points

:-

;

-

S.C.R. SUPREME COURT REPORTS 919

1. That it was not within the competence of the

Bih'\r 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

pro-

perty could not be acquired without payment of com-

pensation, 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 con-

comitant obligation

to pay and the power to acquire

is inseparable from the obligation to pay compen-

sation and

as the provisions of the statute in respect

of payment of compensation are illusory, it

is uncon-

stitutional.

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

said that it deals with the fundamental right re-

garding property which is expressed in the clause in

negative language. 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 Legislature 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

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan/.

1952

The State of

Bihar

v.

Maharaia­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mshajan /.

920 SUPREME COURT REPORTS [1952]

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

acqui-

sitiop. was to be paid for. It is further contended that

the legislative power in entry

42 is a power coupled with

dnty which the legislature

was bound to exercise for the

benefit of the person whose property was taken in exer-

cise 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 the legislature to pass the Act in any

truncated form in which it would remain if the

provi-

sions regarding compensation 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

Legisla-

ture to enact the Bihar Land Reforms Act, 1950, it is

necessary to refer to its provisions and to see on what

subjects the legislature 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

St:ite 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

•

•

S.C.R. SUPREME COURT REPORTS 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 colletion

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 undis-

covered, or whether being worked or not, inclusive

of such rights of

lessee of mines and minerals, com-

prised in such estate or tenure (other than the interests

of raiyats or under raiyats) shall vest absolutely in

the

State free from all incumhrances. 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 re-

coverable 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 arrears 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 monev 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 outstand-i11gs in the nature of rents and rent decrees that

were due to the proprietors or tenure-holders before

tJ1e date of

vesting and before the State had any right,

:itle or inkn.:st in the estate would also pass to it.

·rhis seems to be a peculiar and rather extraordinary

consequence of the vesting of an estate. Normally it

has no relation to and cannot be regarded as an inci-

dent

of the transference of

tlie estates. The clause

is m 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 suit~ or decree~ including the costs of those

1952

The State of

Bihar

v.

Maharaja­

dhiraja

Sir

Kameshwar

Singh

of

Darbhanga

and Others.

Mahajan /.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

<Jf Darbhanga

and Others.

Mahajan /,

922 SUPREME COURT REPORTS [1952]

suits and decrees will stand forfeited to the State.

In clause ( c) the liability of the proprietors or tenure-

holders for payment of arrears of revenue and cesses to

th.e Government 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

necesisary to do for the management of the

estate or tenure. Section 5 permits the proprietors

and tenure-holders

to retain their homesteads but

only in the capacity of tenants free from the

obliga-

tion 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 together

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

section 9 it

is provided that all mines comprised in

the estate or tenure

as were in operation at the

com-

mencement of this Act and were being worked directly

by the proprietor or· tenure-holder shall he deemed to

have been leased by the State Government to the pro-

prietor or tenure-holder. This section does not include

within

its scope mines on which considerable money

might have been spent but which are actually not

m

operation. An artificial definition has been given m

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 subsis-

ting lease of mines and minerals, the lessee being

deemed to be a lessee under the Government. Build-

ings and lands appurtenant to a mine stand transferred

..

S.C.R. SUPREME COURT REPORTS 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 m the. State. Sections 14, 15,

16, 17 and 18 make provisions relating to the investi-

gation of debts of proprietors and tenure-holders and

Jay down the procedure for payment of those debts.

In section 19 prov1SJon 1s made for the appointment

of compensation

officer. Certain directions are given

in sections 20 and 21 regarding the procedure to be

adopted

by the compensation

officer when the pro-

prietor has only a certain share in an estate and where

certain trusts have been created

by the tenure-holder <lr proprietor. Section 22 defines "previous agn-

cultural year" and the phrase "gross assets" with

reference to a proprietor or tenure-holder. "Gross

assets" in the Act means the aggregate of the rents

including all

cesses, which were payable in respect of

the estates or tenures of such proprietor or tenure-

holder for the

prevwus agricultural vear, whether

payable

by a subordinate tenant or

· the raivats.

Certain details are laid down for the assessment of

those rents.

In the

exprnss1on "gross assets" 1s also

included the gross mcome of the prev10us agricultural

year from fisheries, trees, jalkiars, ferries, huts, bazars

.and sairati interests. Gross mcome from forests

has to be calculated on the basis of the average gross

annual income of twenty-five agricultural years pre-

ceding the agricultural year in which the date of vest-

mg 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 mcome 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;

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

11nd 0 thers.

Mahajan

/.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan f.

924. SUPREME COURT REPORTS [19521

(b) any sum payable by such proprietor as agri-

cultural 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 muni-

cipal tax ;

( e) cost of management of such estate or tenure

at rates varying from five to twenty per cent. accord-

ing 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 whatsoeyer to the actual

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

Maharaja of Darhhanga whose estate

has a gross

income of nearly forty-eight lakhs, the cost of

manage-

ment, according to this calculation, would work out

to a sum of nine an<l a half lakhs, which on the face of

it looks starting; it can hardly have any relation

to the costs actually incurred. The expense ratio

under the head

"management would ordinarily be

lowest for the higheH gross income. It goes up m

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 forfeite<l 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 est2tes or tenures

at rates varying from four to twelve and a haif per

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

where the

gross asset doos 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

'

'

. -'

-

-

S.C.R. SUPREME COURT REPORTS 925

that the calculation of the cost of works of benefit

to the raiyats at a flat rate without any reference

to the actual expenses that might have been incurred

is a provision of a confiscatory character. It

arti-

ficially 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

tenure-

holder. It lays down a sliding scale for the assessment

of compensation. Where the net income does not

exceed

Rs.

500, the compensation payable is twenty

times the net income and where the net income com-

puted 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 Darbhanga,

the estate acquired also

comprised land purchased by

him

by spending about a crore of rupees and also

com-

pri.<Jed mortgages, to the tune of half a crore. All these

vest in the Bihar State along with the inherited

zemindari~ of the Maharaja and arrears of rent

amounting

to Rs.

30,00,000, while the total compen-

sation payable is ne:1rly 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 ~he arrears of rent referred to in clause (b) of sec-

tion 4 along with the amount of rnmpensation paya-

ble 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

i-he estate or tenure is held in the 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

subse-

quent section~; provide for the preparation of compen-

sation roll and for hearing of appeals etc. Section 32

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan/.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

<Jf Darbhanga

and Others.

Mahajan /.

926 SUPREME COURT REPORTS [1952]

lays down the method and manner of p~yment of

compensation. Sub-section (2) of this section enacts

that the amount of compensation shall

be paid in cash

or in bonds or part! y in cash and partly in bonds.

The bonds shall be

eitl-ier negotiable or non-negotiable

and non-transferable and

be payable in forty equal instalmen~s to the perrnn 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 pro-

visions 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, i.e., 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

deter-

mined. The pith and substance of the legislation

however, in my opinion,

is the transference of

owner-

ship of estates to the State Governmeru and falls

within the ambit of legislative head entry

36 of L>st II. There is no scheme of land reform within

the framework

of the statute except that a pious hope

is expressed 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 1s

con-

stitutional.

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 in-

direct manner forfeits the State exchequer part of the

compensation money which would have been payable

..

S.C.R; SUPREME COURT REPORTS 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

provlSlons will

be separately dealt with hereinafter as, in my opi-

nion, the enactment of these provisions

is uncon-

stitutional.

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

Lis:t II, it is convenient now to examine the conten-

tion 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 compen-

sation and that

as the provisions regarding payment of

compensation are illusory, the Act

i:s 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

pro-

position of Mr. P. R. Das that the obligation to pay

compensation

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 compensation, 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

sovereign power.

As an incident to

thi,<; 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 without undue interference

or molestation, and the requirement that property

shall not

be taken for public use without just compen-

sation

is but an aflirmance of the great doctrine esta-

blished

by the common law for the protection of pri-

vate property.

It is founded in natural equity and is

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga,

and Others.

Mahajan/.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

-0/ Darbhanga

and Others.

Mahajan

f.

928

SUPREME COURT REPORTS

laid down as a principle of universal law."

words of Lord Atkinson in Central Control

Cannon Brewery

Co. Ltd.

('), the power·

compulsorily raises by implication a right

ment.

(1952]

In the

Board v.

to take

to

pay-

On the continent the power of compulsory acqms1-

tion 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

society 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 discussed 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 compen-

sation) is thus well established and clear, let' it be

particularly noticed upon what grounded it stands viz.,

. upon the natural rights of the individual. On the

otht;.r 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 implied

watract

between the State and the individual, that the former

shall have the property,

if it will make compensation ;

the right

is no mere right to pre-emption, and it has

no condition of compensation annexed

to

it: either

precedent or subsequent ; but there

is a right to take,

(

1

) [19191 A.C. 744.

•

.~.

S.C.R. SUPREME COURT REPORTS 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."

~horn of all its incidents,· the simple definition of

the power to acquire compulsorily or of the term

"eminent domain" is the power of the sovereign to

take property for public use. without the owner's con-

sent. 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 appro-

priate exercise of the power and is considered essen-

tial in any statement of its meamng. 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

J imitation as an essential constituent of its

meaning. Authority

is universal m 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

com pensa ti on.

It

is clear, . therefore, that the obligation for

pay-

ment 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

obligation

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 ocmpulsory 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

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan

J,

1952

The State of

Bihar

v.

Maharafa·

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan /.

930 SUPREME COURT REPORTS [1952)

'

compulsory acquisition of property to the status of. a

fundamental right and it

has declared that a law

that

does not make provision for payment of

compen-

sation 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

<;l).try 36. . I

agree with the learned Attorney-General that tlY.:

concept of acquisition and that of compensation 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

dqirived of property to be

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

the other is the condition flor the exercise of tl1at

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 no duty

to pay compensation implicit in the content of the

entry itself.

Reference

m this connection may be made to the

Government of India Act,

1935. By section 299 of

that statute a fetter was imposed on the power of

legislation itself. The Constitution, however,

de-

clared laws not providing for compensation · as void

and

it not only placed a fetter on the power of

legis.

lation but it guaranteed the expropriated proprietor a

remedv in article

32 of the Constitution for

enforce-

ment

0

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

en-

acted under legislative power conferred by entry 36 of

List I for compensation, the law

is unconstitutional

as entry 36 itself does not authorize the making of

such a law without providing for compensation. Then

,,

S.C.R .• SUPREME COURT REPORTS 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

mad<'. 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

pro-

visions of the impugned Act regarding the determina-

tion of compensation being illusory), the legislation

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 inter-

dependent nor complementary to one another. It

is

by force of the provisions of article 31 (2) that it be-

comes obligatory to legislate providing for compen-

sation 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 words

"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 com-

pulsory acquisition of property for hs purposes with-

out fulfilling the condition of making a law under

entry

42 of the Concurrent List, but a

State Legis-

lature in this respect

is in a different situation.

Such

a contention, in my opinion, is untenable. The only

purpose

of the words

"subject to" occuring 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 pre-

ference 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 exer-

cise 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 C'nncurrent List.

5-10 S. C. Tndiaf71

1952

Thi: Stati: of

Bihar

v.

Maharaja­

dhiraja Sir

Kami:shwar

Singh

of Darbhanga

and Others.

Mahaian /.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan/.

932 SUPREME COURT REPORTS [1952]

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 legislature

is bound to exercise this

power for his benefit whenever 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 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 o.bservations do

not have

any apposite application to the case of

legis-

lative powers conferred by a constitution. The

entries in the

lists are merely legislative heads and

are

of an enabling character. Duty to exercise

legis-

lative 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 legis-

lature 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 entrv

42 cannot make a law

made under entry

36 bad. Ii1 my opinion, the decision

in the

case of

Julms v. Bishop of Oxford(') has no

relevancy to the matter before

us.

The crucial point for determination in these appeals h to discover the extent to which article 31 ( 4) of

the Constitution or the new articles

31-A and 31-B

have deprived the expropriated proprietor of his

rights or remedies in respect

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 Constitution in the legislature of a State has,

after

it has been passed by such Legislature, been

(1)

(1880) 5 App. Cas. 214.

'

.~

S.C.R. SUPREME COURT REPORTS 933

reserved for the consideration of · the President and

has received his assent, then

notwithstanding any-

'

thing 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 fore-

going provisions of this Part, no law providing for the

acquisition

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 inconsistent with, or takes away or

abridges any of the rights conferred by any

pro-

visions of this Part :

Provided that where such law

is a law made by

the Legislature of a State, the provisions of this

Article shall not apply thereto unless such law,

having been reserved for the consideration the

Presi-

dent 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 ex-

pression 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

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 inconsistent with,

or takes away or abridges any of the rights conferred

by any provisions of this Part, and notwithstanding

any jmlgment, decree or order of any court or tribunal

1952

The

State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan/,

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan f.

934 SUPREME COURT REPORTS [1952]

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,

notwithstand-

ing 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

pro-

vision. In my opinion, the provisions of sub-clause

(2) made unjusticiable

by clause (4), relate to the

determination and payment of compensation.

The

whole purpose of the clause is to make the obligation

to pay compensation a condition precedent to the

compulsory acquisition

of property. The words of

the clause preceding the word

"unless" are merely

descriptive

of the law, the validity of which would be

questionable if there was no provision for

determina-

tion and for payment of compensation for the property

taken in its contents. 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 acquisition by the

State, but the language of article 31(2) does A not

..

J

.. ~

-.

S.C.R. SUPREME COURT REPORTS 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 jurisdiction 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 compulsorily

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 improve-

ment, however valuable, no refusal, however unneigh-

bourly, 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 Nichols and other constitutional writers, even

though obligation to pay compensation

is not a content of the definition but has been added to it by judicial

interpretation. The exercise of the power to acquire

compulsorily

is conditional 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

article

31 (2) and courts cannot examine either the

extent or the adequacy of the

prov1S1ons of com-

pensation contained in any law dealing with the

1952

The

State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan/.

1952

The State of

Bihar

v. Mahara;a­

dhiraia Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan/.

936 SUPREME COURT REPORTS [1952]

acquisition of property compulsorily for public purpose

but the barring provisions of article 31(4) <lo 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 Jo 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 exercised 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

c;ourt any enact-

ment 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 convenie11t to examine the extent of the

protection given by

:i.rticle 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-Gcneral,-that

the

law under challenge in

the matter of compensation

is highly unjust or

inequi-

table 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 Constituent Assembly that provi-

ded the guarantees in article 31 (2) in respect of pay-

ment of compensation and provided the remedy

.in article 32 for enforcing the· guaranteed right,

took awav that rcmedv in the

case of the Bihar

and

othe~ zamindari estates and substituted for

it the procedure

of article 31(3) and (4), compliance

with which wonld

be sufficient to make tbe laws valid

and effective. However repugnant the impugned

law may be to our

sense of justice, it is not possible

S.C.R. SUPREME COURT REPORTS 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 Constitution in clear terms

not

to be justiciable, cannot be made justiciable in an

indirect manner by holding that the same subject-

matter which

is expressly barred is contained impli-

citly 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 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 tor any public

purpose and if it

be not so, the law can certainly be

held to

be unconstitutional. Mr. Das contended, and

in my opinion rightly, that jurisdiction to acqmre

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 conten.tion on the ground that the ques-

tion whether there

was a public purpose in support of

the acquisition of the estates 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 opm10n, estopped from saying that

the acquisition of estates and tenures

is not an acqui-sition for such a purpose. That it is, has been decided

by the Constituent Assembly itself."

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar Singh

of Darbhanga

and Others.

Mahajan/.

1952

The State of

Bihar

v.

Mnharaja­

dhiraja Sir

Kameshwar

Singh of Darbhanga

and Others.

Mahajan f.

938 SUPREME COURT REPORTS (1952]

This decision was reached in view of the prov1S1ons

of clauses (4) and (6) of article 31 which were inter-

preted to mean that the Constituent Assembly gave

their express approval to this legislation. Reuben

J.

observed as follows :-

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

Constituent Assembly considered two requirements

as essential for compulsory

acqumt10n, 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

reqaued

under the other head, that is to say, the Constituent

Assembly regarded that nationalization of land

as

it-

self constituting a public purpose.

I would, therefore, hold that there

is a

pose for the impugned Act within the

clause (2) of article

31."

Das J. said as follows :-

public pur-

meaning of

"There is, I think, clear indication in the Constitu.

tion of India itself that the expression 'public purpose'

is to be understood in a wide and comprehensive

sense. Furthermore, there is indication that the

Constituent Assembly, representing the people

of India

which

made the Constitution, 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

Hill was pending at the

commencement of the Constitution

........ If the legis-

lation then pending was not for a public purpose, it

was, indeed, surprising that the Constituent Assembly

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

Constitue11t 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.

..

, .

•

•

..

-

S.C.R. SUPREME COURT REPORTS 939

For the reasons given above, I hold that the

impugned Act does not fall for want of a public

purpose".

Learned counsel challenged this view of the High

Court and contended that article 31 ( 4) of the Constitu-

tion

is no 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 zami11dars

would . go into the coffers

-0f 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 gather-

·ed from this Act was the ruination of a large class of

persons without any corresponding benefit to any

sec-

tion of the community. It

is said that there are

13,35,000 land-owners and tenure-holders m 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 excepting the waste

lands sought to

be transferred are 111 the possession

and cultivation of the ryots and no part of the rent

realisable from them

Is being commuted for their

benefit. It

IS pointed out that the waste lands were.

sufficient to meet the requirements of villagers for

grazing (;attle and for pasture and that in effect the

acquisition of the estates was for the purpose of crea-

ting 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 nationali-

zation ·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 Hamabai Pramjee Petit v.

Secretary of State for India (1), where it was observed

:that the phrase "public purpose" whatever it . may

(l) (1915) 42 I.A. 44.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan/.

1952

The State af

Bihar

v.

Maharaia­

dhiraia Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahaian ].

940 SUPREME COURT REPORTS [1952}

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

1s

directly and vitally concerned. The impugned Act, it

was contended, did not fall within this definition of

"public purpose". Reference 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 pnblic policy will be sufficient

to validate other transfers when they concern existing

vested rights."

Finally, it was urged tl1at there was nothing definite

or tangible in the Act or in the

views of the

legisla-

tures which gave any indication of the public purpose

for which the estates were being acquired and all that

could be gathered 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

address-

ed 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 un-

•1ecessary to state in express terms in the statute itself

tne precise purpose for which property is being taken,

nrovided from the whole tenor and inten<lment of the

Act it could be gathere<l that the property was being

acquired either for purposes

of the

State or for pur-

poses of the public and that the intention was to

benefit the community at large. It may be conceded

that the present statute does not disclose the legis-

lature's mind as to what it would ultimately do after

the estates arc 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 acqtiired will

be utilized. The statute

• •

•

,. '

•

.. '

S.C.R. SUPREME COURT REPORTS 941

provides m section 34 for the establishment of a land

commission whose function it will be to advise the

Government

as to its agranan policy. Be that as it

may, it seems to me that m 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 1s 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

t!owards securing that the ownership and control of

the material resources of the community are

so

dis-

tributed 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

1s

based.

The purpose of the acquisition contemplated

by the impugned Act therefore is to clo away with the

concentrat;on of big blocks of land ancl means of pro-

duction in the hands of a few individuals and to so

distribute the ownership and control of the material

resources which come m the hands of the State as to

subserve the common good as best as possible. In

other wor<ls, 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 commu-

nity 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 1s m accordance

with the letter and spirit of the Constitution of India.

It is fallacious to contend that the object of th1 Act is

1952

The State of

Bihar

v.

Maliaraja­

dhiraja Sir

Kameshwar

Singh

of

Darbhanga

and Others.

Mahajan/.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

<Jf Darbhanga

and Others.

Mahajan/;

942 SUPREME COURT REPORTS [1952]

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, tbeir mineral wealth except mines not in

operation have not been seriously touched

by the

pro-

visions 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 <liflicult to hold in the pre-

sent day conditions of the world that measures adopt-

ed for the welfare

of

the community and sought to be

achieved by process of legislation so far as the carry-

ing out of the policy of nationalization of land is con-

cerned can fall on the ground of want of public pur-

pose. The phrase "public purpose" has to he con-

strued 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 statute, acquisition of fifty per cent. of

these arrears was 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

obli-

gation 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 provisions of the Act

regard-

ing payment of compensation. Clause ( 4) of article 31

affords no protection against the invalidity of these

clauses.

The learned Attorney-General contended that the

acquisition 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

un-

able to accept this suggestion. It is a well accepted

'

,

..

.. _ ....

•

S.C.R. SUPREME COURT REPORTS 943

proposition of law that property of individuals can-

not

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 com-

pulsory acquisition

of

property," says Cooley (in

Vol. II at p. 113, Constitutional Limitations) "is

founded on the superior claims of the whole com-

munity 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

~10ney under the right of eminent domain, when

1t 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 taxation, and also

rights in action which can only be

avai~able when made

lo produce money, cannot be taken under this power."

Willis in his Constitutional Law, at page 816,

offers the same opm1on. Nichols on "Eminent

Domain" (Vol. I, at page 97) has expressed a con-

trary opinion and reference

has been made to the

decision in

Cincinnati v. Louisville etc., R. Co.

(1). 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 case is the same amount of money

(1) 223 U.S. 390.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan/.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan].

944

SUPREME COURT REPORTS [1952]

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 posi-

tion

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 acquisition 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, which it was not the object

of the

Act to acquire.

As already 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 un-

constitutional.

One or two illustrations of the public purpose in-

volved in this provision will bring O\lt its true character.

In Appeal No.

299 of 1951, the arrears of Darbhanga

Raj

011 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 of Raja

P. C. Lal (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 Cunstitution 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 contrivance. Reference

was made to certain provisions of the Act of a

con-

fiscatory nature, already noticed in this judgment.

Section 9 was mentioned under which mines in the

-course of development and fetching no income yet

' -

. ~

•

I

•

S.C.R. SUPREME COURT REPORTS 945

vest in the State without payment of compensation.

No compensation 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 payment of compensation (so-called)

out of the moneys belonging to the zemindars them-

selves 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 prin-

ciples 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 anythiµg 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 No. 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 appe;:il) the zemindari will be acquired

on payment of a small sum of Rs. 14,000 only. No-

thing will be payable to the zamindars out of the

public exchequer. Attention

was drawn to the obser-

vations 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 com-

pensation 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 parti-

cular

class are to be expropriated without compensa-

tion or with the most inadequate compensation

in

order that, when the great

majorit} are expropriated,

they receive compensation which will not be in-

adequate and may, quite possibly, in many

cases, be

more than

adequate."

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan/.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan /.

946 SUPREME COURT REPORTS [1952J

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

con-

trivance it has provided for the evasion of its pay-

ment. Reference was made to a passage in Moran

Proprietary Ltd. v. Dy. Commissioner of Taxation for

New Sottth Wales ('),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 11/tra 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 dealing 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 expedient-objected to as ttltra 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, whether they act in

excess or in

abuse of their statutory powers. Reliance was placed

in this connction on the observations of Abbott

C.J.

in Fox v. Bishop of Chester("), which are in these

terms:-

"Our judgment is founded upon the language of the

Statute

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."

(!) [1940] A.C. 838, at p. 858.

(2) 107 E.R. 520, at p. 527.

•

' .

>--l

•

••

» .

S.C.R. SUPREME COURT REPORTS 947

In Fox v. Bishop of Chester(1), it was said that there

may

be

fraU<i on the law, an insult to an Act of Parlia-

ment, though in the language and text of the law no

such fraud

may have been mentioned. In Westminster

Corporation

v. London & North Western

Raz'lway(2), it

was

observed :-

"It is well settled that a public body invested with

statutory powers such

as those conferred upon the

corporation must take care not

to exceed or abuse its

powers. It must keep within the limits of the author-

ity committed to it. It must act in good faith. And

it must act reasonably. The last proposition is involv-

ed in the second,

if not in the

first."

In Maharaja Luchmeswar Singh v. Chairman of the

Darbhanga Municipality(8), 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. lq Alexander v.

Brame(

4

), it was observed that i£ 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 it, while

meaning substantially to infringe it, a view might

have been taken favourable to the appellants.

All these principles are

wellcsettled. But the ques-

tion

is whether they have any application to the present

case. It is by no means easy to impute a dishonest

motive to the legislature of a

State and hold that it

acted

mala 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.

6-10 S. C. India/71

1952

The State of

·Bihar

v •

M aharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Ma/iajan /.

1952

The State of

Bihar

v.

Mahar11ia-

4hiraia Sir

Kameshwar

Singh

•f Darbhanga

•al Otherr.

SUPREME COURT REPORTS

[1952]

without payment of compensation, one cannot j~mp

to the conclusion that the whole of the enactment ts 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 affected by it.

Section 23(f), however, in my opinion, is a colour-

able piece of legislation. It has been enacted under

power conferred

by legislative entry 42 of List III.

It

is well-settled that Parliament with limited powers

cannot do indirectly what it cannot do directly. (Vide

South Australia v.

The Commonwealth(') and Madden

v. Nelson & P<>rt Sheppard R. W. Co.(2). In Deputy

Federal Commissioner of Taxation (N. S. W.) v. W.R.

Moran Proprietary Ltd. (

8

), it was observed as

follows:-

"Where the law-making authority is of a limited

or qualified character,

obviously it may be necessary

to examine with some strictness the substance of the

legislation for the purpose

of determ'ining 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

legi.~lature. cannot disobey the prohibition merely

by employing an indirect method of achieving exactly

the

same result ........ The same issue may be whether

legislation whieh at first sight appears to conform

to

constitutional

requirlements is co~ble or disguised.

In such

cases the court may have to look behind

names, form 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 payh;g

compensation bur in truth, is designed to deprive a

number of people of their property without payment

of compensation. The

State legislature 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.

I _A -'.

' ..

. ..,

•

•

,,

S.C.R. SUPREME COURT REPORTS 949

propeny 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 deprive them of the right of

compen-

sation to a certain extent.

In this connection it is no~ convenient to examine

the contention

of the learned Attorney-General as to

the interpretation 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 whatsoever. I cannot

possibly assent to any such construction of this entry.

The entry reads

tfius:-

"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

compul-

sory acquisition 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 acquisition of propeny will

be void if it does not provide for payment of compen-

sation 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 legisla-

tion in entry 42 is for enacting the principles of deter-

mining such compensation and for paying it. The

principles to be enacted are for determining such

compensation and for paying it. The principles

to

be enacted are for determining the equivalent

price

of the property taken away. It may be that

the determination

of the equivalent may be left

for ascertainment on the

basis of certain uniform

rul('s;

1952

The State of

Bihar

••

Maharaja-

tlhiraja Sir

Kameshwar

Sin1h

of Darbhan111

and Otliers.

Mahaian /.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan f.

950 SUPREME COURT REPORTS [19521

for instance, it may be laid down that the principles

for 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 fur non-

payment of compensation or for negativing the pay-

ment 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 __ ior

determination of compensation which result

in its

non-

payment except in the Act under notice. AlCfcgiS:

lative heads have to be reasonably construed and the

power given under entry

42 is a positive power

given·

to bring about the resuit of payment of compensation

and not non-payment of the same.

The key words

in the entry

are "compensation" and "given". Any-

thing that is no.related to compensation or the giving

of it cannot be justified by legislation under entry 42,

Reference was made in this connection to the United

Provinces v. Atiqa Begum('), in which it was held that

the descriptive words under the legislative head

-"collection of rents" are wide .enough to permit k~-

lation 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 legis-

late with respect not only to afforestation but also to

disafforestation and that the legislative head "fisheries"

would include the power to legislate on the prohibi-

tion of fishing altogether. In my opinion, these

analogies have no application . to the construction of

the language employed in entry

42, These entries are

not

in

par[ materia to entry 42. Perhaps a more

analogous

case on the point is the decision in

Attorney­

General for Ontario v. Attorney-General for t!te Domi­

nion (

2

). The question there was whether the legis-

lative head "Regulation of Trade and Commerce"

included the power to abolish it also. Their Lord-

ships of the Privy Council made the following

observations which appear at page

363 of

the

report:-

(!) [1940] F.C.R. 110 at p. 135. (2) [1896] A.C. '!48.

•

' J

' .

' .,

•

,

'·

S.C.R. SUPREME COURT REPORTS 951

"A . power to regulate assumes the conservation

1

95

2

of the thing which is to be made the subject of regu-Tl• Stat• of

lation. In that view, their Lordships are· unable to Bihar _

regard the. prohibitive enactments of the Canadian v •.

statute as regulations of trade and commerce .... there Maharaja·

· is marked distinction between the prohibition or pre-dhiroja Sir

vention of a. trade and the· regufation or governance Kas~·h~•

f

't" . ..g,.

0 1 • . of Darbhanga

An entry concerning payment of compensation in no•v ornlOthera. ~­

sense includes legislative power of non-payment of

compensation,

The whole purpose of this head

of/ MohajanJ.

legislation is to provide payment of compensati_on andi

-not the confiscation of property. · . -·

The provision that four per cent. to twelve and a

half per cent. has to be deducted out of thenet income

on account 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 objecLbeing.. to

inflate

the deductions and

thusJ1r.ing_about_11on,pay­

ment of compens_aJ;ion. -such legislation, in my

op1mon, is not permitted by entry 42 of List III.

Suppose, 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 (ti

was legislation on principles of determining compensa-D

tion or of making payment of compensation. This

provision, therefore, in

my opinion has been inserted

in the Act as a colourable exercise of legislative 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

jn truth and fact not falling within the content of thai

=-

1952

TAe State of

Bihm·

v.

Mah1Jraja­

dhiraja Sir

Kameshwar

Singh

of Darbhan ga

and Others.

Mahajan /.

952 SUPREME COURT REPORTS (1952]

power is merely colourably constitutional but is really

not

so. [Vide Quebec v. Queen Insurance Co. (') ;

Russell

v. The

Queen(').] Reference in this connection

may also

be made to the decision of the

Privy Council

in

Madden v. Nelson & Fort Sheppard R. W. Co. (').

This clause therefore is unconstitutional legislation

made colourable

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 presumed that the legislature intended to pass it in

what

may prove to be a truncated form. The real quc:stion to decide in all such cases is whether what

reamins

is so inextricably bound up with the part

declared invalid that what remains

canno~ independ-

ently 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. Look[ng 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

Act

was unenforceable.

section 32(2) of the Act

minor point that the Bihar Reference was made to

which runs as follows :-

"The amount of compensation so payable in terms

of a 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-negotiable and non-transferable and

be payable

in forty equal instalments to the person named

the1ein

and shall carry interest at two and a half per centum

per annum with

effect from the date of

issue."

(!) (1878) App. Cas. 1090. (3) [1899] A.C. 626.

(2) 7 (1882) App. Cas. 841.

' .

)., .

••

S.C.R. SUPREME COURT REPORTS 953

It was contended that as no date has been ment_ion-

ed 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 pay.

ment 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

reasi;.>n.

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

prov1S1on. Firstly, 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 h;, ving trusted these matters to the

care, judgment and wisdom

of the legislature, it had

no power to delegate these matters to the executive.

Secondly, it was contended that section 32 (2)

dele-

gated 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

1952

T }11: Stau of

Bihlll' .

y,

Maharaia·

tlhiraia Sir

Kameshwllf'

Singh

of Darbh11,,g11.

and Others.

M ahaian J.

,

'TM State of

Bihar

v.

Maharaia­

ilhiraia Sir

Kamcshu1ar

Singh

t'>f Darbhanga

ond Others.

Mahaian /.

954 SUPREME COURT REPORTS [1952}

2. The determination of the period of redemption

of the<e 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 payment

of compensation will be in these two

forms. It further enacts that bonds shall

be either

negotiable or non-negotiable 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 redemption 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 determination of

proportion

in which compensation is to be paid in

cash or in bonds and the fixation of the interval of 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 fetha­

bai

(') 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 subject-

matter 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 Govern-

ment could

fix and similarly, the interval of instal-

ments 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.

1

,). .

I

S.C.R SUPREME COURT REPORTS 955

.more oppositely determine in exercise of its rule-mak-

mg power. It cannot be said in this case that any

essential legislative power has been delegated to the

executive or

th.at the legislature did not discharge the

trust which the Constitution had reposed in it.

If the

rule-making authority

abuses its power or makes any

attempt to make the payment illusory, the expropriat-

ed 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. Chaudhury 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,

t~refore, 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

a~sessment of compensation enacted in the Land

Acquisition Act only apply to acquisitions 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

· 1952

The State of

Bihar

. v.

Maharaia­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Mahajan/.

1952

The Stau of

Bihar

v.

Maharaia­

dhiraia Sir

Ka111eshwar-

Singh of Darbhanga

and Others.

Mahajan/.

956 SUPREME COURT REPORTS [1952]

articles. Similarly, I cannot but regard

as un-

substantial 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

iis 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

to this

poiint 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 m three

cases,

Noo. 326, 337, and 344 of 1951, urged that as regards

trust properties,

the Bihar legislature had no power

to acquire them without payment

of full compensa-

tion

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 329 of 1951, raised a novel point that the

Act not being reasonable and just, the Supreme

Coun ·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.

307, 313, 315,

320, 321, 322 and 331 and Petition No. 612 of 1951

merely adopted the points urged by Mr. P. R. Das.

f

The result is that the provisions o f the Bihar Land

Reforms Act contained in sections 4(~) and 23(f) are

held not constitutional.

The rest of the Act is good.

The appeals 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.

Jo. •

.,.

S.C.R. SUPREME COURT REPORTS 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 accordingly allowed.

I will make no order

as to costs

in any of these appeals

and petition.

MuKHERJEA J.-1 had the advantage of going care-

fully 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 unconstitutional, 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) 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

exer-

cise its powers under entry 42 of the Legisla-

tive List III

in

Schedule VII of the Constitution,

in reality i:t is a colourable exercise of that power

under which a thing has been done wliich

is

not contempleted 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 un-

constitutional

as it does not disclose any public pur-

pose at all. The requirement of public purpose . is

implicit

~ 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

:irticle 31 (2) of the Constitution and

although the enactment in the present case fulfills

the requirements

of clause (3) of article 31 and as

1952

The

State of

Bihar

v.

Maharaja­

dhiraja Sir

Karneshwar

Singh

of Darbhangrr

and Others.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kanieshwar Singh

cf Darbhanga

and Others.

Mukherjea /.

958 SUPREME COURT REPORTS [1952]

such attracts the operation of clause (4) of that

article, my learned brother has takien the view that

the bar created ·by cleause ( 4) is confined to the ques-

tion 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

con-

sequently tl1e 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 tl1e 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

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 explanation attached to the

clause further provides that for purposes of the

clause the expre"ion "arrears of rent" shall include

arrears in respect of which suits were pending

on the date of vesting 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" lo of these arrears of rent are directed

to

be added to the amount of compensation money

payable for the estate or interest calculated in accord-

JP

ance with the provisions of the Act.

f '

..

S.C.R. SUPREME COURT REPORTS 959

The arrears of rent whether merged in decrees or

not,

whic.h were due to the landlord for a period

ante-

rior 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 con..:cdcd by the learned Attorney-General that article

31-A of the Constitution has no application so far as

these arrears of rent are concerned. The arrears of rent,

therefore, are the subject-matter

of separate and

indi-

pendent acquisition i1nrler the Rih:i.r I,,~nd Reforms

Act, if the word "acquisition" can at a11 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

Statt: and constitutional provisions do not confer this

power though they generally surround it with safe-

guards. The restrains invariably are that when pri-

vate property is taken, a pecuniary compensation must

be paidC

1

). Thus eminent domain is an attribute of

sovereign power supposed to be tempered by a princi-

ple of natural law which connects its exercise with a

duty of compensation(2).

Possibly under the impression that the

sacredness of

private property should not

be confided to the

un-

certain virtues of the party in power for the time

being, the Constitution-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 referred to in

clause (3) of the article would be immune from judi-

cial scrutiny on the ground of inadequacy of the

(I) Vi de Cooley on Constitutional Limitations, Vol. II, p. 1110.

(2) Vide Encyclopaedia of Social Science, Vol. V, p. 493.

1952

The State of

Bihar

v.

Maharaia­

dhiraja Sir

Kameshwar

Singh

of Darbhanga·

and Others.

Mukhtriea f.

1952

The State of

Bihar

v.

Maharaja­

Jlziraja Sit

Kameshwar

Singh

of Darbhanga

and Others.

960

SUPREME COURT REPORTS [1952)

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

legis·

lative power conferred on the legislature by the

appropriate entries in the Legislative Lists and if the

legislature

acts outside these entries or, under the

pre-

tence 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

protec-

tion to such legislation.

Clause ( 4) (b) of the impugned Act read with the

provision of

section 24 of the same, empowers the

State Government to appropriate all the arrears

of

rent due to a landlord at a particular time and the

only obligation it casts on the Government in

this

respect is to allow 50"/o of the amount thus appro-

priated as sol'lllium for the so-called acquisition. On

the face of it the legislative provision purports to

have been made in exercise of the powers conferred on

the State legislature under entry 36 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 exer-

cise of what are known as powers of eminent domain

by the State, without giving him anything in ex-

change; 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

p_rinciples,

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 pro-

perty which the public needs may require and

which

the Government cannot lawfully appropriate

under

any other right, is subject to be

seized and

.;

1

,.. '

J

•

t

•

.S.C.R. SUPREME COURT REPORTS 961

~ppropriated under the right of eminent domain(').

Money as such and also rights in action arc 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 hand~ of a

citizen under the

exercise of its 'police' powers on the

ground that such fund

may be used for unlawful

pur-

poses 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 eompc"'ated by money afterwards could be nothing

mor-e or less than a forced loan and it is difficult to

say Stat it comes under the head of acquisition or re-

quisitioning of property as described !n entry 36 of

List II and is embraced within its ordinary connot-

ation.

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 altogether(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

Qr~vid­

ing for compensation in respect of such acquisition the

legislature has made a colourable

use of entry

4:l oi

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

( l) Sec Cooley on Constitutional Limitations, Vol. II, p. 1113.

(2) Cooley, Vol. If\ p. 1118; Willis on Constitutional Law, p. 816.

(3) Vidc Cooley on Constitutional Limitations, Vol. II, p.1118,F. N.

124

1952

T lie State of

Bihar

"·

Malioraja-

tlhiraja Sir

Kameshwar

Singh

of Darbhanga

a11d Others.

MuJc/1erjea [.

1952

The State of

Bihar

v.

Maharaja­

dhiraia Sir

Kameshtuar

Singh

of Darbhanga

and Others.

Mukherjea

/.

%2 SUPREME COURT REPORTS [19521

determined, and the form and the manner m which

such compensation

is to be

given". This is a descrip-

tion of legislative 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 propriety

of the principles upon which the

assessment of compensation

is to be made under a

parti-

cular 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 pro-

vide 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

dis-

guise, the net result of the impugned provision is that

it would be open to the State Government to appro-

priate 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 disguised. The impugned

provision, therefore, in reality

does not lay down any

· •

principle for determining the compensation to be paid

for acquiring the arrears of rent, nor

does it say

any-_

thing 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

in­

operative. The learned Attorney-General has con-

tended that it is beyond the compentency 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

legis-

lature is omnipotent, tl:;i.e mqtives, which impel it to

enact a particular law, are absolutely irrelevant; arid

S.C.R. SUPREME COURT REPORTS 963

on the other hand, if it lacks competence the question

of motives

does not at all arise. But when a

legis-

latU.re 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

expense that it would have to undergo

in the matter

of realising these arrears. This would

mean that what the legislature 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

in-

tention 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 inter-

fere 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 novelty, the like

0£ 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.

(I)

See Lefroy on Canadian Constitution, pp. 79-80.

7-10 S. C. India/71

•

1952

The State ot

Bihar

v.

Maharaja-__ _

dhiraja Sir '

Kameshwar

Singh

of

Darbhanga

and

Others.

Mu/f..herjea /.

1952

The State of

Bikar

v.

Maharaja­

tlhiraja Sir

Kameshwar

Singh

flf Darbhanga

and Others.

Das/.

•

964 SUPREME COURT REPORTS [1952]

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 in-

to 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 Legis-

lature, 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

provi-

sions of the Act have been analysed and summai;ised 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 notification under section 1 (3) dated

September

24,

1950, bringing 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

requ1S1te

notice under section 80 of the Code of Civil Procedure

and prayed for a declaration that the Act

was

uncon-

stitutional and void and that their title to the pro-

perties 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

ques-

tions of intcroretation of the Constitution, the suits

and applications were placed before a Special Bench

'

S.C.R. SUPREME COURT REPORTS 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

uncon-

stitutional 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 Constitution" excluded article 14 at least in its

application

to the alleged inequality of compensation.

Article

31(4) is in these terms:-

"lf 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)."

. 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

Pradesh 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,

up-

held 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. Sections 4 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 31-A. the following article shall be inserted,

:i.nd shall be deemed always to have been inserted,

namely:-

1952

The State of

Bihar

v.

Maharaja-­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Das/.

1952

The State of

Bihar

v.

Maharaia­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Das/.

%6 SUPREME COURT REPORTS (1952}

3l~A. (1) Notwithstanding anything in the fore-

Saving of laws going provisions of this Part, no law

pro~i.ding for ac-providing for the acquisition by the

rqmsitton 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

Legislature 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

recdved his assent.

(2)

In this article,-

(a) the expression

"estate" shall, in i;elation to

any local area, have the same meaning

as that

expres-

sion or its local equivalent has1 in the existing law

relating to land tenures in force in that area, and shall

also include

any jagir, inam or mttafi 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 iterme<liary and any rights or privileges in

res-

pect of land revenue.

5. After article 31-A of the Con-

Insertion of new stitution as inserted by section 4, the

article 31-B. following article shall be inserted,

namely

:-

31-B. Without prejudice to the

generality of the provisions con-

Validation of

certain Acts and

Regulations.

tained in article 31-A, none of the

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

inconsistent with, or takes away or abridges any of

the rights conferred

by, any provisions of this

Part,

I

..

S.C.R. SUPREME COURT REPORTS 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

rubstantive parts of our Constitution. Article 31-A

relates back to the date of the Constitution and

article

31-B to the respective dates of the Acts and

Regulations 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 con-

sideration in disposing of these appeals.

Learned counsel appearing for the respondents

accept the position that

as a result of the con-

stitutional amendments tl1e impugned Act has

been removed from the operation of the provisions

of

Part III of the Constitution including article 14

and that the respondents cannot, therefore, complain

of the breach of the equal protection of the

laws under

arcicle

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 provisions 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

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Das/.

1952

The State of

JV¥!El

v.

Maharaja­

t!hiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Das/.

968 SUPREME COURT REPORTS [1952]

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 acqui-

sition of the zamindaries and tenures.

B. Even if the Court does not accept the correct-

ness 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 challenge the Act on the ground that

the proposed

acquisition is not for a public purpose.

C. The Act constitutes a fraud on the Constitution,

tllat

is to say, while

it purports to be in conformity

with the Constitution it, in fact, constitutes a definance

of it.

D.

The Act is unenforceable 111 that section 32(2)

provides for payment of compensation in

40 equal

instalments' without specifying the period

of interval

between the instalments.

E.

The Act delegated essential legislative functions

to the executive Government.

The heads of objections

Mr. P. R. Das apparently look

necessary, therefore, to consider

the arguments advanced

by him

of them.

thus formulated

by

formidable and it 1s

with close attention

in support of each

Re Ground A : That article 31 (2) imposes upon a

law for the compulsory acquisition of private

pro-

perty the obligation to provide for compensation and

that such obligation

is, therefore, a provision of article 31(2) is not challenged. 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 valid-

ity 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 31(2) but that it is also

provided for in other parts of the Constitution and

..

-

S.C.R. SUPREME COURT REPORTS 969

that, in so far as such obligation is found provided

elsewhere, the impugi:ed 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 Constitution, for that ground of

challenge has not been taken away by articles 31 ( 4),

31-A and 31-B, by reason of the delimiting 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.

Autho-

rity for this: proposition is to be found in Blackstone's

Commentary (Broom's Edn.)

p. 165 and in Cooley's C,onstitutional Limitations, 8th Edn., Vol. II, p. 1201,

Footnote (3). 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 com-

pulsory acquisition

of private property without a

pro-

vision for payment of just compensation, i.e., its

equivalent value

in money. That the obligation to

pay just compensation for compulsory acquisition of

private property

is a principle of natural equity

re-

cognised 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 connected with the other that

they

may be

siaid to exist, not as separate and distinct

principles but,

as parts of one and the same principle

are well-established

by a series of decisions of the

American courts quoted

by Harlan J. in Chicago,

Bur­

linghton and Quincy. Railroad Company v. Chicago(1).

In England Lord Dunedian in Attorney-General v.

De Keyser's Royal Hotel Ltd.(2), described the obli-

gation

to pay compensation as

"a necessary con-

comitant to taking". It follows, therefore, that the

obligation

to pay compensation is inseparable from

and

is implicit in the power of acquisition. This obli-

(1) 166

U.S. 216; 41 L. Ed. 979. (2) [ 1920] A.C. 508.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Das f.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Das/.

970 SUPREME COURT REPORTS [1952]

gation flows ftom the mere use of the word "acquisi-

tion" in entry 36 in List II, as in entry 33 in List I.

That word, by itself, according to Mr. P. R. Das, con-

notes 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 obligation 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

conclud~ng words\ Mr. P. R. Das says, import

the obligation to provide for compensation

as provided

in entry 42 in List III into entry 36 in

I)st II and

thereby enlarge the content of the last mentioned

· entry so as to make it a legislative head comprising

\he compound concept referred to above. The third

alternative 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 !Ii" do not import that obligation as stated

above, entry 42 in List III should, nevertheles~, 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

law-

making power under entry 42 in List III must, on the

principle laid down

by the House of Lords in

/ulus

v. Lord Bishop of Oxford(') and adopted

by this Court in Chief Controlling Revenue

Autho­

rity v. Maharashtra Sugar Mills Ltd.('), also be exer-

cised. 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 m

( 1) L.R. 5 App. Cas. 214. (2)

[1950] S.C.R. 536.

...

S.C.R. SUPREME COURT REPORTS 971

List II but not having made any law laying down any

principle 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 deve-

loped by Mr. P. R. Das undoubtedly have the merit

of attractive ingenuity and apparent

cogency and

certainly call for

very careful consideration.

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

leg~slation for land reforms and

alteration of land tenures. It

is pointed out that the

Act eliminates the interests

of all zernindars and in-

termediate 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.

Re-

ference is made to the cases of The

United Province;

v. Mst. Atiqa Begum and Others('), Thakur /agannath

Baksh Singh v. The United Provinces(2) and Megh Raj

-and Another v. Allah Rakhia and Others(8) 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

possible so as to in-

clude all ancillary matters. This lien

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 acquisition 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

Ht and entry 36

in List II the former should be read as a legislative

(1) [1940] F.C.R. 110 at p. 134. (3) [1947] F.C.R. 77.

(2) [1946] F.C.R. 111 at p. 119.

•

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Das/.

1952

The Stat• of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and

Others.

Das/.

972 SUPREME COURT REPORTS [1952]

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

la~ for acquisition of

the arrears of rent cannot possibly

be said to be a

law with respect to matters specified

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 agree-

ment 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 con-

comitant

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 obligati'on

is implicit in the term

"acquisi-

tion" as used in entry 36 in List II, or in other words

whether this obligation

is to be inferred simply from

the

nse of that term as a part of the content or mean-

ing thereof. In Attorney-General v. De Keyser'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

pay-

ment 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, therefore, the Crown, which

is

an assenting party to every statute, must, in effect, be

regarded

as having consented to the exercise of its

prerogative being made subject to payment of compen-

sation 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

•

..

-

•

•

.,

S.C.R. SUPREME COURT REPORTS 973

the United States by any provision of the Federal

Constitution, but this power

has always been

recog-

nised to exist as an inherent attribute of the

sovereignty

of the State. So far as the United States

are concerned, the Fifth Amendment

by providing

that private property shall not

be taken for public use

without just compensation gave a constitutional

recog-

nition 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 com-

pensation 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 expression "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 obli-

gation implicit in entry 36 in List II and the two

entries are complementary to

each other. If this

obli-

gation were not implicit in entry 36 in List II then

where

else, it is asked, is the obligation to pay compensation to be found ? The obvious answer is

that 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 acqui.sition circumscribed

by

the· obligation

to provide for compensation. Thus in section

31

(XXXI) of the Commonwealth of Australia

Constitu-

tion 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 sim-

pliciter but is to make a law for the acquisition of

property on just terms which connotes that the legis-

lative power itself is circumscribed by the necessity

for providing just terms. But there

is no overriding

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kam~shwar

Singh

of Darbhangt¥

and Others.

Das/.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhan ga

and Others.

Das].

974 SUPREME COURT REPORTS [1952]

necessity of constitutional law that I know of, or that

has been brought to our notice, which requires that

the obligation 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

Con-

stitution ? We find that under article 246 Parliament

has exclusive power to make laws with respect, inter

ulia, to matters specified in entry 33 in List I, namely,

"acquisition or requisitioning of property for the pur-

poses of the Union, that the State Legislatures have

exclusive power to make laws with respect,

inter

alia, to matters specified in entry 36 in List II, namely,

the

"acquisition or requisitioning of property except

for the purposes of the Union subject to the provision

of entry

42 of

List III" and that both Parliament and

the State Legislatures 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 Legis-

latures is, by article 245, made "subject to the provi-

sions of this Constitution." One of the provil;ions 0f

the Constitution is article 31 (2) under which no pro-

perty can 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 and either

fixes the amount of compensation or specifies the

principles on which, and the

mam:1er 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

obligation of such law to provide for compensation

in

article 31 (2) and the power of making a law laying

down the

· principles for determining such compen-

sation in article

246 read with entry 42 in List III.

'

...

•

..

,

f.

S.C.R. SUPREME COURT REPORTS 975

According to this scheme it is not necessary at all

to regard entry

33 in

List I and entry 36 in List II,

which are mere heads of legislative power, as contain-

ing within themselves any obligafion 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 f acit cessare tacit um 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

impo.i;.ted 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 £or reading any such impli-

cation

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 a~tracted and

made a part and

pared 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 l.n entry 33 in List I and this pan of

Mr. P. R. Das's argument would lead to this anomal-

ous 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

attractedt

and made part of the legislative power under entry 33

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 Legislatures, will

not be bound to provide for any compensation at all.

This cannot possibly be the intention of the framers

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and

Others.

Das f.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Das/.

976 SUPREME COURT REPORTS [1952]

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

uo 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 subject-

matter

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" occurring 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 well be argued

that, in view of article

246,

. Parliament will not

be competent to maintain law with respect to

principles on wh'ich compensation

is to be deter-

mined.

It is in order to prevent this argument

and out

of

aqundant caution that -the subject-

matter

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 obliga-

tion

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 Legisla-

ture to make a law also

with respect to matJters speci-

fied in entry 42 in List III on the principles that as

•

•

. ...,

•

•

S.C.R. SUPREME COURT REPORTS 977

entry 42 in List III confers a power on the Legisla-

ture for the protection of the interest of persons; whose

property is compulsunly acquired, such power must,

therefore,

be regarded as coupled with a duty to

exer-

cise it. No authority has been brought to our notice

establishing or

even suggesting that the principle laid ·dawn 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 obli-

gatory 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, impo~e 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

com-

pensation and either to fix the amount thereof or

specify the principles on which and the manner in

which the compensation

is to be determined and given

is the provision of art'icle 31 (2). Entry 42 in List III

only constitutes a legislative head under which

Parlia-

ment or the State Legislatures may make a law so as

to give effect to the obligation expressly imposed on

them by article 31 (2). In view of the clear provision

of that article it is wholly unnecessary to read entry

42 in List III as imposing an implied duty on the

Legislature

on the principle referred to in the

Hoose

of Lords case.

That the obligation to provide for compensation is

not included in the content of the legislative power

u_nder 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

descrip-

tion mentioned therein against the provisions. of

article 31 (2). It follows, therefore, that what is sought

to

be protected by article 31 (4) is a law for the

acqui-

sition or taking possession of property which does not,

amongst other things, pro-ifide for compensation or

126

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Das/.

1952

The State of

Bihar

v.

Maharaia­

dhiraia Sir

Kameshwar

Singh

of Darbhanga

and Others.

Das/.

978 SUPREME COURT REPORTS [1952]

does not fix the amount or specify the principles on

which and the manner in which the compensation

is

to be determined 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 II under which a law for acquisition or

taking

possession of property without compensation can be

made by a State Legislature. To test the validity of

Mr.

P. R. Das' s argument and to avoid the complica-

tion 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

otf 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

pub!'ic purpose ? Obviously there is

none, except entry 36 in List II. If that entry by it-

self or read with entry 42 in List III has any impli-

cation

as suggested, namely, that a law for

acquisition

of property made under entry 36 in List II without a

provision for compensation wiJll be beyond the legis-

lative compentency 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

prOIVision in article 31(4) for

protecting, against article

31(2), a law which, on this

hypothesis, cannot

be made at all. Article 31(4) postu-

lates 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 made by the

State Legislatures. This cir-

cumstance unmiistakabRy establishes thait entry 36 in

List II, by itself or read with entry 42 in List III, ha.s

not any such implication as is imputed to it. Likewise .

tak:e article 31(5) (b) (ii) which protects the provi-

sions 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 wh'ich is thus

sought

to be protected must also involved acquisition

of property without any provision. for

· compe~sation,

for otherwise there can be no occas10n or necessity for

•

"·

•

-

•

S.C.R. SUPREME COURT REPORTS 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 Legis-

lature, 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 compensation, which

is what

is sought to be protected from article 31 (2), can never

be made, for the obligation to provide for compensa-

tion

is, according to him, implicit 'in entry 36 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 acquisi-

f1on of property. It is futile to attempt to get over

this anomaly

by suggesting 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 hypothesi, 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 Constitution.

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

pro-

vide for compensation then a law made conformably

with this supposed requirement of that entry

by a State Legislature will require no protection ar all

agalnst 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 List II by

itself or read

wiith entry 42 in list III is unsound.

8-10 S. C. lnida/71

1952

The State of

Bihar

v.

Maharaia­

dhiraia Sir

Kameshwar

Singh

of Darbhanga

and Others.

Das/.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga and Others.

1

Das/.

980 SUPREME COURT REPORTS [1952]

The obligation to provide for compensation being, as

I hold, a provision of article 31 (2) and not being im-

plicit m 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 article 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

a~ 'de 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 respo!ldents cannot, even

then,

be permitted to call in question the validity of

the impugned Act on the ground that it does not

pro-

vide for compensation, for then they will be doing

exactly what they

are forbidden to do by article 31

(4) and the newly added articles. Article 31 (4) and the

added articles debar the respondents from questioning

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.

TIJils obliganbn to provide for compen-

sation is no doubt one of the provisions of articles 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 "prorvision" must also be regarded

as having been covered by article 31 ( 4) and the two

added articles, for otherwise those articles will be ren·

dered nugatory. In my opinion, if two construc-

tions are possible, the Court should adopt that· which

•

..

•

•

S.C.R. SUPREME COURT REPORTS 981

will implement and discard that which will stultify

the apparent intention of the makers of the Con-

stitution. Further, it must be borne in mind that

article

31 ( 4) which applies "notwithstanding any-

thing in this Constitution'', will,

by force of the very

words, protect the Act against

everi legislative in-

competency, if any arising out of the alleged non-

compliance 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

~s 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 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 compen-

sation. Shortly put, the scheme is to start with the

gross

assets which are taken to be synonymous with

the gross income and then

to make certain deductions

therefrom and

to arrive at the net assets. Then the

compensation

is to be calculated at a sliding scale 0£

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 arrears of rent

etc. and the com-

pensation for the mines and minerals as determined

under section

25. Ex f acie, it cannot be disputed that

the Act

does prescribe some principles for determin-

ing the compensation payable to the proprietor

c.r

tenure-holder. It is, however, pointed out that the

deduction 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 per-

centage 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 per-

cent.

of the gross assets in the case of proprietors

1952

The State •f

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanz11

and Others.

DRs /.

1952

The State of

Bihar

v.

Maharaia­

dhiraia Sir

Kameshwar

Singh .

of Darbhanga

and Others.

Das/.

982 SUPREME COURT REPORTS [1952]

of the larger estates but only 5 per cent. in the

case of the smaller estates. Objection is next taken

to the deduction 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

minct,

do not, on close scrutiny, amount to saying tha::

the Act does not lay down any principle for determin-

ing 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 deducion under

this head and under the head

of works of benefit

according to the capacity of the proprietor or

tenure-

holder 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.

There-

fore, 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

prac-

tice, spend under this head. I see no absence of

principle in this provision.

The

rate of deduction, I

have said, has been

fixed according to the capacity

of the proprietors or tenure holdens. 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 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

barbhanga estate

is about Rs. 47,85,069, the deduction

•

j •

•

..

S.C.R. SUPREME COURT REPORTS 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

comes to about Rs. 2,96,484 or say

Rs. 3

· lacs and the compensation 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., iu 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

thi~ 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 pro-

visions of entry 42 in List III are amply satisfied and

no question of legislative incompetency can arise. If

a principle has beeh 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

aga·1nst the

provisions of article

31 (2) but certainly 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-com-

pliance with article 31 (2). On the other hand, even

if i;t 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 provi-

sions of article 31 (2) which clearly and emphatically re-

quires 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

1952

The State of

Bihar

v •

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Das/,

1952

. The State of

Bihar

v.

Maharaja­

tlhiraja Sir

Kameshwar

Singh

•f Darbhanga

•nd Others.

D"' /.

984 SUPREME COURT REPORTS [1952]

anything in this Constitution" occurring therein

will also protect the Act even against the alleged

legislative incompetency arising out of the non-

compliance with all provisions of the Constitution

relating to the payment of compensation or the exist-

ence of a public purpose including the supposed re-

quirement 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

notifi-

cation under that section only refers to the vesting of

the estates or tenures in the State. It is, however, to

be noticed that the consequeunce of issuing that notifi-

cation 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 proprietors or tenure-

holders 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.

On the authority of a passage in Willis' Constitu-

tional 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

un-

usual 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, an<l the case of Cincinnati

•

; •

·-

y

•

\.

-

S.C.R. SUPREME COURT REPORTS

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

to consider whether arrears of rent are "property" in

the sense m which that expression ts used in our

Constitution and understood m 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-

perty" which is assignable. Therefore, it can equally

be acquired by the States as a species of "pro-

perty."

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 m connection

with the taking of the estates or tenures and

also

the taking of mines and minerals but not in con-

nection with the fifty per cent. of the arrears of

rent which are directed to

be added to the compen-

sation. But this

prov1S1on for adding the fifty per

cent. of the arrears also appears

in the chapter headed "Assessment of Compensation" and, therefore, the

fifty per cent.

of the arrears ts added m the process

of the assessment of the compensation. Further,

why is

this: fifLY per cent. given to the proprietors or

tenure-holders at all unless it were for compensation?

It ts 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 contri-

vance only takes away thet other 50,000 rupees for

nothing. This argument sounds plausible at first but

is not founded on any good principle. This argument

arises only because a moiety js paid back, as it were,

m the same

com. If compensation for money were

made,

say, by g1vmg 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.

1~7

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Das/.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Das].

986 SUPREME COURT REPORTS [1952]

•

i

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 prevailed 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

d~bt 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 in-

volving time and money in

costs.

Part of it, quite

conceivably, may not

be realised at all. Therefore, the State 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 principle 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 ex-

plained above.

•

Re Ground B: The second point urged by Mr. P.R. '\

Das is that even if the Court does not accept the argu-· .

ment

as to the necessity for providing for compensation

>

"

..

S.C.R. SUPREME COURT REPORTS 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 compen-s.i.tion 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 pur-

pose

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 neces-

sity for the existence of a public purpose as a condi-

tion precedent to compulsory acquisition

of private

property

is not a

"provision" 0£ articl\! 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 article 31 (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 compensa-

tion. It

is, therefore, concluded that the only

"pro-

vision" of article 31 (2) is that the law autho-

rising 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 judg-

ment 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 acquisition can be for public purposes only ; it

<loes so by necessary implication."

(I) A.I.R. 1950 Pat. 392.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga .

and Others.

Das/.

1952

The State of

Bihar

v.

Maharaia­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Das/.

988 SUPREME COURT REPORTS l1952]

The learned Judge then refers to the following

passage in the judgment

of my learned brother

Mukherjea

J. in Chiranjit Lal Choudhury v. The

Union

of India & Others(') :-

"Article 31 (2) of the Constitution prescribes a ·two-

fold limit within which such superior right of the

State should . be exercised. One limitation imposed

upon

the acquisition of 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 argument of

Mr.

P. R. Das that the existence of a public purpose is

not a provision of article 31 (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 Emit which is "prescribed" by the

articles must

be a provision

· thereof. In any case,

what is implied in the clause must, nevertheless,

be a provision of the clause, for the expression

"provision" is certainly wide enough to include

an implied

as well as an express prov.1S1on. Be

that as it may, I am prepared to go further and say, fur reasons I shall presently explain, that the require-

ment of a public purpme as an essential prerequisite

to compulsory acquisition

is, if anything, essentially a

provision

of tha.t clause and an integral part of it.

Article 31 is one of a group of articles included in

Part III of

tl1e Constitution under the heading

"Funda-

mental Rights". It confers fundamental right in so

far as it protects private property from State action.

Ch use (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.

•

'

•

•

•

S.C.R. SUPREME COURT REPORTS 989

show that this immunity is a limited one and this will

at once

be clearly perceived if we convert the negative

language 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

property. 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 (2)

is worded

'm negative 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 i' the measure of the fundamental right.

Clause (2) of the article, in

its positive form, omitting

words unnecessary for our present purpose,

w

1

11l read

as follows :-

"Any property, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . may

be taken possession of or acquired for public purposes

under any law auhorising the taking of such

possession or such acquisition if the law provide 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 limitations 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 (3) that the law must provide for compensation

1952

The State of

Bihar

v .

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and

Others.

Das/,

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Das/.

990 SUPREME

COURT REPORTS [1952)

for the property so taken or acquired. These three

limitations constitute the protection granted to the

owner of the property and

is the measure of his

funda-

mental right under thi; clause. Unless these limita-

tions 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 pur-

pose 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 require-

ment of a public purpose were not a provision of

article

31 (2), then it will obviously lead us to the

un-

tenable 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 ac-

quiring private property without any public purpose

at

all and to the still more absurd result that while

Parliament will have to provide for compensation

under article

31 (2) in a law made by it for acquisitio•

of property for a public purpose

it will not have to

make any provision for compensation in a law made

for acquisition

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 condition 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 articles

31 (4), 31-A

and 31-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 re-

quirement 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

com-

petency under those two entries to enact the impug-

ned Act and that this ground of attack, is still available

•

•

•

1

•

•

•

,

S.C.R. SUPREME COURT REPORTS 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 I. It would, there-

fore, follow that whereas under entry

36 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

compulisory acquisition of property for a public pur-

pose, Parliament may, under entry 33 in Llst I which

does 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 intend-

ed 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 legisla-

tive head, are the principles for the determination of

compensation and the form and manner of giv'ing

the compensation for property which

is described

as having been

acquired· or requisitioned 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

1952

The State of

Bihar

v

•

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and

Others.

Das/.

1952

The State of

Bihar

v.

Maharaja­

dhiraja Sir

Kameshwar

Singh

of Darbhanga

and Others.

Das].

992 SUPREME COURT REPORTS [1952]

acqms1t10n of any property. In my opm10n 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 compensation being implied in entry

36 in

List II

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

pro-

visions of article 31 (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 II and entry

42 111 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

"pro-

vision" 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

acquisi-

tion 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 article 31 (4) which

contain the words "notwithstanding anything in this

Constitution" will protect the Act from such implied

prov!S!on, for reasons I have already explained.

Mr. P. R. Das's second main point must accordingly

be rejected