No Acts & Articles mentioned in this case
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 59
PETITIONER:
THE STATE OF WEST BENGAL .
Vs.
RESPONDENT:
SUBODH GOPAL BOSE AND OTHERS.
DATE OF JUDGMENT:
17/12/1953
BENCH:
SASTRI, M. PATANJALI (CJ)
BENCH:
SASTRI, M. PATANJALI (CJ)
MAHAJAN, MEHR CHAND
DAS, SUDHI RANJAN
HASAN, GHULAM
JAGANNADHADAS, B.
CITATION:
1954 AIR 92 1954 SCR 587
CITATOR INFO :
E 1954 SC 119 (1)
RF 1954 SC 282 (13)
R 1954 SC 728 (25)
R 1955 SC 41 (6)
R 1955 SC 604 (19)
RF 1955 SC 781 (11)
RF 1956 SC 246 (65)
E&D 1957 SC 599 (24)
D 1957 SC 832 (25)
R 1958 SC 328 (9,10,11,34)
F 1958 SC 578 (170)
F 1958 SC 731 (21)
R 1959 SC 308 (6)
D 1959 SC 648 (38)
D 1960 SC1080 (22,27,28)
RF 1961 SC1684 (28,29)
E 1962 SC 263 (24)
D 1962 SC 458 (24)
RF 1962 SC1006 (67,72,78)
RF 1962 SC1781 (20)
C 1963 SC 864 (25,27)
R 1963 SC1019 (13,14)
RF 1963 SC1667 (11)
R 1965 SC 190 (4)
R 1967 SC 856 (9)
F 1967 SC1643 (179,227)
RF 1968 SC 394 (10,18)
RF 1969 SC 634 (33,35,38)
RF 1970 SC 564 (54,55,151,200)
R 1971 SC1594 (9)
RF 1973 SC1461 (310)
R 1978 SC 215 (68)
R 1978 SC 597 (189)
R 1978 SC 803 (35)
RF 1979 SC 248 (10)
E 1980 SC1042 (110)
E&R 1987 SC 180 (9)
F 1989 SC1629 (15)
F 1990 SC1927 (61)
RF 1992 SC1256 (14)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 59
ACT:
Constitution of India, arts. 19 (1)(f) & 31--Scope
of Correlation between art. 19 (1) (f) and art. 31--Clauses
(1) and (2) of art. 31, whether mutually
exclusive--"Deprivation"--"Acquisition"--"Taking possession
of"--Meanings of--Bengal Land Revenue Sales (West Bengal
Amendment) Act, 1950 (West Bengal Act VII of 1950), s.
7--Whether ultra vires art. 19 (1) (f) and an. 31.
HEADNOTE:
The first respondent B purchased a Touzi in 24-
Parganas Collectorate at a revenue sale held on 9th
January, 1942. As such purchaser he acquired under s.
37 of the Bengal Revenue Sales Act, 1859, the right "to
avoid and annul all under-tenures and forthwith to eject
all under-tenants" with certain exceptions which are not
material here. In exercise of that right he gave notices
of ejectment and brought a suit in 1946 to evict certain
under-tenants including the second respondent herein
and to recover possession of the lands. The suit was
decreed against the second respondent who preferred an
appeal- to the District Judge, 24-Parganas, contending that
his under-tenure came within one of the exceptions
referred to in s. 37. When the appeal was pending, the
Bill which was later passed as the West Bengal Revenue
Sales (West Bengal Amendment) Act, 1950, was introduced in
the West Bengal Legislative ASsembly on 23rd March,
1950. It would appear, according to the "statement of
objects and reasons" annexed to the Bill, that great
hardship was being caused to a large section of the people
by the application of s. 37 of the Bengal Land Revenue
Sales Act, 1859, in the urban areas and particularly in
Calcutta and its suburbs where "the present phenomenal
increase in land values has supplied the necessary
incentive to speculative purchasers in exploiting this
provision (section. 37) o/the law for unwarranted large
scale eviction" and it was, therefore, considered necessary
to enlarge the scope of protection already given by the
section to certain categories of ,tenants with due
safeguards for the security of Government revenue.
The Bill was eventually passed as the amending Act and
it came into force on 15th March, 1950. It
substituted by s. '4 the new s. 37in place of the
original s. 37 and it provided by s. 7 that all
pending suits, appeals and other proceedings which had not
already resulted in delivery of possession, shall abate.
Thereupon B contending that s. 7 was void
588
as abridging his fundamental rights under art. 19(1)(f) and
art. 31 . moved the High Court under art. 228 to
withdraw the pending appeal and to determine the
constitutional issue raised by him. The appeal was
accordingly withdrawn and the case was heard by Trevor
Harries C.J and Banerjee J. who, by separate but
concurring Judgments, declared s. 7 unconstitutional
and void. They held that B's right to annul under-tenures
and evict undertenants being a vested right acquired by him
under his purchase before s. 37 was amended, the
retrospective deprivation of that right by s. 7 of the
amending Act without any abatement of the price paid
by him at the revenue sale was an infringement of his
fundamental right under art. 19 (1)(f) to hold property
with all the rights acquired under his purchase, and as
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 59
such deprivation was not a reasonable restriction on
the exercise of his vested right, s. 7 was not saved
by cl. (5) of that article and was void. The State of
West Bengal preferred the present appeal to the Supreme
Court:
Held, per PATANJALl SASTRI C.J.--Article 19 (1) (f)
has no application to this case. The word "hold" in the
article means own. The said sub-clause (f) gives the
citizen of India the abstract right to acquire, own and
dispose of property. This article does not deal with the
concrete fights of the citizens of India in respect of
the property so acquired and owned by him. These concrete
rights are dealt with in art. 31 of the Constitution.
Under the scheme of the Constitution all those broad and
basic freedoms inherent in the status of a citizen as
a free man are embodied and protected from invasion by the
State under cl. (1)of art. 19, the powers of State
regulation of those freedoms in public interest being
defined in relation to each of those freedoms by cls. (2)
to (6) of that article, while rights of private property are
separately dealt with and their protection provided for
in art. 31, the cases where social control and
regulation could extend to the deprivation of such rights
being indicated in para. (ii) of sub-clause (b) of cl. (5)
of art. 31 and exempted. from liability to pay compensation
under cl. (2).
Held, per PATANJALI SASTRI C.J. (MEHR CHAND MAHAJAN'
and GHULAM HASAN JJ. concurring)--(i) Article 31 protects
the right to property by defining the limitations on the
power of the State to take away private property without the
consent of the owner. Clauses (1) and (2) of art. 31 are
not mutually exclusive in scope and content, but should
be read together and understood as dealing with the same
subject, namely the protection of the right to property
by means of limitations on the State's power referred to
above, the deprivation contemplated in clause (1) being no
other than the acquisition or taking possession of the
property referred to in cl. (2).
The words "taking of ........ possession or .... ....
acquisition" in art. 31(2) and' the words "acquisition or
requisitioning" in entry
589
No. 33 of List I and entry No. 36 of List II as also
the words "acquired or requisitioned" in entry No. 42 of
List III are different expressions connoting the same idea
and instances of different kinds of deprivation of
property within the meaning of art. 31(1) of the
Constitution.
No cut and dried test can be formulated as to whether
in a given case the owner is "deprived" of his
property within the meaning of art. 31; each case must be
decided as it arises on its own facts. Broadly speaking
it may be said that an abridgement would be so substantial
as to amount to a deprivation with in the meaning of art.
31, .if, in effect, it withheld the property from the
possession and enjoyment of the owner, or seriously
impaired its use and enjoyment by him or
materially reduced its value . The expression
"taking possession" in art 31(2) of
the Constitution can only mean such possession as the
property
taken possession of is susceptible to and need not be
actual physical possession.
'
(ii) It is difficult to hold that the abridgement
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 59
sought to be effected retrospectively of the rights of a
purchaser at a revenue sale is so substantial as to amount
to a deprivation of his property within the meaning of
art. 31(1) and (2). No question accordingly arises as to
the applicability of el. 5(b)(ii) of art. 31 to the
Per DAs J.--(1) The abridgement of the rights of the
purchaser at a revenue sale brought about by the new s. 37
amounts to nothing more than the imposition of a
reasonable restriction on the exercise of the right
conferred by art. 19(1)(f)in the interests of the general
public and is perfectly legitimate and permissible under
cl. (5) of that article. It is well-settled that the
statement of objects and reasons is not admissible as an
aid to the construction of a statute but it can be referred
to only for the limited purpose of ascertaining the
conditions prevailing at the time which actuated the
sponsor of the Bill .to introduce the same and the extent
and urgency of the. evil which he. sought to remedy. Those
are matters which must enter into the judicial verdict
as to the reasonableness of the restrictions which art.
19(5) permits to be imposed on the exercise of the right
guaranteed by art. 19(1)(f).
(II) The correlation between art. 19(1)(f) and art. 31
is that if a person loses his property by reason of its
having been compulsorily acquired under art. 31 he loses
his right to hold that property and Cannot complain
that .his fundamental right under art. 19(1)(f)has been
infringed. The rights enumerated in art. 19(1) subsist
while the citizen has the legal capacity to exercise them.
A.K. Gopalan's case [1950] S.C.R. 88 and Chiranjit Lal's
case [1950] S.C.R. 869 referred to.
590
For the purpose of this appeal the. matter proceeds on the
footing that art. 19 relates to abstract right as well as
to right to concrete property. .
(III) The true scope and effect of cls. (1) and (2) of art.
31 is that cl. (1) deals with deprivation of property
in exercise of police power and enunciates the
restrictions which our Constitution makers thought
necessary or sufficient tO be placed on the exercise of
that power, namely, that such power can be exercised only
by authority of law and not by a mere executive fiat and
that cl. (2)deals with the exercise of the power of
eminent domain and places limitations on the exercise
of that power.These limitations constitute our
fundamental rights' against the State's power of eminent
domain.
(IV) Both these clauses cannot be regarded as
concerned only with the State's power of eminent domain,
because then-
(a) cl (1) would be wholly redundant, for the
necessity of a law is quite clearly implicit in cl. (2)
itself;
(b) deprivation of property otherwise than by taking
of possession' or acquisition of it will be outside. the
pale of constitutional protection:
(c) there will beno protection against the
exercise of police power in respectOf property either by
the executive or by the legislature.
Chiranjit Lals case [1950] S.C.R. 869 and The Bihar
Zamindari case [1952] S.C.R. 889 referred to.
(V) The State's police power is not confined--
(a) within the ambit of art. 19 forto say otherwise
,will mean:
(i) that there is no protection for any person,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 59
citizen or non-citizen, against exercise of police power
by the executive over property;
(ii) that although in cls. (2) to (6) there is
protection against' (iei) legislature in respect of
"restriction" there is no protection against
"deprivation"; or
(h) within d. (5) (b) of art. 31 because to say
otherwise will mean :__
(i) that the police power which is inherent in
sovereignty and does not require express reservation has
been unnecessarily defined and reserved;
(ii) that the Constitution does not prescribe any
test for the 'validity of the laws which fail within the
clause and, therefore, the law failing within the clause
may be as archaic, offensive and . unreasonable as the
legislature may choose to make it;
(iii) that the clause gives no protection against the
executive; (iv) that the exercise of the police power by
the legislature is confined within' the very narrow and
inelastic limits of the clause and that no beneficial or
social legislation involving taking
591
of property can be undertaken by the State if the law-falls
outside the clause except on terms of payment of
compensation;
(v) that acqUiSition Of property for which
compensation is Usually provided, e.g.; acquisition of
land for a public park, hospital Or z'dearing a slum
area will henceforth be permissible without the law
providing any compensation;
(VI) The argument that if art. 31(1) is read as a
fundamental right against deprivation of property by the
executive and art., 31(2) as laying down the Iimits of
State's power of eminent domain then there will be no
real protection. whatever, for the State will deprive a
person of his property without compensation by simply
making a law is not tenable because--
(i) there will certainly be protection against the
execute just as the 29th clause of the Magna Charts was a
protection against the British Crown;
(ii)"'there is protection under art. 31(2) against
the legislature in the matter of taking of possession Or.
acquisition for compensations to be given and under cl.
(5) of art, 19 against unreasonable' restraint:
(iii) the absence of protection against the
legislature in other cases is not greater than the absence
of protection against the legislature in respect of taxation
and if the legislature can be trusted in the latter case it
may equally he' trusted in the former case.
(VII) Every taking of a thing into the custody of
the State or its nominee does not necessarily mean the
taking of possession Of that thing within the meaning of
art 31(2) so as to call for compensation. The police
power is exercised in the interest of the community and
the power of eminent-domain is exercised to . implement a
public purpose and in both cases there is a taking of
possession of private, property There is however a marked
difference between the exercise of these two sovereign
powers. It is easy to perceive, though somewhat
difficult to express, the .distinction between the two
kinds of taking of possession which undoubtedly exists. In
view of the wide sweep of the State's police power it
is neither desirable nor possible to lay down a fixed
general test for determining whether the taking of
possession authorised by any particular. law falls within
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 59
one category or the other. Without, therefore, attempting
any such 'general enunciation of any inflexible rule it is
possible to say broadly that the aim, purpose and the
effect of the two kinds of taking of possession are
different and that . in each "case the provisions of. the
particular law in question" will have to'be carefully
scrutinised in order to determine in which category-'
falls the taking of possession authorised by such law. =
A consideration of the ultimate aim, the immediate
purpose ::and the mode and manner of the taking 'of
possession and, the duration".'for which such
possession ..is taken, the effect of' it '-on the rights of
'the person dispossessed and other such like elements must
all determine the judicial verdict.
592
(VIII) Treating the right to annul under-tenures and to
eject under-tenants .and decree for ejectment as
"property" as used in art. 31(2) the State has not acquired
those rights for there has been no transfer by agreement
or by operation of law of those rights from the
respondent B to the State or anybody else. The purchase
being at a Revenue sale to. which West Bengal Act VII of
1950 applies, the purchaser of the property has been
deprived of this right by authority of law and the case
falls within cl. (1) of art. 31 and no Within cl.
(2) of art. 31. If the impugned section is regarded
as imposing restrictions on the purchaser, such
restrictions in the circumstances of the case are quite
reasonable and permissible under article 19(5) and, in the
premises, the _plea of unconstitutionality cannot prevail
and must be rejected.
Pet' JAGANNADHADAS J.--(i) On the assumption that the
question raised in this case is one that arisesunder
art. 19(1)(f)and (5) of the Constitution, the impugned
section of the West Bengal Act VII of 1950 is intra vires
because the restrictions are reasonable within the meaning
of art. 19(5) of the Constitution;
(ii) that art. 19(1)(f) while probably meant to relate
tot he natural rights of the citizens comprehends within
the scope also concrete property rights. The restrictions
on the exercise of rights envisaged in art. 19(5) appear to
relate--normally, if not invariably-to concrete property
rights;
(iii) that cl. (1).of art. 31 cannot be construed as
being either a declaration or implied recognition of
the American doctrine of "police power".
It comprehends within its scope the requirement of
the authority of law, as distinguished from executive
fiat for the exercise of the power of eminent domain, but
its scope may well be wider. "Acquisition" and "taking
possession" in art. 31(2) cannot be taken as necessarily
involving transfer of tide or possession. The words or
phrases comprehend all cases where the title or possession
is taken out of the owner and appropriated without his
consent by transfer or extinction or by some other
process, which in substance amounts to it, the possession
in this context meaning such possession as the nature of the
property admits and which the law recognizes as possession.
(iv) In the context of art. 31(2) as in the cognate context
article 19(1)(f)--the connotation of the word
"property"is limited by the accompanying words
"acquisition" and "taking possession". In the present. case
the right to annul under-tenures cannot in itself be treated
as property for it is not capable of independent acquisition
or possession. The deprivation of it can only amount to a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 59
restriction on the exercise of the fights as regards the
main property itself and hence must fall under art.
19(1)(f) taken with 19(5).
593
. Butchers Union etc. Co. v. Crescent City etc. Co.,
(111 U.S. 746), Punjab Province v. Daulat Singh and Others
([1946] F.C.R. 1), Chiranjit Lal Chauduri v. The Union of
India and Others ([1950] S.C.R. 869), A.K. Gopalan v. The
State of Madras ([1950] S.C.R. 88), P.D. Shamdasani v.
Central Bank of India ([1952] S.C.R. 391), Ministry of
State. for the Army v. Dalziel (68 C.L.R. 261),
Pennsylvania Coal Co. v. Mahou (260 U.S. 322), Dwarkadas
Shrinivas v. Sholapur Spinning and Weaving Mills Ltd.
([1954] S.C.R. 674),' State of Madras v. V.G. Row ([1952]
S.C.R. 597), Ram Singh v. The State of Madras ([1951]
S.C.R. 451), State of Bihar v. Maharajadhiraja Kameshwar
Singh of Darbhanga ([1952] S.C.R. 889), Noble State Bank v.
Haskeli (219 U.S. 104), Eubank v. Richmond (226 U.S.
137), Ioseph Hurtado V. People of California (1883) (10 U.S.
516), referred to..
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
107 of 1952.
Appeal from the Judgment and Order dated 22nd
March, 1951, of the High Court of Judicature at Calcutta
(Harries C.J. and Banerjee J.) in Reference No. 4 of
1950 .in .Civil Rule No. 1643 Of 1950.
M.C. Setalvad, Attorney-General for India' (B. Sen,
with him) for the appellant.
Atul Chandra Gupta (Jay Gopd Ghose, with him) for
respondent NO. 1.
1953. December 17. The following Judgments were
delivered.
PATANJALI SASTRI C.J.--This appeal raises issues
great public and private importance regarding the extent of
protection. which the . Constitution of India accords to
ownerships of private property.
The first respondent herein (hereinafter referred to as
the respondent) purchased the entire Touzi No. 341 of the
24-Parganas Collectorate at a revenue sale held on ,January
9, 1942. As such purchaser, the respondent acquired under
section 37 of the Bengal Revenue Sales Act, 1859
(Central Act No. 11 of 1859) the right "to avoid and annul
all under-tenures and forthwith to eject all under-
tenants"-with certain exceptions which are not material
here. In exercise of that right the respondent gave notices
of ejectment and brought a suit in 1946 to evict certain
under-tenants, including the second respondent herein, and
to recover possession
594
of. the lands. The suit was. decreed against the second
respondent who preferred an appeal to the District
Judge, 24-Parganas, Contending that his undertenure came
within one of the exceptions referred to in section 37.
When the appeal was pending, the Bill, which was later
passed as the West Bengal Revenue Sales (West . Bengal
Amendment) Act, 1950, (hereinafter referred to as"the
'amending Act") was introduced in the West Bengal
'Legislative Assembly on March 23, 1950. It would
appear, according to the ."statement 0f objects and
reasons" annexed to the Bill, that great hardship was
being caused to a large section of the people by the.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 59
application of section 37 of the Bengal Land Revenue
Sales Act, 1859, in the urban areas and particularly in
Calcutta and its suburbs where "the present phenomenal
increase in land values has supplied the necessary
incentive to speculative purchasers in exploiting this
provision .(section 37) of the law for unwarranted large-
scale eviction" and it was,therefore,. considered
necessary to enlarge the scope of protection already given
by the section to certain categories of tenants with
due safeguards for the security Of Government revenue.
The Bill was eventually passed as the amending Act and
it .came into force on.March 15, 1950. It substituted by
section 4 'the'new section 37 in the place of the original
section 37, and' it provided by section 7 that all pending
suits, appeals and other proceedings which had not already
resulted in delivery of possession shall' abate.,
Thereupon, the respondent, contending that section 7
was'void as abriging his fundamental fights under
article 19(1) (f) and article 31, moved the High Court
'under article 228 to withdraw the pending appeal and
determine the constitutional issue .'raised by him. The
appeal accordingly. withdrawn 'and the case was heard
by Trevor Harries C.J. and Banerjee J.. who, by
separate but, concurring 'judgments, declared section 7
unconstitutional and void '::and. returned the :case: to
the District Court 'for: disposal, in conformity
595
with 'their decision. The learned Judges held that the
respondent's right to annul under-tenures and evict
under-tenants being a vested right acquired by him under
his purchase before section 37 was amended, the
retrospective deprivation of that right by section 7 of the
amending Act without any abatement of the price paid by the
respondent at the revenue sale was an infringement of his
fundamental right under article 19(1) (f) to hold property
with all the rights . acquired under his purchase, and as
such deprivation was not a reasonable restriction on the
respondent's exercise of his vested right, section 7 was
not saved by clause (5) of that article and was void.
On behalf of the appellant State the learned
Attorney-General contended before uS that if, as the
respondent claims, his right to annul under-tenures and.
evict under-tenants in occupation other than those
protected under the original enactment, was
"property'" within the meaning of clause (1) Of article
19, then, it was also "property" within the meaning of
clause (1) of article 31, as the expression must have the
same'connotation in both the provisions, and the
respondent,' having been "deprived" of it under the
authority of law, namely, section 7 of the amending Act,
such deprivation was lawful and could not be challenged. In
support of this contention learned counsel strongly
relied on the observations of my learned brother Das in
Chiranjit Lal Choudhury's case(1 ) and' also on
the .analogy of the reasoning of the majority 'in
;Gopalan's case(z). Alternatively, it was urged that if
the correct view was that the nullification of the
respondent's right was only the imposition of a
"restriction" on the enjoyment of the property
purchased by him, as .has been held by the learned
Judges. below, then, it was a reasonable restriction
imposed in ,the' interests of the general public under
clause (5)of article 19, having regard to the facts and
circumstances which led to the enactment of the measure
as . disclosed in the Statement of Objects and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 59
(1) [1950] S.C. R: 869 "
(2) [1950] 8. C.R. 88.
[1954]
Reasons annexed to the Bill which, for this purpose, is
admissible.
It will be convenient to deal first with the latter
contention of the Attorney-General. Sub-clause (f) 0f
clause (1) of article 19 has, in my opinion, no application
to the case. That article enumerates certain freedoms under
the caption "right to freedom" and deals with those great
and basic rights which are recognised and guaranteed as
the natural rights inherent in the status of a
citizen of a free country. The freedoms declared in sub-
clauses (a) to (e) and (g) are clearly of that description
and in such context sub-clause (f) should, I think, also
be understood as declaring the freedom appertaining to the
citizen of free India in the matter of acquisition,
possession and disposal of private property. In other
words, it declares the citizen's right to own property
and has no reference to the right to the property owned by
him, which is dealt with in article 31. Referring to the
"privileges and immunities" mentioned in article 4 and
Amendment 14 of the American Federal Constitution,
Bradley J. said in Butchers Union etc. Co. v. Crescent
City etc. Co.(1):
"The phrase has a broader meaning. It includes those
fundamental privileges-and immunities which belong
essentially to the citizens of every free government, among
which Washington J. enumerates the' right of protection;
the right to pursue and obtain happiness and safety;
the right to pass through and reside in any State 'for the
purposes of trade, agriculture, professional pursuits or
otherwise; to claim the benefit of the wnt of habeas
corpus; to institute and maintain actions of any kind in
the courts of the State and to take, hold and dispose of
property either real or personal. (Corfield v. Coryell, 4
Wash. (C.C.) 371). These rights are different from the
concrete fights which a man may have to a specific chattel
or a piece of land or to the performance by another of a
particular contract, or to damages of a particular wrong,
all which may be invaded by individuals; they are the
capacity, power or privilege of having and enjoying
(1) 111 U. 8. 746.
597
those concrete rights and of maintaining them in the courts,
which capacity, power or privilege can only be invaded by
the State. These primordial and fundamental rights are
the privileges and immunities citizens which are referred
to in the 4th article of the Constitution and in the
14th Amendment to it." (Italics mine).
We are not here concerned with the meaning and content
of the phrase"privileges and immunities" in the context
of thoseprovisions which, according to some of the
Judges,have a reference only to those privileges and
immunities which owe their existence to the Federal
Constitution or its laws. What is of importance for
the present purpose is that the two learned Judges
thought that the "right to take, hold and dispose of
property" was one of those "primordial and fundamental
rights" of the same class'as the right to pursue
happiness and safety and other such basic freedoms
appertaining to free citizens and was different from the
concrete rights which a person may have to a specific res
or thing owned, being the capacity, power or privilege
of having and enjoying those concrete rights. Sub-clause
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 59
(f) of clause (1) of article 19 seems analogous to clause
(1) of article 17 of the United Nations Declaration of
Human Rights "Everyone has the right to own property alone
as well as in association with others" and article 31 to
clause (2) of article 17 "No one shall be arbitrarily
deprived of his property." I have no doubt that the
framers of our Constitution drew the same distinction and
classed the natural right or capacity of a citizen "to
acquire, hold and dispose of property" with other
natural rights and freedoms inherent in the status of a
free citizen and embodied them in article 19(1), while
they provided for the protection of concrete rights of
property owned by a person in article 31. The meaning of the
phrase,"to acquire, hold and dispose of property" as well
as the nature of the subject matter to which it has
reference in the sense indicated above, is also clear from
the terms of sections 111 and 298 of the Government of
India Act, 1935, where the same phrase is used
598
in prohibiting imposition of "disability" on grounds of
religion, place of birth, .descent, colour or any of them
on a British subject domiciled 'in the United Kingdom and
on an indian subject of His Majesty determined, in the
case of citizens and non-citizens not deal with
expropriation of specific property belonging to such
persons which is dealt with in section 299.
There are difficulties in the way of accepting the view
of the learned Judges below that article 19 (1) (f) and 19
(5) deal with the concrete rights of property and the
restraint to which they are liable to be subjected.
In the first place, it will be noticed that sub-clause
(f) of clause (1) of article 19 deals only with the rights
of citizens, whereas article 31 deals with the rights of
persons in general. If article 31, which is headed by
the caption "right to property", was designed to
protect property rights of citizens as well as non-
citizens, why was it considered necessary to provide
for the protection of those rights in sub-clause (f) of
clause (1) of article 19 also ? I do not think that our
Constitution-makers could have intended to provide a
double-barrelled constitutional protection to private
property. Moreover, right to "acquire" and "dispose of"
property could only refer to the capacity of a citizen.
The word "hold", which is inserted between those two
words must, in my opinion, be understood to mean
"own", and not as having reference to something
different, viz., rights to specific things owned by a
citizen ? I see no force in the objection that unless sub-
clause (f) of clause (1) of article 19 read with clause (5)
is construed as relating to concrete property rights also,
the legislature would have the power to impose even
unreasonable restrictions on the enjoyment of private
property by citizens. It is difficult to believe that the
framers of our Constitution could have intended to
differentiate between citizens and non-citizens in regard
to imposition of restrictions on enjoyment of private
property. Such restrictions are imposed in exercise of the
power inherent in the State to regulate private rights of
property when they
599
are sought to be exercised to 'the injury of others having
similar rights, and the ,measure of restriction imposed. in
exercise of such regulative power must be determined, in the
case of citizens and non-citizens alike, by the necessity
of protecting the community. On the other hand,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 59
differential treatment of citizens and non-citizens would be
perfectly intelligible if subclause (f) of clause (1) of
article 19 and clause (5) are understood as dealing only
with the freedom or capacity to acquire, hold and dispose
of property in general, for, it would be justifiable to
exclude aliens from such freedom, as has been done in
several countries for the benefit of their own nationals,
particularly in respect of land. Moreover, both by the
preamble and the directive principles of State policy
in Part IV, our "Constitution has set the goal of a social
welfare State and this must involve the exercise of a
large measure of social control and regulation of the
enjoyment of private property. If concrete rights of
property are brought within the purview of article 19(1)(f),
the judicial review under clause (5)as to the
reasonableness of such control and regulation might have an
unduly hampering effect on legislation m that behalf, and
the makers of our Constitution may well have intended to
leave the Legislatures free to exercise such control and
regulation in relation to the enjoyment of rights of
property, providing only that if such regulation reaches
the point of deprivation of property the owner should be
indemnified under clause (2) of article 31 subject to
the exceptions specified in para. (ii) of sub-clause (b) of
clause (5) of article 31.
'Nor am I much impressed with the suggestion that the
reference to "exercise" in clause (5) of article 19 of the
rights conferred by sub-clause (f) of clause (1) indicates
that' the' latter rights must be fights of property.
Clause (5) could as well contemplate restrictions on the
excercise of a citizen's freedom to acquire, hold and
dispose of property, as for instance, banning acquisition of
land in a givien locality, say a tribal area, or
putting a ceiling on the quantum of land that a citizen can
hold, or restricting alienation of land to specified classes
of persons only (of. Punjab Province v.
600
Daulat Singh and Other (1) and the reasonableness of such
restrictions being brought under judicial review. For all
these reasons, I am of opinion that under the scheme of the
Constitution, all those broad and basic freedoms inherent in
the status of a citizen as a free man are embodied and
protected from invasion by the State under clause (1)of
article 19, the powers of State regulation of those
freedoms in public interest being defined in relation
to each of those freedoms by clauses (2) to (6) of that
article, while rights of private property are separately
dealt with and their protection provided for in article
31, the cases where social control and regulation could
extend to the deprivation of such rights being indicated
in para. (ii)of subclause (b) of clause (5) of article
31 and exempted from liability to pay compensation under
clause (2). On this view, no question of correlating article
19 (1) (f) with article 31 could arise and the analogy of
Gopalan's case has no application. On this view, the
question whether section 7 0/3 the amending Act is a
reasonable restriction on the exercise of the res
pondent's right to the property purchased by him could not
also arise, as' clause (5) of article 19 could then have
reference only to disabilities of the kind
already mentioned.
Turning next to the' contention based on article 31 (1),
it Was put thus in the language of Das J. in Chiranjit Lal
Choudhury's case( ) which the learned Attorney-General
fully adopted:
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 59
"Article 31(1) formulates the fundamental right in
negative form prohibiting the deprivation of property
except by authority of law. It implies that a person may
be deprived of his property by authority of law. Article
31(2) prohibits the acquisition or taking possession of
property for a public purpose under any law, unless such
law provides for payment of compensation. It is suggested
that clauses (1) and (2) 0f article 31 deal with the same
topic, namely, compulsory acquisition or taking
possession 0f property, clause (2) being only an
elaboration of clause (1). There appear
(1) [1946] F.C .R. 1 CP. C.).
(2) [1950] S.C.R. 869, 924. ,
601
to me to be two objections to this suggestion.If
that were the correct view, then clause (1) must be
held to be wholly redundant and clause (2), by itself,
would have been sufficient. In the next place such a view
would exclude deprivation of property otherwise than by
acquisition or taking of possession. One can conceive
of circumstances where the State may have to deprive a
person of his property without acquiring or taking
possession of the same. For example, in any emergency,
in order to prevent a fire spreading, the authorities may
have to demolish an intervening building. This deprivation
of property is supported in the United States of America as
an exercise of "police power". This deprivation of
property is different from 'acquisition or taking of
possession of property which goes by the name of "eminent
domain" m the American law. The construction
suggested implies that our Constitution has dealt with only
the law of "eminent domain", but has not provided for
deprivation of property in exercise of "police powers". I
am not prepared to adopt such construction, for I do not
feel pressed to do so by the language used in article 31. On
the contrary, the language of clause (1) of article 31 is
wider than that of clause (2), for deprivation of property
may welt be brought about otherwise than by acquiring or
taking possession of it. I think clause (1) enunciates the
general principle that no person shall be deprived of his
property except by authority of law, which, put in a
positive form, implies that a person may be deprived of
his property, provided he is so deprived by authority of
law. No question of compensation arises under clause (1).
The effect of clause (2) is that only certain kinds of
deprivation of property, namely those brought about by
acquisition or taking possession of it, will not be
permissible under any law, unless such law provides for
payment of compensation. If the deprivation of property
is brought about by means other than acquisition or
taking possession of it, no compensation is required,
provided that such deprivation is by authority of law."
I have made this lengthy extract in order to avoid
possible unfairness in summarising it. These
2-9 S.C.I./59
602
observations were made while rejecting an argument of the
petitioner in that case, which, however, the learned Judge
decided in his favour on another point, and are thus purely
obiter. With all respect-to my learned brother I am
unable to share the view expressed by him. He reads
clauses (1) and (2)as mutually exclusive in scope and
content, clause (2) imposing limitations only on two
particular kinds of deprivation of private property,
namely, those brought about by acquisition or taking
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 59
possession thereof, and clause (1). authorising all other
kinds of deprivation with no limitation except that
they should be authorised by law. There are several
objections to the acceptance of this view. But the most
serious of them all is that it largely nullifies the
protection afforded by the Constitution to rights of
private property and, indeed, stultifies the very
conception of the "right to property" as a fundamental
right. For, on this view, the State, acting through
its legislative organ, could, for instance, arbitrarily
prohibit a person from using his property, or authorise
its destruction, or render it useless for him, without
any compensation and with-out a public purpose to be
served thereby, as these two conditions are stipulated
only for acquisition and taking possession under clause
(2). Now, the whole object of Part Iii of the
Constitution is to provide protection for the freedoms
and rights mentioned therein against arbitrary invasion by
the State, which as defined by article 12 includes the
Legislatures of the country. It would be a startling
irony if the fundamental rights of property were, in effect,
to be turned by ,construction into an arbitrary power
of the State to deprive a person of his property without
compensation in all ways other than acquisition or
taking possession of such property. If the Legislatures were
to have such arbitrary power, why should compensation
and public purpose be insisted upon in connection with what
are termed two particular forms of deprivation ? What
could be the rational principle underlying this
differentiation ? To say that clause (1) defines the
"police power" in relation to rights of property is no
satisfactory answer, as the Same power
603
could as well have been extended to these two particular
kinds of deprivation. Such extension would at least have
avoided the following anomaly:compensation is paid to
indemnify the owner for the loss of his property. It could
make no difference to him whether such deprivation was
authorised under clause (1)or clause (2). In either case
his property would be gone and he would suffer loss. It
would matter little to him what happened to the property
after he was deprived of it--whether it was used for a
public purpose or was simply destroyed without any public
purpose being served. In fact, he could more readily
reconcile himself to the loss forced upon him if he
found his property being used for the public
benefit; for, in that case, he would be
participating in that benefit as a member of
the public. But that consolation would be denied to
him by deprivation under clause (1), which makes his
0loss all the more grievous. But, according to Das
J.s. reading of that clause, the Constitution-makers
have provided for no indemnification of the
expropriated owner. Why ? Because,it is said, deprivation
under clause (1) is an exercise of "police power." This,
to my mind, is fallacious.You first construe the clause
as conferring upon the State acting through its Legislature
unfettered power to deprive owners of their property in
all other cases except the two mentioned m clause (2), and
then seek to justify such sweeping and arbitrary power
by calling it "police power." According to Das J. clause
(1) was designed to confer "police power" on the State
to deprive persons of their property by means other
than acquisition or taking possession of such property.
He would read the clause in a positive form as implying
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 59
that a person may be deprived of his property by authority
of law. In other words, the framers of our Constitution, who
began Part Ill by formulating the fundamental rights of
individuals against invasion by the Legislatures in the
country, ended by formulating the right of the
Legislatures to deprive individuals of their property
without compensation.
604
Speaking of police power, as applied to personal
liberty, Prof. Willis says( 1 ):
There are two main requirements for a proper exercise
of the police power--(1) there must be a social interest to
be protected which is more important than the social
interest in personal liberty, and (2) there must be, as a
means for the accomplishment of this end,
something which bears a substantial
relation there to.
This statement is equally true of police power as applied
to private property. This is recognised and given
effect to in clauses (2) to (6) of article 19 which delimit
the regulative power of the Legislatures as
applied to the freedoms enumerated in clause (1)of that
article including the freedom referred to in sub-clause
(f). But clause (1) of article 31 imposes no such
limitations. Why should such absolute power be conferred
on the Legislature in relation to private property, whereas
the exercise of restrictive power under clauses (2)
to (6) of article 19 is carefully limited to specified
purposes and to the imposition of only reasonable
restrictions in each of those cases ? Could it have been
intended that, while restriction imposed on the freedoms
mentioned in clause (1) of article 19 should be
reasonable and in public interest, deprivation of property,
except in the two cases provided for in clause (2) of
article 31, need not be reasonable nor for the public
benefit ? To say that the requirement of "authorisation
by law" was considered sufficient limitation in all
other cases of deprivation takes no note of the fact that
in the case of restrictions under clauses (2) to (6) of
article 19 also, their authorisation could only be by law
and yet other limitations have been imposed. In
fact, authorisation by law can obviously be no
limitation on the Legislature, and "police power",
as developed in the American case law, is
essentially a legislative power.
Now, what is this "police power" and how does the
Constitution of India provide for its exercise by the
State ? Referring to the doctrine of police power
(1) Constitutional Law, p. 728.
605
in America, I said in Gopalan's case(1): "When that power
(legislative power) was threatened with prostration by the
excesses of due process, the equally vague and expansive
doctrine of "police power", i.e., the power of
Government to regulate private rights in public interest,
was evolved to counteract such excesses" And Das J. (1),
said that the content of due process of law had to be
narrowed down by the "enunciation and application of the
new doctrine of police power as an antidote or palliative
to the former". This court held in the aforesaid
case that the framers of our Constitution definitely
rejected the doctrine of due process of law. Is it
to be supposed that they accepted the "antidote"doctrine
of police power and embodied it in clause(1) of article 31
as a specific power conferred on the Legislatures to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 59
deprive persons of their property ? The suggestion seems
unwarranted and, indeed, contrary to the scheme of our
Constitution. That scheme, in marked contrast with the
Constitution of America, is to distribute legislative
powers among the Union and the State Legislatures according
to the Lists of the Seventh Schedule and among such
powers was included the power of "acquisition or
requisitioning of property" for Union and State
purposes in entry No. 33 of List I and No. 36 of List
II respectively. Thus, what is called the power of
eminent domain, which is assumed to be inherent
in the sovereignty of the State according to
Continental and American jurists and is accordingly
not expressly provided for in the American
Constitution, is made the subject of an express grant in
our Constitution. Having granted the power in express
terms, the Constitution defines in article 31 the
limitations on the exercise thereof as constituting
the fundamental right to property of the owner, all
fundamental rights of the people being restraints on
the State [see observations at page 198 in Gopalan's
case(1)]. But the power of social control and regulation of
private rights and freedoms for the common good
(1) [1950] S.C.R. 88, 200.
(2) [1950] S.C.R. 88, 313.
606
being an essential attribute of a social and political
organisation otherwise called a State, and pervading, as
it does, the entire legislative field, was not specially
provided for under any of the entries in the legislative
Lists and was left to be exercised, wherever desired,
as part of the appropriate legislative power. Even
where such regulative powers are defined and
delimited, as for instance in clauses (2) to (6) of
article 19 in relation to the rights and freedoms
specified in clause (1), the powers themselves are left
to be exercised under laws made with respect to those'
matters. For example, the power of social control and
regulation as applied to freedom of speech and expression
is exercisable under a law made with respect to entry
No. 1 of List II (Public Order) or entry No. 39 of List
III (Newspapers, books and printing presses) and in
relation to a freedom not falling under clause (1) of--
article 19, like the freedom to drink or to eat what one
likes, such freedom can be restrained or even
prohibited under a law made with reference to entry No. 8 of
List II (Intoxicating liquors, etc.) or entry No. 19
of List III (Drugs and poisons). Thus the American
doctrine of police power as a distinct and specific
legislative power is not recognised in our
Constitution and it is therefore contrary to the scheme of
the Constitution to say that clause (1) of article 31 must
be read in positive terms and understood as conferring
police power on the Legislature in relation to rights of
property. I entirely agree with the observations of
Mukherjea J. in Chiranjit Lal's case(1 ), that "In
interpreting the provisions of our Constitution we should
go by the plain words used by the Constitution makers and
the importing of expressions like 'police' power', which
is a term of variable and indefinite connotation in
American law, can only make the task of interpretation
more difficult."
The correct approach, in my opinion, to the
interpretation of article 31 is to bear in mind the
context and setting in which it has 'been placed. As
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 59
already stated, Part III of the Constitution is
designed to afford protection to the freedoms and rights
mentioned
(1) [1950] S.C.R. 869, 907
607
therein against inroads by the State which includes
the Legislatures as well as the executive Governments in
the country. Though, as pointed out in Gopalan's case
(1) citing Eshukbayi Eleko v. Officer Administering the
Government of Nigeria( 2 ), protection against executive
action is not really needed under systems of
Government based on British jurisprudence according to
which no member of the executive can interfere with the
liberty or property of a subject except in pursuance
of powers given by law, our Constitution-makers,
who were framing a written Constitution, conferred such
protection explicitly by including the executive
Governments of the Union and the States in the definition
of "the State" in article 12. A fundamental right is thus
sought to be protected not only against the legislative
organ of the State but also against its executive
organ. The purpose of article 31, it is hardly necessary
to emphasis, is not to declare the right of the State to
deprive a person of his property but, as the heading
of the article shows, to protect the "right to
property"of every person. But how does the article
protect the right to property ? It protects it by
defining the limitations on the power of the State to
take away private property without the consent of the
owner. It is an important limitation on that power that
legislative action is a pre-requisite for its exercise. As
pointed out by Cooley, "The right to appropriate private
property to public uses lies dormant in the State, until
legislative action is had, pointing out the occasions,
the modes, conditions, and agencies for its
appropriation. Private property can only be taken
pursuant to law"(3). In England the struggle between
prerogative and Parliament having ended in favour of the
latter, the prerogative right of taking private property
became merged in the absolutism of Parliament, and the
right to compensation as a fundamental right of the
subject does not exist independently of Parliamentary
enactment. The result is that Parliament alone could
authorise interference with the enjoyment of
private property.
(1) [1950] S.C.R 88.
(2) [1931] A C. 662.
(3) Constitutional Limitations, Vol. II, p. 1119.
608
Blackstone also says that it is the Legislature alone that
can interpose and compel the individual to part with his
property(1). It is this limitation which the framers of
our Constitution have embodied in clause (1) of
article 31 which is thus designed to protect the rights to
property against deprivation by the State acting
through its executive organ, the Government. Clause (2)
imposes two further limitations on the Legislature
itself. It is prohibited from making a law authorising
expropriation except for public purposes and on payment
of compensation for the injury sustained by the owner. These
important limitations on the power of the State, acting
through the executive and legislative organs, to take
away private property are designed to protect the owner
against arbitrary deprivation of his property. Clauses (1)
and (2) of article 31 are thus not mutually exclusive in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 59
scope and content, but should, in my view, be read
together and understood as dealing with the same subject,
namely, the protection of the right to property by
means of the limitations on the State power referred to
above, the deprivation contemplated in clause (1) being
no other than the acquisition or taking possession of
property referred to in clause (2).
Much argument was expended to show that clause (2)
dealt only with two specified modes of depriving a
person of his property, namely, acquisition and
requisitioning and could not, therefore, be considered to
be a mere elaboration of clause (1), which referred to
deprivation generally. It was submitted that clause (2)
should be read with entry No. 33 of List I, No. 36 of List
II and No. 42 of List III, each of which refers to
acquisition or requisitioning of property and to no
other mode of deprivation. It was also pointed out that
sub-section (2) of section 299 of the Government of India
Act, 1935, as well as entry No. 9 of List II of the
Seventh Schedule thereof referred only to compulsory
acquisition of land for public purposes, and it was not
until the Bombay High Court held in Tan Bug Taim and
Others v. The Collector of Bombay anal Others (2), that
rule 75(a) of the Defence of India Rules
(1) Commentaries, Vol. I, p, 110.
(2) I.L.R. 1946 Bom. 517.
609
under which a property situated in Bombay was requisitioned
was ultra vires on the ground that entry No. 9 of List II
did not confer on the Legislature the power of
requisitioning, that such power was-conferred on the Central
Legislature by the India (Proclamations of Emergency)
Act, 1946 (9 and 10 Geo. V, Ch. 23). Attention was drawn to
the Regulations and Acts relating to compulsory
acquisition of land in this country including the Land
Acquisition Act, 1894, all of which provided for the
vesting of the property acquired in the Government or
in one of its officers, and it was suggested that the
framers of our Constitution, who must have been aware of the
difficulties arising out of the lacuna in the Government
of India Act, 1935, in regard to the power of
requisitioning, added the words "taken possession of" in
clause (2) and the word "requisitioning" in the entries
referred to above. It was, therefore, urged that the
words "acquired" or "taken possession of" should not
be taken to have reference to all forms of deprivation of
private property by the State.
I see no sufficient reason to construe the words
"acquired or taken possession" used in clause (2) of
article 31 in a narrow technical sense. The Constitution
marks a definite break with the old order and introduces
new concepts in regard to many matters, particularly
those relating to fundamental rights, and it cannot be
assumed that the ordinary word "acquisition" was used in
the Constitution in the same narrow sense in which it may
have been used in pre-Constitution legislation relating to
acquisition of land. These enactments, it should be
noted, related to land, whereas article 31(2) refers to
movable property as well, as to which no formal transfer
or vesting of title is necessary. Nor is there any warrant
for the assumption that "taking possession of property"
was intended to :mean the same thing as "requisitioning
property" referred to in the entries of the Seventh
Schedule. If that was the intention, why was the word
"requisitioning" not used in clause (2) as well ? It is
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 59
fallacious to suggest that unless "taking possession"
is synonymous with "requisitioning", the power to make a
law
610
authorising the taking of possession of property would be
lacking because no entry in any of the Lists of the Seventh
Schedule confers that power. A specific entry in the
legislative Lists is no more necessary for conferring
such power than for conferring power to make a jaw
authorising deprivation of property which clause (1) of
article 31 postulates. [See observations in P.D.
Shamdasani v. Central Bank of India(1)]. The word
"acquisition" is not a term of art, and it ordinarily
means coming into possession of, obtaining, gaining or
getting as one's own. It is in this general sense that the
word has been used in articles 9, 11 and 19(1) (f)and not
as implying any transfer or vesting of title. In Minister of
State Jar the Army v. Dalziel(2 ) a Full Bench of the High
Court of Australia had to construe the scope of the
legislative power with respect to "acquisition" of
property conferred on the Commonwealth Parliament by
section 51 (xxxi) of the Austrailan Constitution (63 and
64 Vic., Ch. 12),. and the court decided by a
majority that the power included the power to take
possession of property for a temporary purpose for an
indefinite period. To say that acquisition implies the
transfer and vesting of title in the Government is to
overlook the real nature of the power of the State as a
sovereign acting through its legislative and executive
organs to appropriate the property of a subject without
his consent. When the State chooses to exercise such
power, it creates title in itself rather than acquire it
from the owner, the nature and extent of the title thus
created depending on the purpose and duration of the use
to which the property appropriated is intended to be put as
disclosed in the law authorising its acquisition. No
formula of vesting is necessary. As already stated, in
the case of moveable property no formal transfer or
vesting of title apart from seizing it could have been
contemplated And, what is more, clause (5) (b) (ii) of
article 31, which excepts any law made in future "for the
prevention of danger to life or property" from the
operation, of clause (2) shows that the latter clause, but
for such exception, would entail liability to pay
compensation for deprivation by destruction, which
must therefore-
(1) [1952] S.C.R. 391,394.
(2) 68 C.L.R. 261.
611
be taken to fall within the scope of clause (2), for a law
made for the prevention of danger to life or property may
often have to provide for destruction of the property
appropriate. I am of opinion that the word "acquisition"
and its grammatical variations should, in the context
of article 31 and the entries in the Lists referred to
above, be understood in their ordinary sense, and the
additional words "taking possession of" or
"requisitioning" are used in article 31(2) and in the
entries respectively, not in contradistinction with,
but in amplification of the term "acquisition", so as
to make it clear that the words taken together cover even
those kinds of deprivation which do not involve the
continued existence of the property after it is acquired.
They would, for instance, include destruction which implies
the reducing into possession of the thing sought to be
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 59
destroyed as a necessary step to that end. The
expression "taking possession" can only mean taking such
possession as the property is susceptible of and not
actual physical possession, as "the interest in, or in
any company owing, any commercial or industrial
undertaking", which is expressly included in clause (2)
of article 31, is not' susceptible of any actual
physical occupancy or seizure. It is, however,
unnecessary here to express any concluded opinion on the
precise scope and meaning of the expression "shall be
taken possession of or acquired" in clause (2) except to
say that it does not admit of being construed in the same
wide sense as the word "taken" used in the Fifth Amendment
of the American Constitution, but implies such an
appropriation of the property or abridgement of the
incidents of its ownerships as would amount to a deprivation
of the owner. Any other interference with enjoyment of
private property short of such appropriation or
abridgement would not be compensable under article 31(2).
It will now be seen that the two objections raised by
Das J. to the view expressed above, namely, that
612
clauses (1) and (2) must be read together and understood
as dealing with the same topic, are really baseless. The
first objection is that clause (1) would then be
redundant. It would not be so because it embodies one of the
three important limitations on the exercise of the State
power of deprivation of private property, namely, the
necessity for the legislative action as a condition
precedent to the exercise of the power and constitutes a
protection against the executive organ of the State. The
second objection that the State's power in an emergency to
deprive a person of his property without payment of
compensation, as for example, to demolish an intervening
building to prevent a conflagration from spreading, would
be excluded is equally baseless. Cases of that kind, as we
have seen, would fail within the exception in clause
(5)(b)(ii), and no compensation would be payable for the
loss caused by the destruction of property authorised
under that clause. The learned Attorney-General
suggested that sub-clause (b) was inserted ex-abundante
cautela as even without it no one could have supposed that a
law of the kind mentioned in that sub-clause would
fall under clause (2). There could have been no
doubt, for instance, that the power of taxation
referred to in paragraph (i) of that sub-clause was a
distinct power. It is difficult to appreciate this
argument. If the exceptions in sub-clause (b) were so
obvious that they need not have been explicitly
provided for, then equally must be second objection of
Das J. fall to the ground. To say that sub-clause (b)is
introduced by way of abundant caution is not to do away
with the exceptions but to emphasise their existence
aliunde. Whether it was considered necessary to
provide expressly that destruction of private property
under emergency conditions entails no liability to
pay compensation or whether the State's power to do so
was so well established that sub-clause (b)(ii)was
really unnecessary and must be taken to have been
inserted ex abundante cautela, in either view, the second
objection must equally fail. The fact is that all the cases
referred to in sub-clause (b) are different forms
613
of deprivation of property and, as difficulties of
construction might arise in a written Constitution if
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 59
they are not expressly and specifically excepted from the
requirement under clause (2) as to payment of
compensation, the framers have thought it necessary to
insert clause (5) (b).
Where was the necessity, it was asked, to provide in
clause (1) of article 31 for protection against the
executive government in the matter of compulsory
acquisition of property by the State, as no such protection
is provided for in the case of the regulative powers
exercisable under article 19(2) to (6)? The answer is:
the same need apparently which dictated the enactment of
article 265 providing for similar protection in the
matter of taxation. In any case, this would be no more of
an objection, if it be an objection, to the view I have
indicated above than to the other view which also recognises
the necessity for legislative action before a person
could be deprived of his property.
Attention was called' to article 38 as showing that
one of the goals set by the Constitution was the
promotion of social welfare, and it was urged that the
attainment of that object as well as the growing
complexities of modern conditions of life must call for
an expanding power of social control and regulation,
particularly in the sphere of the enjoyment of private
property and that the exercise of such power without
entailing liability to pay compensation ought not to be
confined within the narrow limits specified in article 31
(5) (b). This is a misconception. In the first place,
social welfare is not inconsistent with the ownership of
private property and does not demand arbitrary
expropriation of such property by the State without
compensation. On the other hand, as pointed out by
Blackstone "The public good is in nothing more
essentially interested than in the protection of every
individual's private rights as modelled by the municipal
law"(1). This is not an antiquated view. So modern a
document as the Declaration of Human
(1) Commentaries Vol. I, p. 109.
614
Rights in the United Nations has specifically provided for
the protection of private property by including the clause
"No one shall be arbitrarily deprived of his" in
article 17 and the framers of our Constitution have
evidently proceeded on that view.
Secondly, the argument also overlooks that clause (5) (b)
was not intended to define and does not define
exhaustively the power of social control and regulation
in relation to rights of private property. It only
limits the purposes for which the power could be exercised
without liability to pay compensation, though its exercise
results in deprivation of property in the sense already
explained. But where its exercise does not involve
deprivation of property, no question of paying compensation
would arise, and the Legislatures in the country would, as
already indicated, be free to enact laws providing for the
exercise of such power within the fields marked out for them
in the Legislative Lists. There is, therefore, no room for
the apprehension that article 31 (5)(b) would unduly cramp
social control and regulation of private property for the
public good or would lead to any alarming consequences
to the safety of the community.
But why all this ado, it was asked, about protection
against deprivation of property by legislative action ?
There is no such protection provided in the Constitution
against deprivation of property by the Legislature
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 59
exercising the power of taxation. Why then complain if
there is no protection against the Legislature
authorising deprivation of property without compensation
under article 31(1) ? Our Constitution-makers, it was
said, trusted the Legislature, as the people of Great
Britain trust their Parliament which protects the
Englishman's right to property. In ultimate
analysis, is not well-informed and organised public
opinion the true and effective protection against
arbitrary action of the Legislature ? The argument has
no force. So far as the power of taxation is concerned,
the Constitution recognises no fundamental right to
immunity from taxation and that is why presumably no
constitutional protection is provided against the
exercise of that power. But fundamental
615
rights under the Constitution stand on a different
footing. Indeed, the argument is a bold challenge to
the policy of including a declaration of such rights in
Part HI of the Constitution. In Gopalan's case(1), I
said:
"Madison (who played a prominent part in framing the
First Amendment of the American Constitution)
pointing out the distinction, due to historical
reasons, between the American and the British ways of
securing 'the great and essential rights of the people',
observed Here they are secured not by laws paramount to
prerogative but by Constitutions paramount to laws.'" This
has been translated into positive law in Part 1I1' of the
Indian Constitution.
There have always been two schools of opinion
regarding the efficacy of a declaration of fundamental
rights in a Constitution. Britain never believed in a
formal declaration of such rights. Referring to the
,demand of the Indian Delegation that the Parliamentary
Bill which was later passed as the Government India Act,
1935, should embody certain fundamental rights, the
Joint Parliamentary Committee observed(2 ):
"The question of so-called fundamental rights,
which was much discussed at the three Round Table
Conferences, was brought to our notice by the British
India Delegation, many members of which were anxious
that the new Constitution should contain a declaration
of rights of different kinds, for reassuring minorities
for asserting the equality of all persons before the
law, and for other like purposes; and we have examined
more than one list of such rights which have been
compiled. The Statutory Commission observe with
reference to this subject:--'We are aware that such
provisions have been inserted in many Constitutions,
notably in those of the European States formed after the
war Experience, however, has not shown them to be of
any great practical value. Abstract declarations are
useless unless there exist the will and means to make
them effective.'With these
(1)[1950] S.cR. 88, 198.
(2) Para. 366.
616
observations we entirely agree; and a cynic might
indeed find plausible arguments, in the history during the
last ten years of more than one country, for
asserting that the most effective method of ensuring the
destruction of a fundamental right is to include a
declaration of its existence in a constitutional
instrument."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 59
But the American view is different. Answering a similar
objection to the inclusion of a Bill of Rights in the
American Constitution, Jefferson said:
"But though it is not absolutely efficacious under all
circumstance's, it is of great 'potency always, and rarely
inefficacious. A brace the more will often keep up the
building which would have fallen with that brace the less.
There is a remarkable difference between the
characters of the inconveniences which attend a
declaration of rights, and those which attend the want of
it. The inconveniences of the declaration are, that it
may cram Government in its useful exertions. But the
evil of this is short-lived, moderate and reparable. The
inconveniences of the want of a declaration are
permanent, affective, and irreparable. They are in
constant progressive from bad to worse. The executive in
our Governments is not the sole, it is scarcely the
principal, object of my jealousy. The' tyranny of the
Legislatures is the most formidable dread at present, and
will be for many years." (Quoted in Cooley's
Constitutional Limitations, 8th Edn.Vol. I, p. 535).
It is obvious that the .framers of our Constitution shared
the American view and included Part III in the
Constitution of India. It is, therefore, a wrong'
approach to construe the articles of Part III by pointing to
the British way, which is more a traditional than a
constitutional way, of protecting the rights and liberties
of the individual by making Parliament supreme.
On this view of the meaning and effect' of article 31,
the question is whether section 7 read with section 4 of the
amending Act infringes the fundamental right of the
respondent under that article. These provisions
617
by their retrospective operation undoubtedly abridge the
respondent's rights of property by nullifying one of the
incidents of the estate purchased by him at the revenue
sale, namely, the right to annul certain kinds of under-
tenures and evict certain classes of undertenants in
occupation of portions of the estate. Does such
abridgement amount to deprivation of property within the
meaning of article 31 as interpreted above, and, if so, does
it fall within the exception in clause (5) (b) (ii) of that
article ?
Now, the word "property" in the context of article
31 which is designed to protect private property in all
its forms, must be understood both in a corporeal sense as
having reference to all those specific things that are
susceptible of private appropriation and enjoyment as well
as in its juridical or legal sense of a bundle of rights
which the owner can exercise under the municipal law with
respect to the user 'and enjoyment of those things to
the exclusion of all others. This wide connotation of the
term makes it sometimes difficult to determine whether an
impugned law is a deprivation of property within the
meaning of article 31 (2), for, any restriction imposed on
the use and enjoyment of property can be regarded as a
deprivation of one or more of the rights theretofore
exercised by the owner. The American courts have experienced
similar difficulty in deciding whether a given statutory
abridgement of the rights of the owner is an exercise of
the-police power" for which no compensation can be claimed,
or a "taking" of property within the meaning of the Fifth
Amendment clause "Nor shall private property be taken for
public use without just compensation." "The general rule
at least" said Holmes J. in delivering the majority
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 59
opinion in Pennsylvania Coal Co. v. Mahon(1 ), "is that
while property may be regulated to a certain extent, if
regulation goes too far, it will be recognised as a
taking." The vague and expansive doctrine of "police power"
and the use of the term "taken" in the Fifth Amendment
construed m a very wide sense so as to cover any injury
or damage to property, coupled with the equally vague
(1) 260 U.S. 393.
3--95 S.G.I./59
618
and expansive concept of "due process", allow a
greater freedom of action to the American courts in
accommodating and adjusting, on what may seem to them a
just basis, the conflicting demands of police power and
the constitutional prohibition of the Fifth Amendment.
Under the Constitution of India, however, such questions
must be determined with reference to the expression "taken
possession of or acquired" as interpreted above, namely,
that it must be read along with the word "deprived"
in' clause (1)and understood as having reference to
such substantial abridgement of the rights of ownership
as would amount to deprivation of the owner of his
property. No cut and dried test can be formulated as to
whether in a given case the owner is "deprived" of his
property within the meaning of article 31; each case must
be decided as it arises on its own facts. Broadly
speaking it may be said that an abridgement would be so
substantial as to amount to a deprivation within the
meaning of article 31 if, in effect, it withheld the
property from the possession and enjoyment of the
owner, or seriously impaired its use and enjoyment by him,
or materially reduced its value.
The learned Judges of the High Court did not consider
the case from this point of view. As has been stated,
they applied article 19 (1) (f) and (5) and held that
section 7 of the amending Act, by its retrospective
operation, imposed on the respondent's enjoyment of the
property purchased by him at the revenue sale restrictions
which were not reasonable. That view, for reasons
already indicated, cannot be accepted and the matter has to
be looked at from the point of view of article 31 as
interpreted above. A comparison of the scope and
effect of the old section 37 which is substituted in its
place by section 4 of the amending Act and which section
7 shows to be clearly retrospective, discloses that,
although the right of a purchaser to annual under-tenures
and evict under-tenants is curtailed by the new section 37
by enlarging the scope of the exceptions in the old
section, it entitles the purchaser, as a countervailing
advantage, to enhance the rent payable by the tenure
holders and tenants
619
newly brought within the exception. The purchaser is
left free in other respects to continue in enjoyment of
the property as before. In other words, what the
amending Act seeks to do is to enlarge the scope of the
protection provided by the exception in the old section,
as it was found to be inadequate, while conferring certain
compensating benefits on the purchaser. This amendment is in
the line with the traditional tenancy legislation in
this country affording relief to tenants whenever the
tenancy laws were found, due to changing conditions, to
operate harshly on the tenantry. I find it difficult
to hold that the abridgement sought to. be effected
retrospectively of the rights of a purchaser at a revenue
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 59
sale is so substantial as to amount to a deprivation
of his property within the meaning of article 31 (1)
and (2). No' question accordingly arises to the
applicability of clause (5) (b) (ii) to the case.
In the result, the appeal is allowed and the judgment of
the High Court is set aside. The first respondent will
pay the costs of this appeal incurred by the appellant
here and in the lower Court.
MEHR CHAND MAHAJAN J.--For reasons given in my judgment
in Dwarkadas Shrinivas v. Sholapur Spinning and Weaving
Mills Ltd., (C.A. 141 of 1952)(1 ) I agree with my Lord
the Chief Justice in his construction of article 31 of the
Constitution. I also concur in the conclusions reached by
him, and in his decision of the appeal.
DAS J.--I agree that this appeal must be allowed but I
have arrived at this conclusion by a different process
of reasoning. As the arguments advanced before us
have raised very important constitutional issues it is
only right that I should give the reasons for my decision in
some detail.
The facts and circumstances leading up to the
present appeal are as follows:
At a revenue sale held on the 9th January, 1942, the
respondent Subodh Gopal Bose purchased the entire Touzi
No. 341 recorded in the collectorate of the
(1) Reported infra.
620
permanently settled district of 24-Parganahs in West
Bengal. At the date of that sale the auction-purchasers
at a revenue sale had, under section 37 of the Bengal Land
Revenue Sales Act, 1859, 'as it then stood, certain rights
as therein mentioned. That section ran thus:
"37. The purchaser of an entire estate ,in the
permanently-settled districts of Bengal, Bihar and
Orissa, sold under this Act for the recovery of arrears due
on account of the same shall acquire the estate free from
all encumbrances which may have been imposed upon it
after the time of settlement; and shall be entitled to
avoid and annul all under-tenures and forthwith to eject
all under-tenants, with the following exceptions :--
First--Istimrari or Mukarrari tenures which have been
held at a fixed rent from the time of the permanent
settlement.
Secondly--Tenures existing at the time of settlement
which have not been held at a fixed rent ,'
Provided always that the rents of such tenure shall
be liable to enhancement under any law for the time being in
force for the enhancement of the rent of such tenures.
Thirdly--Talukdari and other similar tenure$
created since the time of settlement and held immediately
of the proprietors of estates and farms for terms of years
so held, when such tenures and farms have been duly
registered under the provisions of this Act.
Fourthly--Leases of lands whereon dwelling houses,
manufactories or other permanent buildings have been
erected, or whereon gardens, plantations, tanks, wells,
canals, places of worship or burning or burying grounds
have been made, or wherein mines have been sunk.
And such a purchaser as' is aforesaid shall be entitled
to proceed in the manner prescribed by any law for the time
being in force for the enhancement of the rent of any land
coming within the fourth class of exceptions above made, if
he can prove the same to
621
have been held at what was orginally an unfair rent, and if
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 59
the same shall not have been held at a fixed rent, equal to
the rent of good arable land, for a term exceeding twelve
years; but not otherwise;
Provided always that nothing in this section contained
shall be construed to entitle any such purchaser as
aforesaid to eject any raiyat having a right of occupancy at
a fixed rent or at a rent assessable according to fixed
rules under the laws in force, or to enhance the rent of
any such raiyat otherwise than in the manner prescribed by
such laws, or otherwise than the former proprietor,
irrespectively of all engagements made since the
time of settlement, may have been entitled to do."
In exercise of his rights under the section set out
above, the respondent Subodh Gopal Bose annulled all'
under-tenures and tenancies appertaining to the said
Touzi and on tile 18th March, 1946, instituted a suit,
being Title Suit No. 35 of 1946, in the Fourth Court of the
Subordinate Judge at Alipore 24-Parganahs for the
ejectment of respondents Nos. 2 to 6, claiming that he was
entitled to recover possession of the lands in suit by
virtue of the rights conferred on him by section 37. The
respondent No. 2, who was the defendant No. 1, alone
contested the suit. His defence was, inter alia, that
he was a raiyat and as such protected by the proviso to
section 37. He' also claimed protection under the fourth
exception to that section. The learned Subordinate Judge
who tried the suit delivered his judgment on the 14th
February, 1949. By that judgment he overruled the
contentions of the contesting defendant and passed a
decree for ejectment against him. He dismissed the suit
against the other defendants (who are now respondents
Nos. 3 to 6), holding that they were not necessary parties
to the suit.
On the 25th March, 1949, the respondent No. 2 preferred
an appeal, being Title Appeal No. 252 of 1949, before the
District Judge at Alipore, 24Parganahs. That appeal
was transferred to the court of the Additional District
Judge for hearing. While
622
that appeal was pending the West Bengal Legislature passed
West Bengal Act VII of 1950, called the Bengal Land
Revenue Sales (West Bengal Amendment) Act of 1950,
which received the assent of the Governor of Bengal on
the 15th March, 1950, and was published in the Official
Gazette on the day.
By section 4 of the amending Act, section 37 of the
Bengal Revenue Sales Act, 1859, was replaced by a new
section the material part of which runs thus:
"37. (1) The purchaser of an entire estate in the
permanently settled districts of West Bengal sold
under this Act for the recovery of arrears due on
account of the same, shall acquire the estate free.
from all encumbrances which may have been imposed after
the time of settlement and shall be entitled to avoid
and annul all tenures, holdings and .leases with the
following exceptions:
(a) tenures and holdings which have been held from
the time of the permanent settlement either free of
rent or at a fixed rent or fixed rate of rent,. and
(b) (i) tenures and holdings not included in exception
(a) above made, and
(ii) other leases of land whether or not for
purposes connected with agriculture or horticulture,
existing at the date of issue of the notification
for sale of the estate under this Act:
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 59
Provided that notwithstanding anything contained in
any law for the time being in force or in any lease or
contract no person shall be entitled to hold under such a
purchaser as is aforesaid any tenure holding or lease
coming within exception (b) above made, free Of rent
or at a low rent or at a rent or rate of rent fixed in
perpetuity or for any specified period unless the right
so to hold has been expressly recognised under any law
for the time being in force by any competent civil or
revenue court; and the purchaser shall be entitled to
proceed in the manner prescribed; by any law for the time
being in force for the
623
determination of a fair and equitable rent of such
tenure, holding or lease."
Section 7 of the amending Act provides as follows :-:
" 7. (1) (a) Every suit or proceeding for the
ejectment of any person from any land in pursuance of
section 37 or section 52 of the said Act, and
(b) every appeal or application for review or revision
arising out of such suit or proceeding, pending at the
date of the commencement of this Act shall if the suit,
proceeding, appeal or application could not have been
validly instituted, preferred or made had this Act
been in operation at the date of the institution, the
preferring or the making thereof, abate.
(2) Every decree passed or order made, before the date
of commencement of this Act, for the ejectment of any
person from any land in pursuance of section 37 or
section 52 of the said Act shall, if the decree or
order could not have been validly passed or made had
this Act been in operation at the date of the passing or
making thereof, be void ,'
Provided that nothing in this section shall
affect any decree or order in execution whereof the
possession of the land in respect of which the decree
or order was passed or made, has already been delivered
before the date of commencement of this Act.
(3) Whenever any suit, proceeding, appeal or
application abates under sub-section (1) or any
decree or order becomes void under sub-section (2), all
fees paid under the Court-fees Act, 1870, shall be
refunded to the parties by whom the same were
respectively paid."
It is quite clear that under this section 7 the
suit of the respondent Subodh Gopal Bose must abate
and the decree passed in his favour must become void
if that section be valid law and intra vires the
Constitution of India.
On the 21st July, 1950, the respondent Subodh
Gopal Bose applied before the Additional District
Judge before whom the' appeal was pending to make
624
a reference under article 228 of the Constitution of India
for a decision of the question whether the provisions of
section 7 were void being ultra vires the Constitution.
The learned Additional District Judge by his order
dated the 16th September, 1950, dismissed that application.
On the 24th November, 1950,the respondent Subodh
Gopal Bose applied to the High Court under article 228
and eventually on the 18th December, 1950, the High Court
directedthe appeal to be transferred to the High Court only
for the decision of the constitutional point. The
proceedings were numbered as Reference Case No. 4 of 1950.
Notice having been given by the Court to the Advocate-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 59
General of Bengal, the State of West Bengal
appeared on the Reference. On the 22nd March, 1951,
the High Court held that section 7 imposed an unreasonable
restriction on the respondent Subodh Gopal Bose's
right to hold property and violated his fundamental
right guaranteed by article 19 (1) (f) read with article
19 (5) and was, therefore void under article 13 (1).
With this finding the High Court sent back the records to
the lower appellate court for disposal of the appeal in
the light of that finding. On the 30th November,
1951, the High Court gave leave to the State of
West Bengal to appeal to us. Hence the present appeal.
Section 7 of the amending Act, the validity
whereof is challenged before us, in terms, affects
preexisting rights. Accordnig to that section every
suit or proceedings for ejectment under old section 37 and
every appeal or application for review or revision
arising out of such suit or proceeding pending at the
commencement of the amending Act is to abate if the suit,
proceeding, appeal or application could not have been
validly instituted, referred or made, had the amending
Act been in operation at the date of such suit, proceeding,
appeal or application. Further, every decree passed or
order made before the commencement of the amending Act
for the ejectment of any person from land in pursuance of
old section 37 is likewise to become void if such decree or
order could not'have been validly passed or made if the
625
amending Act had been in operation at the date of the
decree or order. The proviso, however, saves
-decrees or orders in execution whereof possession had
been delivered before the commencement of the
amending Act. It is, therefore,clear that section
7 affects pre-existing rights bygiving, in
effect,retrospective operation to section4 which has
sub-stituted, inter alia, the new section 37 for the
old section 37 of the Act of 1859. A cursory comparison
of the language of the old section 37 with that of the
new section 37 will at once make it clear that the
substantial right given by the old sectionto the
purchaser to avoid and annul under-tenuresand to eject
under-tenants is no longer availableto him under the
new section 37. Although the opening part of the new
section 37 purports to give to the purchaser the right to
avoid and annul the tenures etc., that right, by reason of
the wide sweep of exception (b), has, for all practical
purposes, ceased to exist. The new section 37 does
not deprive the purchaser of the physical property,
namely, the estate purchased at the revenue sale
and he continuesto be the owner of that property and
can exerciseand enforce all the rightes which his
ownership giveshim, except that he cannot, by
reason of the new section 37, avoid or annul
the under-tenures etc. or eject the under-tenants. In
other words, out of the bundle of rights constituting
the ownership acquired by him under the old section 37,
an item of important right has been taken away, thereby
abridging or restrictin.g his ownership. The respondent,
Subodh Gopal Bose, contends that his fundamental
right, under article 19(1)(f) of the Constitution,
namely his right to hold, that is to say, his right to enjoy
and exercise the full rights of ownership in relation to the
property acquired by him under the old section 37 has been
I violated and, therefore, section 7 which operates
retrospectively and gives retrospective operation to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 59
the new section 37 is ultra vires the Constitution and is
void under article 13(1).
The learned Attorney-General has not seriously
contended that the impugned section has not
626
prejudicially affected the right given to the purchaser
by the old section 37 but he maintains that the abridgement
of the rights of the purchaser at a revenue sale brought
'about by the new section 37. amounts to nothing more
than the imposition of a reasonable restriction on the
exercise of the right conferred by article 19 (1) (f)
in the interests of the general public and is perfectly
legitimate and permissible under clause (5) of that
article. The High Court repealled the above noted
contention and held that the restriction was
unreasonable.The High Court based its conclusions
on three things, namely, (1) the retrospective
operation of the impugned section, (ii) the absence
of any provision for the abatement of the purchase
price and (iii) the failure of the State to show any
reason why the impugned section was introduced
into the amending Act. The learned Attorney-General
submits that the first two elements taken into
consideration by the High Court are wholly irrelevant
for the purpose of determining whether the restriction
imposed was reasonable in the interest of the general
public. Ordinarily a statute is construed prospectively
unless it is made retrospective by express words or
necessary intendment; but, the learned Attorney-
General submits, the fact that a statute is expressly
or by necessary implication made retrospective, does
not, by itself, furnish any cogent reason for saying that
the statute is prima. facie unfair and, therefore,
unreasonable. While I see some force in this argument
I am, nevertheless, not convinced that the fact of
the statute being given retrospective operation may
not be properly taken into consideration in
determining the reasonableness of the restriction imposed
in the interest of the general public. Nor am I satisfied
that the loss occasioned to the purchaser by reducing,
without any abatement of the 'purchase price, an estate in
possession into one in reversion may not also be taken into
account in determining the reasonableness of the
restrictions permissible under article 19 (5). As said by
my Lord the Chief justice in The State of Madras v. V.G.
Row(1)
(I) [1952] S.C.R. 597 at 7.607.
627
"It is important in this context to bear in mind that
the test of reasonableness, wherever prescribed, should
be applied to each individual statute impugned, and no
abstract standard, or general pattern, of reasonableness
can be laid' down as applicable to all cases. The nature
of the right alleged to have been infringed, the underlying
purpose of the restrictions imposed, the extent and urgency
of the evil sought to be. remedied thereby, the
disproportion of the imposition, the prevailing
conditions at the time, should all enter into the judicial
verdict."
As regards ,the third element, the High Court has
pointed out that no suggestion had been made before it
that the number of pending suits or proceeding for
ejectment of tenants was abnormally large or that there
was any other cogent reason for introducing the impugned
section in the amending Act. Indeed, in the later case of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 59
Iswari Prasad v. N.R. Sen(1) a special bench of the same
High Court, consisting of three learned Judges including
the two who had decided the case under appeal before us,
has distinguished the very judgment from the one then
under appeal, and in doing so, laid great emphasis on
the absence of any such suggestion in this case. The
High Court held that those circumstances were present in
the later case and accordingly held that the law impugned
in the later case was not unconstitutional.
It is, indeed, very unfortunate that several important
matters which would have assisted the High Court in
arriving at a right conclusion as to the reasonableness of
the restrictions imposed by the impugned section were
not brought to the notice of the High Court. Thus, for
example, the statement of objects and reasons appended
to the Bill which eventually became the amending Act does
not appear to have been placed before the High Court. The
statement of the objects and, reasons appended to the
Bill quite clearly refers to the great hardship caused
by the application of the old section 37 to a large
number of people in the urban area and particularly in
Calcutta
(1) 55 C.W.N. 719 at p. 727.
628
and its suburbs where the then prevailing phenomenal
increase in land values had supplied the necessary
incentive to speculative purchasers in exploiting that
section for unwarranted large-scale eviction and
maintains, according to the sponsor-of the Bill, that such
large-scale evictions necessitated the enlargement of
the scope of protection of that section, with due safeguards
for the securing of Government revenue. It is well settled
by this court that the statement of objects and reasons is
not admissible as an aid to the construction of a statute
(see Aswini Kumar Ghose v. Arabinda Bose(1)) and 1 am not,
therefore, referring to it for the purpose of construing
any part of the Act or of ascertaining the meaning of any
word used in the Act but I am referring to it only for the
limited purpose of ascertaining the conditions prevailing at
the time which actuated the sponsor of the Bill to introduce
the same and the extent and urgency of the evil which he
sought to remedy. Those are all matters which, as already
stated, must enter into the judicial verdict as to the
reasonableness of the restrictions which article 19 (5)
permits to be imposed on the exercise of the right
guaranteed by article 19 (1)(f). Further, there is
another significant fact which does not appear to have been
pressed on the attention of the High Court. The Bill had
been. introduced in the Legislature on the 23rd March,
1949, and was referred to a select committee. On the
25th April, 1949, when the Bengal Legislature was not in
session West Bengal Ordinance No. 1 of 1949 was passed, The
two preambles to that Ordinance recited as follows:
"Whereas it is expedient, pending the enactment of
further legislation, to provide for the temporary stay
of certain suits, proceedings and appeals in pursuance of
the Act:
And whereas the West Bengal Legislature is not in
session and the Governor is satisfied that
circumstances exist which render it necessary for him to
take immediate action '"
The fact that an Ordinance had to be passed pending the
passing of this Bill and the preambles to the
(1) [1953] S.C.R. 1.
629
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 59
Ordinance do undoubtedly indicate that, in the opinion
of the authorities, the then prevailing conditions
disclosed a serious evil which urgently necessitated
the taking of immediate action. Further, it appears from
the judgment delivered by the High Court on the
application subsequently made by the State for leave to
appeal to this court that a number of cases were pending
before the courts in which the same question was involved.
This is also a circumstance which was not brought to the
notice of the High Court before the judgment under
appeal was pronounced. Finally, in the judgment under
appeal I find no reference to the proviso to the new
section 37 which enlarges, as it were, by way of
compensation for the loss of the right of ejectment, the
purchaser's right to claim enhancement of rent much
beyond the very limited right of enhancement of rent
which, under the old section, was confined only to the
fourth excepted under-tenures. Then there is the fact,
found by the High Court, that land values had gone up so
high that auction-purchasers could now be found who, even
without the right to eject the under-tenants, would
willingly pay a sum much in excess of the arrears of
Government revenue which remains constant since the
permanent settlement. The cumulative effect of the
foregoing facts which were not placed before the High Court
much outweighs the consideration of the pecuniary
loss of the respondent, Subodh Gopal Bose, as the auction-
purchaser and in the circumstances the infliction of
the loss of the right to eject under-tenants can only be
regarded as a reasonable restriction permitted by
article 19(5) to be imposed on the exercise of the right
guaranteed under article 19(1) (f). In my judgment the
reasons for which the High Court declared section 7 of the
amending Act to be ultra vires the Constitution are no
longer tenable in view of the circumstances now before us
which were not brought to the notice of the High Court and
the decision of the High Court cannot, therefore, be
sustained.
An alternative-argument, however, has been raised by
learned advocate for the respondent, Subodh Gopal
Bose, that the impugned section violates the
630
fundamental right secured to him by article 31(2) of the
Constitution and is, therefore, void under article 13(1).
The contention, shortly put, is that the right, conferred
by the old section 37 to avoid and annul the under-
tenures and to eject the under-tenants is, by
itself,"property" anti that as the new section 37 has
taken away that property without having made any
provision for I compensation there for the impugned section
is unconstitutional in that it violates the provisions
of article 31 (2).
The Bill which eventually became the Bengal Land Revenue
Sales (West Bengal Amendment) Act, 1950, was introduced
in the West Bengal Legislature on the 23rd March, 1949, and
after having been passed by the Legislature it received
the assent of the Governor on the 15th March, 1950. The
Bill was, therefore, pending in the West Bengal Legislature
when the Constitution ,of India came into force and was
passed into law after the date of the Constitution. It
does not appear, however, that the Bill was reserved for
the consideration of the President or received his
assent. Therefore, the impugned law cannot claim the
protection of article 31 (4) and, what is more, if it is
such a law as is referred to in clause (2) of article 31,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 59
then, by virtue of clause (3), it cannot have any effect at
all. The question, therefore, is as to whether the
impugned section is or is not such a law as is
referred to in article 31(2). The question requires, for
a proper answer, a close scrutiny of the provisions of
article 31 and other relevant articles of the
Constitution bearing on it.
At the outset it is well to bear in mind the decision of
this court in A.K. Gopalan's case(1), explaining the
correlation between the provisions of sub-clauses (a) to
(e) and (g) of clause (1) of article 19 and articles 20, 21
and 22 of the Constitution. Kania C.J., at page 101, my
Lord the present Chief Justice at pages 191-192, Mahajan
J., at page 229, Mukherjea J., at pages 255256 and I at
pages 302-306 expressed the view that the validity of
the Preventive Detention Act could not be judged by the
provisions of article 19. The majority
[1950] S.C.R. 88.
631
of the Bench took the view that the rights conferred by
article 19(1) (a) to (e) and (g) could be enjoyed only so
long as the citizen was free and had the liberty of his
person but that, the moment he was lawfully deprived of
his personal liberty under article 21 he ceased to
have the rightsguaranteed by article 19 (I)
(a) to (e) and (g). The result of this part of the deci
sion in A.K. Gopalan's case(1) was summarised in
the later case of Ram Singh v. The State of Delhi(2), by my
Lord the present Chief Justice in the judgment
that he delivered on behalf of himself, Kania C. 1,and
myself. Said his Lordship at pages 455-456:
"Although personal liberty has a content sufficiently
comprehensive to includei the freedoms enumerated in
article 19 (1), and its deprivation would result in the
extinction of those freedoms, the Constitution has
treated these civil liberties as distinct fundamental rights
and made separate provisions in article 19 and articles 21
and 22 as to the limitations and conditions subject to
which alone they could be taken away of abridged. The
interpretation of these articles and their correlation
were elaborately dealt with by the full court in
Gopalan's case(1). The question arose whether section 3 of
the Act was a law imposing restrictions on "the right to
move freely throughout the territory of India"
guaranteed under article 19 (1) (d) and, as such, was
liable to be tested with reference to its reasonableness
under clause (5) of that article. It was decided by a
majority of 5 to 1 that a law which authorises deprivation
of personal liberty did not fall within the purview of
article 19 and its'validity was not be judged by the
criteria indicated in that article but depended on its
compliance with the requirements of articles 21 and 22, and
as section 3 satisfied those requirements, it was
constitutional."
Mahajan J., who by a separate judgment dissented from the
majority on another point, not material for our present
purpose, said at page 467:
"On the other points argued in the case I agree
judgment of Sastri J."
(1) [1950] S.C.R. 88. (9) [1951] S.C.R. 451.
632
It must, therefore, be regarded as settled that the
freedom referred to in article 19 (1) sub-clauses (a) to
(e) and (g) are guaranteed to a citizen of India while he is
a free man. These freedoms, even when they are so available,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 59
are, however, not absolute and unbridled licence but are
subject to social control in that reasonable restrictions
may be imposed on them by law as indicated in clauses (2) to
(6) of article 19. But as soon as the citizen is lawfully
deprived of his personal liberty as a result of detention,
punitive or preventive, he loses his capacity to exercise
the several rights enumerated in sub-clauses (a) to (e) and
(g) of article 19 (1) and cannot complain of the infraction
of any of those rights. The validity of the law which
deprived a citizen of his personal liberty which
inevitably destroys his rights under the sub-clauses
mentioned above cannot be judged by the test of
reasonableness laid down in clauses (2) to (6) of article
19 but falls to be determined according to the provisions
of articles 20, 21 and 22 of the Constitution. This, I
apprehend, is the result of the two decisions of this court
referred to above.
Such being the correct correlation between article (1)
sub-clauses (a) to (e) and (g) on the one hand and article
21 on the other, the question necessarily arises as to the
correlation between article 19 (1)(f) and article 31.
Article 19 (1)(f) guarantees to a citizen,as one of his
freedoms, the right to acquire, hold and dispose of
property but reasonable restrictions may be imposed on the
exercise of that right to the extent indicated in clause
(5). Article 31, as its heading shows guarantees to all
persons, citizens and non-citizens the "right to
property" as a fundamental right to the extent therein
mentioned. What, I ask myself, is the correlation between
article 19 (1) (f) read with article 19 (5) and article 31
? If, as held by my Lord in A.K. Gopalan's
case(1) at page 191, sub-clauses (a) to (e) and (g) of
article 19 (1) read with the relevant clauses (2) to (6)
"presuppose that the citizen to whom the possession of
these fundamental rights is secured retains the substratum
of personal freedom on which alone the enjoyment of these
rights necessarily
(1) [1950] S.C.R. 88.
633
rests", it must follow logically that article 19 (1)(f) read
with article 19 (5) must likewise presuppose that the
person to whom that fundamental right is guaranteed
retains his property over or with respect to which alone
that right may be exercised. I found myself unable to
escape from this logical conclusion and so I said in A.K.
Gopalan's case at pages 304-305:
"But suppose a person loses his property by
reason of its having been compulsorily acquired under
article 31 he loses his right to hold that property and
cannot complain that his fundamental right under subclause
(f) of clause (1) of article 19 has been infringed. It
follows that the rights enumerated in article 19 (1) subsist
while the citizen has the legal capacity to exercise
them. If his capacity to exercise them is gone, by reason
of lawful conviction with respect to the rights in sub-
clauses (a) to (e) and (g), or by reason of a lawful
compulsory acquisition with respect to the right in sub-
clause (f), he ceases to have those rights while his
incapacity lasts."
I reiterated the same opinion in my judgment in
ChiranJitlal's case(1). Nothing that I have heard on the
present occasion has shaken the opinion I expressed in those
cases as to the correlation of article 19 (1) (f) read
with article 19 (5) and article 31 of our
Constitution.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 59
A suggestion was thrown out by my Lord in course of
arguments, that article 19 (1) (f) was concerned only with
the abstract right and capacity to acquire, hold and
dispose of property and had no reference or relation to
any rights in any particular property but that article 31
only was concerned with the right to a concrete property and
there was no correlation between the two articles. The
matter, however, was not argued by either side and I am not
prepared to express any final opinion on it. For the
purpose of this appeal I am content to proceed on the
footing that article 19 relates to abstract right as well
as to right to concrete property.
(I) [1950] S.C.R. 869 at p. 919.
4--95 S.C.I./59
634
I now turn to article 31 which appears under the heading
"right to Property". The clauses of that article which
are material for the purposes of determining the question in
debate run as follows-:
"(1) No person shall be deprived of his property save
by authority of law.
(2) No property, movable or immovable, including any
interest in, or in any company owing, any commercial
or industrial undertaking, shall be taken possession
01: or acquired for public purposes under any law
authorising the taking of such possession or such
acquisition, unless the law provides for compensation
for the property taken possession of or acquired and either
fixes the amount of the compensation, or specifies the
principles on which, and the manner in which, the
compensation is to be determined and given.
* * * *
(5) Nothing in clause (2) shall affect-
(a) the provisions of any existing law other than a
law to which the provisions of clause (6) apply, or
(b) the provisions of any law which the State may
hereafter make-
(i) for the purpose of imposing or levying any tax or
penalty, or
(ii) for the promotion of public health or the
prevention of danger to life or property, or
(iii) in pursuance of any agreement entered into
between the Government of the Dominion of India or the
Government of India and the Government of any other
country, or otherwise, with respect to property declared
by law to be evacuee property."
It is suggested that the two clauses are not
mutually exclusive but must be read together and that
they are only concerned with what has -been described as
the State's power of eminent domain which, according to
Professor Willis, means the legal capacity of sovereignty,
or one of its governmental organs, to take private
property for a public use, upon the
635
payment of just compensation. Reference is made to
certain passages culled from the works of eminent ancient
writers like the Dutch publicist and statesman Hugo Grotius
who flourished in the' 17th century and William
Blackstone the celebrated English jurist who wrote his
Commentaries round about 1769 and from Judge Cooley's well
known book on Constitutional Limitations to show that
from early times jurists have insisted on three things as
pre-requisites for 'the exercise of this power of eminent
domain, namely, (1) the authority of law, (2) the
requirement of public use, and (3) the payment of just
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 59
compensation. These three prerequisites which constitute
limitations on the power of eminent domain are said to have
been epitomised in 1791 in the last two clauses of the
Fifth Amendment to the Constitution of the United States of
America. The contention is that article 31 reproduces
those three limitations on the power of eminent domain,
namely, that clause (1) announces the necessity for
legislative sanction as a pre-requisite for the exercise
of the power, thus protecting all persons against
expropriation by the State acting through its executive
organ, the Government, and that' clause (2) reproduces the
necessity of a public purpose and payment of
compensation. It is concluded that these important
limitations on the State's power of eminent domain are
designed to protect a person against arbitrary
deprivation of his property and they constitute his
fundamental right in relation to his property.
The proposition thus formulated is certainly
attractive and, indeed, has found favour with my learned
colleagues but appears to me to be open to certain
objections. I say in all humility that I consider the
method of approach and the line of reasoning in
support of that proposition entirely fallacious and
wrong. The steps in the argument seem to be (i)that the
power of eminent domain and the limitations thereon as
explained by eminent jurists are incorporated in the
Fifth Amendment to the Constitution of the United States,
(ii) that clauses (1) and (2) of article 31 are concerned
with the same topic of
636
eminent domain and (iii) that, therefore, clauses (1) and
(2) of article 31 must be read as having reproduced the
same limitations on the power of eminent domain. This
line of reasoning amounts, in effect, to likening one thing
with another thing and then saying that as that other thing
means such and such this thing must, therefore, bear
the same meaning--a method which has been deprecated by
Lord Halsbury in Styles' case(1). Further, if this line
of reasoning were correct or permissible then we might as
'well have said,as indeed we were asked to say, that
article 21reproduced the American constitutional
limitationsa gainst deprivation of life and personal
liberties and that, therefore, the expression
"procedure established by law" to be found in article 21
meant exactly what the expression "dueprocess of law"
occurring in the Fifth Amendmentdid. This we resolutely
and definitely declinedto do in A. K. Gopalan's case
(supra). At page 108 of the report of that case Kania
C-I- expressed the view that that line of reasoning was not
proper and was misleading. My Lord the present Chief
Justice' at page'197 repelled that contention. After
quoting the words of Madison about the great and
essential rights of the people" my Lord concluded at page
199:
"This has been translated into positive law in
Part III of the Indian Constitution, and I agree that in
construing these provisions the high purpose and spirit
of the Preamble as well as the constitutional
significance of a Declaration of Fundamental Rights
should be borne in mind.This, however, is not to say that
the languageof the provisions should be stretched to
square withthis or that constitutional theory in
disregard of the cardinal rule of interpretation of any
enactment, constitutional or other, that its spirit, no
less than its intendment should be collected primarily
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 59
from the natural meaning of the words used".
After noticing the argument of learned counsel for the
petitioner Mukherjea J. at page 266 et scq found
(1) [1889] L.R. 14 A.C. 381.
637
It impossible to introduce the American doctrine of due
process of law into our article 21. If the language of our
articlc 21 could not be stretched to square with the
American due process clause so as to give effect to the
suggested enlargement of the scope of our fundamental
right to life and personal liberties but had to be
interpreted by giving the words their ordinary
natural meaning I cannot see why the language of
article 31 should not bc construed in the usual way so as
to give effect to the plain intention our Constitution-
makers. I say with the utmost humility that the
proper method of approach is to adopt the golden rule of
construction referred to in the judgment of my Lord quoted
above and not to start off with any kind of assumption
that our Constitution must be regarded as having reproduced
this or that doctrine.
Apart from the erroneous line of reasoning referred to
above, the conclusion arrived at by following that
reasoning appears to me to be open to serious objections
on merits also. If it were correct to say that the two.
clauses, (1) and (2), of article 31 deal with the same
topic of the State's power of eminent domain which is
inherent in its sovereignty then, as I pointed out in my
judgment in Chiranjitlal's case(1) at page 925, clause
(1). must be held to be wholly redundant and clause (2)
by itself would have sufficed, for the necessity of a law
is quite clearly implicit in clause (2) itself which alone
would have served as a protection against State action
through its executive organ, the government. Another and
more serious objection against reading both the clauses
as dealing only with the same topic of eminent domain is,
as pointed out by me in Chiranjitlals case (supra), that
such construction will place the deprivation of property
otherwise than by the taking of possession or acquisition of
it outside the pale of all constitutional protection. As
I said there and as I shall also do hereafter in detail,
one can conceive of circumstances where the State, in
exercise of the State's police power, may have to
deprive a person of his property without taking possession
of it or acquiring it within the meaning of
(1) [1950] S.C.R. 869.
638
article 31(2). This police power of the State is also one of
the powers inherent in the sovereignty of the State. The
suggestion that the first two clauses of article 31 should
be read as dealing only with eminent domain will, if
accepted, lead us to hold that our Constitution has not
dealt with the State's police power to deprive a person of
his property and has not provided for us any protection
against the State by imposing any limitation on the
exercise of that power. The suggested construction
will render the enunciation of our fundamental "Right
to property" patently incomplete. It has been urged
that the State's police power is recognised and
regulated by article 19 clauses (2) to (6) and article 31
(5) (b). I shall deal with that argument in detail
hereafter and show that it is quite untenable. Apart
from that argument, the result of reading article
31, clauses (1) and (2) together will be to hold that our
Constitution has not provided for us any protection
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 59
against the exercise of the State's police power
either by the Legislature or by the executive. Such a
conclusion I am not prepared to accept. Accordingly I thus
explained what I conceived to be the true scope and effect
of clauses (1) and (2) of article 31 in Chiranjitlal's case
(supra) at page 925, namely, that clause (1) deals with
deprivation of property in exercise of police power and
enunciates the restriction which our Constitution-makers
thought necessary or sufficient to be placed on the
exercise of that power, namely, that such power can be
exercised only by authority of law and not by a mere
executive fiat and that clause (2) deals with the
exercise of the power of eminent domain and places
limitations on the exercise of that power. It is these
limitations which constitute our fundamental right
against the State's power of eminent domain. The language
used in article 31(2) clearly indicates beyond doubt
that the power of eminent domain as adopted in our
Constitution is concerned with only that kind of
deprivation of property which is brought about by the taking
of possession or acquisition contemplated by that clause.
I again adverted to this matter in The State of Bihar v.
Maharajadhiraja
639
Kameshwar Singh of Darbhanga(1 ). It is said that such a
construction of article 31(1) instead of enunciating any
fundamental right of the people at all will, on the
contrary, declare the fundamental right of the Legislature
to deprive a person of his property by merely. enacting a
law. This appears to me to be a very superficial.
criticism which completely overlooks that article 31(1),
as far as it goes, does lay down a fundamental right by
imposing a limitation at least on the executive power. It
is this limitation placed on the executive power
that constitutes our fundamental right to property
under article31(1). I see no compelling or cogent reason
for changing the views I expressed on this point in my
judgments in those two cases.
It is necessary, at this stage, to examine the several
other objections that have been taken to the correctness
of the interpretation suggested by me. It is said that
the State's. police power in relation to the citizens' right
to freedom is fully recognised in article 19. Clause
(1) of that article secures to the citizens of India
seven specified rights but clauses (2) to (6) permit
the State to make laws imposing reasonable limitations on
the exercise of these seven rights as therein mentioned.
The argument is that clauses (2) to (6)recognise the
police power of the State in that they permit it to make
laws imposing restrictions on the seven rights of the
citizens and that they at the same time regulate that power
by placing limitations upon it by requiring that the
restrictions which may be imposed must be reasonable. It
is then pointed out that the State's police power is
further saved by article 31(5) (b) and it is concluded
that the police power having been recognised and provided
for in article 19 and article 31(5) (b)- there is no
necessity to read article 31(1) as concerned with the
State's police power at all. I see no force or validity
in the aforesaid objection.
I first deal with the objection in so far as it is
founded on the recognition of the State's police power
in
(1) [1952] S.C.R. 889 at pp. 988-989.
article 19. I say that there is no force in this objection
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 59
for the following reasons:
(a) article 19(1) enumerates seven rights to freedom and
guarantees them to the citizens of India. Clauses (2) to
(6) of that article recognise and regulate the exercise
of police power over those rights by the State through its
legislative organ, for the State is, by those clauses,
permitted to impose reasonable restrictions by law only.
Therefore, it follows that article 19 does not give any
protection to the citizens against the executive
government in respect of even those seven rights. The
citizens, however, have protection against the executive
as well as the Legislature under article 21 but that
protection covers life and personal liberties only.
Where, then, is the citizen's protection against the
exercise of police power by the executive over his
property? It is nowhere except in article 31(1) as
construed by me.
(b) Article 19 guarantees the seven rights of the
citizens only and recognises and regulates the exercise
of police power over those rights by the legislative
organ of the State. A non-citizen is entirely outside
that article and consequently he has none of those seven
rights and has no protection against the State under that
article. He has, therefore, to fail back upon article 21 and
contended that all his personal liberties including the
six rights enunciated in article 19(1)(a) to (e) and (g)are
protected against the exercise of police power by the
State through its executive or legislative limb. But
article 21, as already observed, only protects him from
deprivation of life and personal liberties. Where, then,
is the non-citizen's protection against deprivation of his
property by the exercise of police power by the executive
government. It is no where unless article 31(1) is
read in the way I have suggested.
(c) Finally, clauses (2) to (6) of article 19 authorise
the State to make laws imposing reasonable
"restrictions" on the citizen's rights under clause (1).
It is true that in A. K. Gopalan's case (supra) Fazl Ali
J. in his dissenting judgment took the view that
641
"restrictions" might cover the case of total
deprivation, but none of the other members of that Bench
accepted that position. Kania C.J. said at page 106:
"Therefore, article 19 (5) cannot apply to a
substantive law depriving a citizen of personal liberty. I
am unable to accept the contention that the word
'deprivation' includes within its scope "restriction"
when interpreting article 21".
My Lord the present Chief Justice expressed his views at
p. 191 in the words following:
"The use of the word 'restrictions' in the
various sub-clauses seems to imply, in the context,
that the rights guaranteed by the article are still
capable of being exercised, and to exclude the idea of
incarceration though the words 'restriction' and
'deprivation' are sometimes used as interchangeable
terms, as restriction may reach a point where it may well
amount to deprivation. Read as a whole and viewed in
its setting among the group of provisions (articles 19-
22) relating to 'Right to Freedom', article 19 seems
to my mind to presuppose that the citizen to whom the
possession of these fundamental fights is secured retails
the substratum of personal 'freedom on which alone the
enjoyment of these rights necessarily rests".
The contrary view expressed by a Bench of the Allahabad
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 59
High Court was rejected by my Lord at the end of page 193
with the following remark:
" ........ their major premise that deprivation of
personal liberty was a 'restriction' within the mean-
ing of article 19 is, in my judgment, erroneous'. Mahajan J.
expressed the same view in the following passage at page 227
in his judgment in that case:
"Preventive detention in substance is a negation the
freedom of locomotion guaranteed under article
19(1)(d) but it cannot be said that it merely restricts it".
Mukherjea J. said at page 256:
..... and the purpose of article 19 is to indicate
the limits within which the State could, by legislation,
642
impose restrictions on the exercise of these fights by
the individuals. The reasonableness or otherwise of
such legislation can indeed be determined by the court to
the extent laid down in the several clauses of'
article 19, though no such review is permissible with regard
to laws relating to deprivation oflife and personal
liberty".
His Lordship concluded thus at page 264:
"The result is that, in my opinion, the first
contention raised by Mr. Nambiar cannot succeed and it
must be held that we are not entitled to examine the
reasonableness or otherwise of the Preventive Detention
Act and see whether it is within the permissible bounds
specified in clause (5) of article 19".
After discussing the matter at some length at pages 302-
305 I concluded on page 306:
"In my judgment article 19 has no beating on the
question of the validity or otherwise of preventive
detention and, that being so, clause (5) which prescribes
a test of reasonableness to be defined and applied by
the court has no application at all".
A suggestion was made that although in A.K. Gopalan's
case (supra) the word "restriction" occurring in clauses
(2) to (6) could not, in its application to, sub-clauses (a)
to (e) and (g) be taken as extending to "deprivation ",
there is no compelling reason to hold that the word
"restriction" occurring in clause (5) may not in its
application to sub-clause (f) cover "derivation" There
is no substance in this contention. Clause (5) covers
sub-clauses (d), (e) and (f) and surely one and the same
word "restriction" used in one and the same clause (5)
cannot have one meaning in its application to sub-clauses
(d) and (e) and a different meaning and connotation in
its application to subclause (f). Further, the reasons
why, in A.K. Gopalan's case (supra), that word was given a
narrower meaning in its application to sub-clauses (a) to
(e) and (g) apply mutatis mutandis in its application to
sub-clause (f) read' in correlation to article 31. It is,
therefore, clear from the decision of this court in
A.K. Gopalan's case (supra) that article 19 does not give
any protection
643
against deprivation of property as distinct from mere
restriction imposed on the right 'to property. For
protection against deprivation of life and personal
liberties including the several rights to freedom
enunciated in sub-clauses (a) to (e) and (g) of article 19
by the exercise of police power by the legislative or
the executive organ of the State the citizen as well as
the non-citizen will have to look to article 21. For
protection against the deprivation of property by
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 59
legislative or executive State action both the citizen
and the non-citizen will have to rely on article 31.
If, as I shall show presently, clause (5) (b) were
inserted in article 31 ex abundanti cautela and not as a
substantive provision defining the ambit or scope of the
police power or formulating any limitation on that power,
then the protection against deprivation of property will
have to be derived from only clauses (1) and (2). If,
in such circumstances, both those clauses are read in the
way suggested by learned counsel for the respondent,
Subodh Gopal Bose, namely, as dealing only with the topic of
the State's power of eminent domain then there will
remain no escape from the conclusion that in the
Republic of India neither a citizen nor a non-citizen has
any constitutional protection against the exercise of
police power either by the legislative or executive organ
of the State. On the other hand, if the construction
suggested by me be adopted, everybody, citizen or non-
citizen, will have, under article 31 (2), full protection
against the exercise the power of eminent domain by
both the executive as well as Legislature and in addition
to that will also have protection against the exercise
of police power over property by the executive. The
preservation of this protection alone, even if some may
regard it as very meagre, is, to my mind, a sufficiently
cogent reason for adopting the construction suggested by me
in preference to the other construction which, if
adopted, will not save even this meagre protection.
The next objection to the conclusion arrived at by me
is that police power of depriving a person of his property
is amply provided for in article 31 (5) (b) and it is not
necessary to read it into article 31 (1).
644
A perusal of clause (5) of article 31 which 1 have already
quoted will at once show that that clause excepts
certain laws from the operation of clause (2) only. It will
also appear that the exception covers, under sub-clause
(b), only certain kinds of future laws. Item (i) under sub-
clause (b) comprises future laws imposing or levying any
tax or penalty. Item (ii) under that sub-clause saves future
laws for the promotion public health or the prevention of
danger to life or property. It is said that this clause
(5)(b)(ii)saves laws to be made in exercise of the State's
police power. The argument is that the State's police
power of imposing "restriction" on the citizens'
right to acquire, hold and dispose of property is
recognised and controlled by clause (5) of article 19 and
that when it becomes necessary for the police power
to extend beyond "restrictions" and to inflict
"deprivation" property it can do so by the kind of law
which is, by clause (5)(b) (ii) of article 31, saved from
the operation of clause (2). It is pointed out that in the
matter of imposition of "restrictions" on the exercise
of the right to acquire, hold and dispose of property the
only limitation on the police power is that the
"restrictions" to be imposed by law must be reasonable
as indicated in article 19 (5) but that in the matter
of "deprivation" of property by authority of law under
article 31 the limitation on the police power is more
'stringent, namely, that such law may be made only for the
promotion of public health or the prevention of danger to
life or property as mentioned in clause (5) (b) (ii)
and for no other purpose. The argument thus formulated is
attractive for its simplicity and has the appearance
of plausibility but cannot stand the test of close
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 59
scrutiny. I say so far the following reasons :-
(i) Every student of Constitutional law is well
aware that constitutional lawyers classify the State'
sovereign power into three categories, namely,
the power of taxation, the power of eminent
domain and the police power. These are distinct
categories of sovereign powers with different
connotations subserving different needs of the society and
the State. If both
645
clauses (1) and (2) of article 31 deal with and impose
restrictions only on the State's 'power of eminent
domain, then there was no real necessity for exempting by
article 31 (5)(b)the taxation power or the police power from
the operation of the power of eminent domain, for, ex
hypothesis, the two first mentioned powers, being
distinct from the power of eminent domain, did not and
could not fail within the last mentioned power and,
therefore, needed no exemption. Even a casual student of
Constitutional law knows that money is one of the kinds of
property which, it is said, cannot be taken in exercise of
the State's power of eminent domain and that being so there
could be no necessity for exempting laws imposing taxes
from the operation of article 31 (2) which embodies only
the doctrine of eminent domain. Further, the police
power, like the pOwer of taxation and the power of
eminent domain, is an attribute of sovereignty itself.It
is, as Professor Willis calls-it, "the offspring
of political necessity". This coercive legal
capacity is inherent in every sovereign and
requires no specific reservation. Indeed, in the
Constitution of the United States there. is no
specific reservation of the police power of the State.
There was, therefore, no necessity for expressly saving
the police power of our State by a constitutional
provision. Why, then, was clause (5) (b) (ii) inserted
in article 31 at all ? The answer will become obvious if it
is remembered that it is extremely difficult to define
precisely the ambit and scope of the State's police power
over or in relation to private property and some of the
instances and forms of the exercise of such police power
over or in relation to property may superficially resemble
the exercise of the power of eminent domain. The
conclusion, therefore, becomes irresistible that although
clause (5)(b)(ii) was not strictly speaking necessary
for saving the police power, nevertheless, our
Constitution-makers, out of abundant caution and with a
view to avoid any possible argument, thought fit to insert
sub-clause (5) (b) (ii)in article 31. It is impossible to
hold that the entire police power of the State to deprive a
person of his property is contained in that sub-clause.
646
(ii) According to the argument article 31 (5)(b) saves
the power of' the State to make certain laws in exercise
of its power of taxation or its police power. It will be
noticed that it does not give us any protection against
the Legislature by laying down any test for the validity
of those laws. The acceptance of the suggested construction
will mean that laws thus saved may be as archaic,
offensive and unreasonable as the legislature may choose
to make them so long as they relate to the subjects
referred to in that sub-clause. If our sense of the
sanctity of private property is not shocked at the
prospect of leaving our property at the unfettered mercy of
the Legislature in respect of laws of the kind specified in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 59
clause (5) (b) (ii), I do not see why the construction
suggested by me should be rejected only on the ground
that it will give a carte blanche to the Legislature to
make any law it pleases for the deprivation of property
in exercise of police power.
(iii) Article 31 (5) (b) gives us no protection
against the executive with respect to the exercise of these
powers. Take article 31 (5)(b)(i)first. That it was. not
intended to be a protection against the executive in
the exercise of the power of taxation cannot for a
moment be doubted, for if it were so intended, there was no
necessity, then, for inserting into the Constitution
article 265 providing that no taxes. shall be levied or
collected except by authority of law, which clearly means
that the executive cannot, on its own authority, levy or
collect any tax. It is, therefore, quite plain that
article 31 (5)(b)(i)was not designed to give any protection
against the executive in the matter of the exercise of the
power of taxation and that our Constitution-makers,
precisely for that reason, considered that it was
necessary that such protection should be given
expressly and, therefore, inserted article 265. Likewise,
article 31 (5)(b)(ii) saves certain laws and does not in
terms give us any protection against the exercise of police
power by the executive. Where, then, is our
protection against deprivation of property by the exercise
of police power by the executive Government? It is
nowhere to be
647
found in our Constitution except in article 31(1). This, to
my mind, clearly indicates that article 31(1)was designed
to formulate a fundamental right against deprivation of
property by the exercise' of police power by the executive
arm of the State. The protection against the exercise of
the power of eminent domain by the executive government is
to be found in the requirement of a law which alone may
authorise the taking of possession or the acquisition of
the property which, as will be explained later, is
implicit in article 31(2) itself and it is, therefore, not
necessary to have recourse to article 31(1) to secure that
protection.
(iv) To say that the entire police power of the State to
deprive a person of his property is to be found only in
article 31(5)(b)(ii) will be to confine the exercise of that
power by the Legislature within a very narrow and inelastic
limit, namely, only for the promotion of public health
or the prevention of danger to life or property. On the
assumption that article 31 (5)(b)(ii) is concerned with
saving the police power it may cover the laws
authorising the destruction of rotten or adulterated
foodstuff or the pulling down of a dangerous dilapidated
building or the demolition a building to prevent fire from
spreading. But it is quite easy to contemplate laws which do
not fall within article 31 (5) (b) (ii) but are,
nevertheless, made mistakably in exercise of the
State's police power. Consider the case of a law
authorising the seizure and destruction of, say, obscene
pictures or blasphemous literature. Such law is clearly
necessary for the promotion or protection of public
morality. Nobody can for a moment think of contending that
such law will be void if it does not provide for
compensation and yet that will be the result if we are to
accept the suggested construction, for such a law made
for protecting public morality is obviously not covered
by article 31 (5)(b)(ii) and will, according to such
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 59
construction, be hit by article 31(2). A construction which
leads to the astounding result of compelling the State to
buy up obscene pictures and.blasphemous literature if it
desires to preserve public morality cannot merit serious
consideration and must be discarded at once. Take
648
the case of a law providing for the compulsory contribution
by all banks based upon the average daily deposits for
the purpose of creating a guarantee fund to secure the full
repayment of deposits to all depositors in case any such
bank becomes insolvent and i$ ordered to be wound up.
This law quite clearly deprives the banks of property in
the shape of their respective contributions and it is not
covered by clause (5) (b) (i) as it cannot be said to impose
a tax or a penalty and does not fail within (5) (b) (ii)
either, for it is not a law for the promotion of public
health or for the prevention of danger to life or
property. This law being thus outside clause (5)(b)cannot,
according to the suggested construction be supported as
an instance of exercise of police power for, ex hypothesis
the entire police power with regard to deprivation of
property is contained in clause (5)(b)and consequently the
law I have mentioned will not be protected from the
operation of article 31(2) and must be void for not
providing any compensation. Yet in the United
States where so much is made of the sanctity of private
property and from where we are prone to draw inspiration in
these matters such a law has been upheld as ,constitutional,
as an instance of a valid exercise of the State's-police
power "which extends to all the great public needs." [See
Noble State Bank v. Haskell(1)]. Again, suppose there is
a labour dispute between, say, a tramway company and its
workers and the running of the tram cars is stopped. A law
which in such circumstances authorises the State to
take possession of the tram depot and run the tram cars by
the military or other personnel during such emergency for
the convenience of the travelling public is not within
clause (5)(b)(ii) and on this construction will be void if
it does not provide for compensation to the tramway company.
On the suggested construction pushed to its logical
conclusion it will not be possible in future to impose any
social control on the profiteers or blackmarketeers, for a
law controlling and fixing prices of essential supplies will
always deprive them of property of the value to be
measured by the difference between
(1) 219 U.S. 104.
649
the blackmarket price and the controlled price. The
suggested construction may even make it difficult to support
any future law containing provisions similar to those in
the procedure codes or other laws not strictly falling
within the clause (5)(b)(ii)but authorising the seizure of
books, documents or other property or the appointment of
a receiver or sequestrator to take possession of
property, for in all such cases there will be a
"deprivation" of property. It is unnecessary to
multiply instances. The several instances I have just
given above appear to me to furnish ample justification
for rejecting a construction which may make it impossible
for the State to undertake beneficial legislation to
promote social interest and may invalidate laws of the
kind I have mentioned.
(v) Article 31 (5) (b) (ii) saves from the operation of
clause (2) laws to be made in future for the promotion of
public health or the prevention of danger to life or
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 59
property. Obviously it was contemplated that the laws
thus saved would involve the taking of possession or
acquisition of private property, for otherwise there would
be no necessity for the exemption at all. Take the case
of a law authorising the opening out of a congested part
of a town and the acquisition of land for the laying out of
a public park for affording fresh air and other health
amenities to the public. Consider the case of a law
authorising the clearing up of slums and the closing down
of putrid and unhealthy surface drains and acquisition of
land for broadening the lanes so as to lay underground
sewers thereunder. One may also refer to a law authorising
the acquisition of land for the erection of a hospital for
patients suffering from infectious diseases, e.g., plague,
small-pox and cholera. All these laws will ,come under the
heading of promotion of public health or the prevention of
danger to life. According to the suggested construction
the acquisition of property authorised by each of these
laws will be exempt from payment of compensation to the
owner, for these laws are, by clause (5)(b) (ii) exempted
from article 31(2). And yet acquisition of land for such
public purposes is precisely the kind of acquisition which
is always made on payment of
5--95 s.C.I.159
650
compensation under the Land Acquisition Act 1894. A
construction which takes a law made really and
essentially in exercise of the power of eminent domain out
of article 31(2) cannot readily be accepted as cogent or
correct.
(vi) The complexities of modern States constantly
give rise to conflicts between opposing social interest and
it is easy to visualise circumstances when much wider
social control legislation than is envisaged or recognised
in the laws referred to in article 31(5)(b) will be
imperatively necessary. Indeed, as Professor Willoughby
states in his Constitutional Law of the United States,
Vol. III, p. 1774, "the police power knows no definite
limit. It extends to every possible phase of what the Courts
deem to be the public welfare". In the language used by
Holmes J. in Noble State Bank v. Haskell (supra), "it may
be said in a general way that the police power extends to
all the great public needs". In Eubank v. Richmond(1)
the Court said of the police power:
"It extends not only to regulation which
promote the public health, morals, and safety, but to
those which promote the public convenience or the
general prosperity ......It is the most
essential of powers, at times most
insistent, and always one of the least limitable of
the powers of government."
And all the more will such wide police powers be
required in a State which,' like our own, aims at being a
welfare State governed by the directive principles of State
policy such as are to be found in Chapter IV of our
Constitution. To so confine the State's police power
as suggested by learned advocate for the respondent will be
to bring about social stagnation and thereby to retard the
progress of our State. There is nothing in the language of
our Constitution which compels us to adopt such a
construction. In my judgment a construction which is
calculated to produce the undesirable result I have
mentioned must, I feel sure, be rejected.
(1) 226 U.S. 137.
651
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 59
The last objection to reading article31(1) as the
enunciation of the fundamental right against deprivation of
property by the exercise of police power and reading article
31(2)as laying down limitations on the State's power of
eminent domain is that so read article 31 will, in reality,
afford no effective protection at all, for the State will
always exercise its police power under article 31 (1) and
deprive a person of his property without any
compensation by the simple device of making a law and will
never exercise its power of eminent domain under article
31(2). Where, then, it is asked, is our protection against
the State with respect to our property ? The objection
thus formulated overlooks the difference between the
nature and purpose of the two powers which I shall
presently discuss and explain and is not otherwise well
rounded for the following' reasons:
(1) It is incorrect to say that article 31 (1) as
construed by me gives no protection at all. It certainly
gives protection against deprivation of property by
executive fiat just as did that part of the famous 29th
Clause of the Magna Charta which proclaimed that no free
person should be dispossessed of any free tenement of
his except by the law of the land. As pointed out by
Mathews J. in joseph Hurtado v. People of California(1),
by the 29th Clause of the Magna Charta the English Barons
were not providing for security against their own body or
in favour of the commons by limiting the power of Parliament
but were protecting themselves against oppression and
usurpation of the King's prerogatives. In other words,
that clause of the Magna Charta was not designed as a
protection against Parliament at all and indeed did not
purport to formulate any limitation on the Sate's power of
eminent domain but was only intended to be a protection
against the exercise of police power by the highest
executive, the King. There is unmistakably a familiar
ring in the language of our article 31(1) echoing the sound
of the language of the 29th Clause of that great
charter which the English Barons had wrested from their
King. The purpose and function
(1) (1883) 10 U.g. 516 at p. 531.
652
of our article 31(1), as I apprehend it, are the same as
those of the Magna Charta. Our Constitution has
given us ample protection against the executive in
relation to all the three sovereign powers of the State.
Thus the executive cannot, on its own authority, and
without the sanction of a law deprive any person of his
life or personal liberty by reason of article 21 or of his
property because of article 31(1) or take possession of or
acquire private property under article 31 (2) or impose
any tax under article 265. 'Our Constitution makers
evidently considered the protection against deprivation
of property in exercise of police power or of the power of
eminent domain by the executive to be of greater importance
than the protection against deprivation of property
brought about by the exercise of the power of taxation
by the executive, for they found a place for the first
mentioned protection in article 31(1) and (2) set out in
Part III dealing with fundamental rights while they placed
the last mentioned protection in article 265 to be found
in Part XII dealing with finance etc. So with regard to all
the three sovereign powers we have complete protection
against the executive organ of the State.
(2) It is said we have no protection against
legislative tyranny in respect of our property. This
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 59
complaint obviously is not well rounded, for our
Constitution has given us some measure of protection
against the legislature in respect of our property. Thus if
the State exercises its power of eminent domain by taking
possession of or acquiring private property of any
person it must do so upon the three conditions
prescribed by article 31 (2). There is no shorter cut in
such a case. Apart from this the citizens of India
have further protection against the legislature in
respect of their right to acquire, hold and dispose of
property. This right is guaranteed to them by
article 19(1)(f). The Constitution, however, recognises by
clause (5) that the State has police power to
restrict the right in the interest of the general public
or for the protection of the interests of any Scheduled
tribe but prescribes a limitation on this police power
by requiring that the restrictions to be imposed by
653
law must be reasonable. This requirement constitutes the
citizens' fundamental right against the exercise of
police power by the legislature in respect of his fight
under article 19 (1)(f)whilst they are in possession and
enjoyment of this right.
(3) It is then urged that our Constitution, according
to my construction of it, does not give us any protection
against the legislature in the matter of deprivation of
property in exercise of the State's police power. This is
no ground for rejecting my construction, for, on the
construction suggested to the contrary, the position is
exactly the same, for article 31 (5) (b) only saves certain
laws from article 31(2), that is to say, recognises the
police power but does not formulate any test for
determining the validity of those laws which may be as
unreasonable as the legislature may make them. Apart from
this, what, I ask, is our protection against the
legislature in the matter of deprivation of property by
the exercise of the power of taxation ? None. whatever. By
exercising its power of taxation by law the State may
deprive uS, citizen or non-citizen of almost sixteen
annas in the rupee of our income. What, I next ask, is the
protection which our Constitution gives to any person
against the legislature in the matter of deprivation
even of life or personal liberty ? None, except the
requirement of article 21, namely, a procedure to be
established by the legislature itself and a skeleton
procedure prescribed in article 22. In A.K. Gopalan's case
(supra), notwithstanding the reference made to the
epigrammatic observation of Bronson J. in Taylor v. Porte(1)
to the effect that it sounded very much like the
Constitution speaking to the legislature that the
latter could not infringe our right unless it chose to do
so, the majority of this Court declined to question the
wisdom and policy of the Constitution or to stretch
the language of article 21 so as to square it with its own
notions of what the ambit of the right should be but felt
bound to give effect to the plain words of the Constitution.
(See Kania C.J. at page 11, Mukherjea J. at page 277 and
my judgment at page 321). If,
(1) 4 Hill 140.
654
therefore, in the matter of deprivation of property by the
exercise of the State's power of taxation our
Constitution has only given us protection by article 265
against the executive but none whatever against the
legislature and if, in the matter of deprivation of our
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 59
life and personal liberty our Constitution has given us no
better protection against the legislature than the
requirement of a procedure to be established by the
legislature itself: and the skeleton procedure prescribed
by article 22, and seeking that our Constitution has, by
article 31(2), given us protection against the legislature
at least with respect to the exercise of the power of
eminent domain, what is there to complain of ,if, in the
matter 015 deprivation of property by the exercise of the
State's police power, our Constitution has, by article
31 (1), given us protection only against the executive but
none against the legislature ? What is abnormal if our
Constitution has trusted the legislature, as the people of
Great Britain have trusted their Parliament ? Right to life
and personal liberty and the right to private property
still exist in Great Britain in spite of the supremacy of
Parliament. Why should we assume or apprehend that our
Parliament or State legislatures should act like mad men
and deprive us of our property without any rhyme or reason ?
After all our executive government is responsible to
the legislature and the legislature is answerable to
the people. Even if the legislature indulges in occasional
vagaries, we have to put up with it for the time being. That
is the price we must pay for democracy. But the
apprehension of such vagaries can be no justification for
stretching the language of the Constitution to bring it
into line with our notion of what an ideal Constitution
should be. To do so is not to interpret the Constitution
but to make a new Constitution by unmaking the one which the
people of India have given to themselves. That, I
apprehend, is not the function of the court. If the
Constitution, properly construed according to the cardinal
rules of interpretation, appears to some to disclose any
defect or lacuna the appeal must be to the authority
competent to amend the Constitution and not to the court.
655
(4) Further, there may be quite cogent and compelling
reason why our Constitution does not provide for any
protection against the legislature in the matter of
deprivation of property otherwise than by taking of
possession or acquisition of it. It is futile to cling to
our notions of absolute sanctity of individual liberty
or private property and to wishfully think that our
Constitution-makers have enshrined m our Constitution
the notions of individual liberty and private property that
prevailed in the 16th century when Hugo Grotius
flourished or in the 18th century when Blackstone wrote
his Commentaries and when the Federal Constitution of
the United States of America was framed. We must
reconcile ourselves to the plain truth that emphasis has
now unmistakably shifted from the individual to the
community. We cannot overlook that the avowed purpose of
our Constitution is to set up a welfare State by
subordinating the social interest in individual liberty or
property to the larger social interest in the rights of
the community. As already observed, the police power of the
State is "the most essential of powers, at times most
insistent, and always one of the least limitable powers of
the government". Social interests are ever expanding
and are too numerous to enumerate or even to anticipate
and, therefore, it is not possible to circumscribe the
limits of social control to be exercised by the State or
adopt a construction which will confine it within the narrow
limits of article 31 (5) (b) (ii). It must be left to the
State to decide when and how and to what extent it
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 59
should exercise this social control. Our Constitution has
not thought fit to leave the responsibility of depriving
a person of his property, whether it be in exercise of
the power of eminent domain or of the police power, to the
will or caprice of the executive but has left it to that of
the legislature. In the matter of deprivation of
property otherwise than by the taking of possession or by
the acquisition of it within the meaning of article 31 (2)
our Constitution has trusted our legislature and has
not thought fit to impose any limitation on the
legislature's exercise of the State's police power
over
656
private property. Our protection against legislative
tyranny, if any, lies, in ultimate analysis, in a free and
intelligent public opinion which must eventually assert
itself.
Having dealt with the correlation between clauses (1)
and (2) of article 31 as I apprehend it and having
considered and rejected the objections to the
conclusions I have arrived at, I proceed now to examine
and analyse the provisions of clause (2). As I
explained in my judgment in the Darbhanga case (supra) at
pp. 989-990, article 31 (2) has imposed three conditions
on the exercise of the State's power of eminent domain
over private property and those limitations constitute
the protection granted tO the owner of the property as his
fundamental right. It insists that this sovereign power
may be exercised only if it is authorised by a law. It
is, therefore, clear that the executive limb of the
State cannot' exercise this power on its own
authority and without the sanction of law. The taking
of possession or acquisition must be for a public purpose
which implies that this power cannot be exercised except
for implementing a public purpose. It cannot be exercised
for a private purpose. What is a public purpose has been
elaborately dealt with in that case and need not be
discussed over again here. Finally, the law
authorising the taking of possession or acquisition of
the property must provide for compensation.
Compensation, therefore, is payable only when the State
takes possession of or acquires private property.
What, then, is the meaning of the words. "taken
possession of or acquired", and their grammatical
variations as used in article 31 (2) ?
It is pointed out that the last clause of the Fifth
Amendment which deals with eminent domain uses the word
"taken" and it is suggested that as our article 31 (2)
deals with the same topic of eminent domain it will be
reasonable to hold that our article 31 (2) reproduces the
American constitutional limitations and that,
therefore, the expression "taken possession of or
acquired" used in our article 31 (2)
657
must be read as having the same meaning which has been
attributed , by the Judges of the Supreme Court of
the United States to the word "taken" occurring in
their Fifth Amendment. I am quite unable to accept
this construction and the line of reasoning on which it
is founded. In the first place, I deprecate the line
of reasoning which starts by likening one thing with
another and then ends by (imputing the qualities of the
other thing to the first mentioned thing. The cardinal
rule of interpretation is to ascertain the meaning and
effect of an enactment, constitutional or otherwise,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 59
from the words used 'therein. If the words used have
acquired a technical or special meaning, that meaning
must be given to them. To say that the expression
"taken possession" of or acquired" must be read as "taken"
and given. the same wide meaning as the 'American courts
have given to the word "taken" is to ignore the
entire historical background of the law relating to
compulsory acquisition of private property by the
State. Under the English law, on which 'more or less
our modern laws are rounded, the term "acquisition" has
a special meaning. It connotes the idea of transfer
of title, voluntary or involuntary. When the acquisition
by the State is effected by agreement after
negotiation there is a regular conveyance transferring the
title from the vendor to the State. Even when the
acquisition by the State is effected by the coercive
-process of exercising its sovereign power the idea of
purchase is nevertheless present, for there is vesting of
the property in the State by operation of law. Acquisition
of private property by the State under the English law,
therefore, connotes the concept of a purchase,
voluntary or involuntary, 'and involves a 'transfer
of the entire title from the owner to the State or a
third party for whom the State acquires 'the property. In
India, the compulsory acquisition of private property
was first introduced by Bengal Regulation I of 1824. Since
then we have had no less 'than seven Acts dealing with the
compulsory acquisition of private property by the
State, namely, Act I of 1850, Act XLII of 1850, Act XX
of 1852, Act I of
658
1854, Act. XXII of 1863, Act X of 1870 and lastly the
present Land Acquisition Act, Act I of 1894. Each, of these
Acts provides for the vesting of the acquired property in
the State. This means that the owner is divested and his
title passes, by operation of law to the State. The word
"acquisition", therefore, has become, as it were, a
word of art having a long accepted legislative meaning
implying the transfer of title. It will be quite wrong,
according to the correct principles of interpretation,
not to give the word "acquisition" and its grammatical
variations this technical and special meaning I,
therefore, respectfully agree-with what Mukherjea J. said
in Chiranjit Lal's case (supra) at page 902, namely:
"It cannot be disputed that acquisition means and
implies the acquiring of the entire title of the
expropriated owner, whatever the nature or extent of
that title might be. The entire bundle of rights which
were vested in the original holder would pass on
acquisition to the acquirer leaving nothing in the
former. In taking possession on the other hand, the
title to the property admittedly remains in the original
holder, though he is excluded from possession or
enjoyment of the property. Article 31 (2) of the
Constitution itself makes a clear distinction, between
acquisition of property and taking possession of it for
a public purpose, though it places both of them on the
same footing in the sense that a legislation
authorising either of these acts must make provision
for payment of 'compensation to the displaced or
expropriated' holder 'of the property. In the context in
which the, word "acquisition" appears in article 31 (2),
it can only mean and refer to acquisition of the
entire, interest of the previous holder by transfer of
title and.........."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 59
It' follows from what has been stated above that the
word "acquired" used in article 31 (2) must be given the
special meaning which that word has acquired and
cannot be read as synonymous with: "taken" as used in
the Fifth Amendment to the Constitution of the United
States.
659
It is then suggested that any rate the expression "taken
possession of" should be read in the sense in which the
word "taken" is understood in the American law. But even
in America the word "taken" has not always been
interpreted in the same way. The old view was that in
order to be a "taken" there must be either an actual taking
of physical property or a physical occupancy of some
physical property. This view was, however, regarded as too
narrow and mechanical. It was said that the ownership
of a thing, tangible or intangible, was made up of
the rights, powers, privileges and immunities
concerning that thing and that the property was not
the thing itself but consisted of these rights, powers,
privileges and immunities. It was, therefore, concluded
that there must be a "taking" whenever there was any
injury to property otherwise than by the police power or
taxation which, if done by a private individual, would be
actionable as a tort; in other words that it must be held
that there would be a "taking" whenever any of the
rights, powers, privileges or immunities making up the
ownership was taken from the owner. Indeed, this wide
interpretation of the word "taken" was facilitated by the
fact that, in order to avoid the old, narrow view of the
meaning of that word, many of the States so amended their
Constitutions as to require compensation for property
"damaged, injured or destroyed" for a public use. (See
Professor Willis' Constitutional Law, pp. 820-821). Our
Constitution-makers were well aware of the very wide
meaning eventually given to the word "taken" by the American
courts. They did not, however, use the word "taken" in
article 31 (2) which they would surely have done if they
intended to reproduce the wide American concept of
"taking". Our Constitution-makers, on the contrary,
deliberately chose to adopt the narrower view point and
accordingly used the words "taken possession of" in order to
make it quite clear that they required compensation to be
paid only when there was an actual taking of the property
out of the possession of the owner or possessor into the
possession of the State or its nominee. Of course the
manner of
660
taking possession must depend on the nature of the property
itself. I repeat with humility that it is not permissible
to ignore the historical background and the actual words
used in our Constitution.
It is finally said that both clauses (1)and (2)of
article 31deal with the topic of eminent domain and,
therefore,the expression "taken possession of or
acquired"occurring in clause (2)has the same meaning which
the word "deprived" used in clause (1) has In other
words, both the clauses are concerned with deprivation of
property and there is no reason to think that the
expression "taken possession of or acquired" was usedin
clause (2) to indicate any particular kind or shadeof
deprivation. The Obvious retort that at once comes to
one's mind is that if it were intended by our Constitution-
makers to convey the same general idea of deprivation of
property by whatever means or mode it was brought about why
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 50 of 59
did they use the word "deprived" in clause (1) and why
did they use in clause (2) a different expression which,
as commonly used and understood, connotes a much
narrower meaning ? It would have been quite easy to
frame clause (2) by using the word "deprived" instead of
the expression "taken possession of oracquired". As
our Constitution-makers used different expressions in the
two clauses it must be held that they had done so for a
very definite purpose and that purpose could be nothing
else but to provide for compensation for only a
particular kind of deprivation specifically mentioned and
not for any and every kind of deprivation. In this
connection reference may be made to Entry 33 in List I,
Entry 36 in List II and Entry 42 in List III of the Seventh
Schedule. The words used in those entries are "acquisition
or requisitioning" ortheir grammatical variations. The
legislative powerbeing confined only to "acquisition or
requisitioning"it will not be unreasonable to hold that
"taking of possession" referred to in article 31 (2) is in
the nature of "requisitioning". In section 299 (2) of the
Government of India Act the words "taking of possession"
did not occur nor did they occur in any of the legislative
lists in the Seventh Schedule to that Act, but they
have
661
been introduced in article 31 (2) and in the three
entries mentioned above the word "requisitioning" has
been added after the word "acquisition". If "taken
possession of or acquired"-occurring in article 31 (2)
be given a meaning wider than what is meant by "acquired
or requisitioned" or their variations used in the entries
then it will amount to saying that article 31- (2) even
contemplates a law with the respect to matters which
are beyond the legislative powers conferred on
Parliament and the State Legislatures, for they can only
make a law with respect to "acquisition or
requisitioning". To counter this reasoning it is
pointed out that Parliament under the Union List has the
residuary power of legislation and, therefore, there is no
difficulty in giving a wider meaning to the expression
"taken possession of or acquired". It will then amount
to giving one and the same expression different
meanings. Thus in its application to a law made by
the State Legislature "taken possession of or acquired"
must perforce mean "requisitioned" or "acquired" whereas
in its application to a law made by Parliament it will
have a much wider meaning. This is opposed to the cardinal
rules interpretation. Therefore, "taken possession of
or acquired" should be read as indicative of the concept
of "requisition or acquisition".
A further question, however, arises at this stage and it
may be now considered. Does every taking of a thing
into the custody of the State or its nominee
necessarily mean the taking of possession of that thing
within the meaning of article 31 (2) so as to call for
compensation ? The exercise of police power in relation
to property may conceivably result in the extinction or
destruction of the property or in the State taking
the property in its control. Take the case of the law
authorising the municipal bailiff to seize rotten
vegetables or adulterated foodstuffs and destroy them or to
enter upon the property of a private owner to pull down the
dilapidated structure. 'Consider the law authorising the men
of the fire brigade to go upon the property of a private
owner and demolish it to prevent the fire from spreading to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 51 of 59
the houses beyond or on the
662
other side of that house. Take the case of the law
authorising the seizure and destruction of property for
the protection of public morality. Although in none of
the above cases there is any acquisition of property
involving a transfer of title, there is in each of the above
cases a "taking of possession" and destruction of
property by the State by authority of law and yet nobody
will say that any of the above laws authorise the "taking
of possession" of the property within the meaning of
article 31 (2) so that if such law does not provide for
compensation the law will be unconstitutional and void.
Take the case of the Court of Wards Act. It is a law
which authorises the State to take possession of the estate
of a disqualified proprietor and to manage it for him. The
State only manages the estate on behalf and for the
benefit of the disqualified proprietor. The disqualified
proprietor does not appoint the State or any State
official to manage his estate and he cannot dismiss or
discharge the manager appointed by the State. The
possession of the manager can hardly, in such a situation,
be described as the possession of the disqualified
proprietor. The disqualified proprietor is, therefore, in a
sense, deprived of the possession of his estate and the
State takes the estates m its possession. The same thing
may be said of the Lunacy Act. There is no transfer of title
to the State and, therefore, there is no acquisition of
property by the State. This law, however, takes the
property out of the possession of the owner who is
adjudged a lunatic.' But nobody will say that the Court of
Wards Act or the Lunacy Act calls for compensation.
The learned Attorney-General has also drawn our
attention to statutes, namely, Act XLVII of 1950 (The
Insurance (Amendment) Act, 1950) passed on the 20th May,
1950, and which has added several sections to the Insurance
Act, 1938, Act LI of 1951 (Railway Companies (Emergency
Provisions) Act, 1951), passed on the 14th September,
1951, and Act LXV of 1951 (Industries (Development and
Regulation) Act, 1951) enacted on the 30th October, 1951,
in support of his contention. He points out that each of
those laws is :strictly Speaking outside article 31 (5) (b)
and that the
663
result of our holding that the taking of possession
authorised by those Acts fails within article 31 (2) so as
to call for compensation will be to prevent imposition
of social control so urgently necessary for the
protection of the larger interests of the society. His
argument is that the taking of possession authorised by none
of these three Acts fails within article 31 (2)and only
illustrates the exercise of the State's police power. As
all the three Acts were passed after the Constitution came
into force and as they may be challenged in future an
argument rounded on them will really be begging the question
in debate before us. I, therefore, prefer just to note the
Attorney-General's contention and pass on and not to base my
decision on consideration of any of those Acts.
Confining myself then to the illustrations given by me I
think it is fairly clear from the foregoing discussion that
none of the laws referred to above by me authorise any
"acquisition" of property in the sense explained above
and although each of them does authorise a sort of
taking of possession of the property yet nobody can contend
that the taking of possession so authorised by them fails
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 52 of 59
within article 31 (2). In other words, the taking of
possession authorised by those laws does not amount to the
exercise of the power of eminent domain but is the result of
the exercise of police power. It follows, therefore, that
every taking of possession does not fail within
article 31 (2). What, then, is the test for determining
whether a taking of possession authorised by a particular
law is a taking of possession in exercise of the power of
eminent domain or is a taking of possession in exercise of
the State's police power. I have already referred to the
nature of the State's police power and quoted from some
American decisions showing that the State's police power
extends not only to regulations which promote public health,
morals and safety but to those which promote the public
convenience or the general prosperity. In its application to
private property it, in some measure, resembles the exercise
of the power of eminent domain. Thus the police power is
exercised in the interest of the community and the power
664
of eminent domain is exercised to implement a public'
purpose and in both cases there is a taking of possession
of private property. There is, however, a marked
distinction between the exercise of these two sovereign
powers. According to Professor Willis at page 717 eminent
domain takes property for use by the public or for the
benefit of the public, while the police power prevents
people from so using their own property as to injure
others. The fundamental principle which is held to justify
the exercise of police power is that no one shall use his
property or exercise any of his legal rights as
-injuriously to interfere with or affect the property
or other legal rights of others. (See Willoughby,
Vol. Ill, p. 1775). The primary purpose of police power
is protection or prevention that persons may be
restrained from so exercising their private rights of
property, contract or conduct as to infringe the equal
rights of others or to prejudice the interests of the
community. (Willoughby, Vol. III, p. 1783). When the
State finds that a certain public purpose needs
fulfillment and then in order to implement that public
purpose the State takes possession of private property
on its own account after acquiring it or even without
acquiring it and having taken possession of the property
the State itself uses or utilises the property or
makes it over to a third party to do so for
implementing that public purpose which the State has
taken upon' itself to serve and for which the property was
taken possession of or acquired the State is said to have
exercised its power of eminent domain. This power can
only be exercised under a and that law must provide for
compensation. The point to note is that in such a case the
public purpose is one which the State has set out to fulfil
as its own obligation and the State takes possession on its
own account to discharge its own obligation. In police power
the State destroys or extinguishes or takes possession
of property in order to prevent the owner from indulging in
anti-social activities or otherwise inflicting injury
upon the legitimate interests of other members of the
community either by using his property in a manner he
should not do or by omitting to use it in a manner
665
he should do. In such a case the State steps in and
destroys or extinguishes only to prevent an injury to
social interest or takes possession and assumes the
superintendence of the property not on its own account
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 53 of 59
for implementing its own public purpose but for
protecting the interests of the community. It is easy to
perceive,though somewhat difficult to express, the
distinction between the two kinds of taking of possession
which undoubtedly exists. In view of the wide sweep of
the State's police power it is neither desirable nor
possible to lay down a fixed general test for determining
whether the taking of possession authorised by any
particular law fails into one category or the other.
Without, therefore, attempting any such general
enunciation of any inflexible rule it is possible to say
broadly that the aim, purpose and the effect of the
two kinds of taking of possession are different and that in
each case the provisions of the particular law in
question will have to be carefully scrutinised in order
to determine in which category falls the taking of
possession authorised by such law. A consideration of the
ultimate aim, the immediate purpose and the mode and
manner of the taking of possession and the duration
for which such possession is taken, the effect of it on
the rights of the person dispossessed and other such like
elements must all determine the judicial verdict. The
task is difficult and onerous but the court will have
to hold the scale even between the social control and
individual rights and determine whether, in the light
of the constitutional limitation, the operation of the
law is confined to the legitimate sphere of the State's
police power or whether it has overstepped its limits
and entered into the field of eminent domain. It is only
in this way that the Court serves and upholds the
Constitution by reconciling the conflicting social
interests.
In the light of the foregoing discussions and the
conclusions reached by me I now proceed to examine the
contention. that the impugned section 7 of the amending
Act (VII of 1950) is unconstitutional 'in that it
infringes Subodh Gopal Bose's fundamental right to property
guaranteed by article 31. The argument is
6--95 S.C. India/59.
666
that having purchased the entire Touzine at a revenue sale
the respondent Subodh Gopal Bose had under the old section
37 of the Act of 1859, acquired the valuable right to annul
the under-tenures and to eject the under-tenants and
that he had actually obtained a decree for ejectment
but that he had been deprived of those vested rights by the
operation of section 7 of the amending Act which, in
effect, gave retrospective operation to the new
section-37. Assuming that the right to annul under-
tenures and to eject under-tenants and the decree for
ejectment come within the term "property", as used in
article 31(2) as to which I have considerable doubts the
question at once arises whether they have been taken
possession of or acquired under the impugned Act. The Touzi
still remains the property of the respondent Subodh Gopal
Bose. He can realise rents and exercise all acts of
ownership except that he cannot exercise the right to
annul the under-tenures or eject any under-tenants or
execute the decree he has obtained. But have these last
mentioned rights been taken possession of or acquired by
the State within the meaning of article 31(2) ?
There is no doubt that the State has not "acquired" these
rights in the sense I have explained, for there has been no
transfer, by agreement or by operation of law, of those
rights from the respondent Subodh Gopal Bose to the State
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 54 of 59
or anybody else. The impugned law has not vested those
fights in the State or anybody else and does not
authorise the State or anybody else to exercise these
rights. Referring to the position of the shareholders
under the Sholapur Spinning and Weaving Company
(Emergency Provision) Act, 1950, Mukherjea J. said in
his judgment in Chiranjitlal's case (supra) at pp. 905-
906 :-
"The State has not usurped the shareholders'
right to vote or vested it in any other authority. The
State appoints directors of its own choice but that it does,
not in exercise of the shareholders' right to vote but in
exercise of the powers vested in it by the impugned
Act. Thus there has been no dispossession 'of the
shareholders from their right of voting at all. The same
reasoning applies to the other fights of the
667
shareholders spoken of above, namely, their right of
passing resolutions and of presenting winding up petitions.
These rights have been restricted undoubtedly and may not be
capable of being exercised to the fullest extent as long as
the management by the State continues. Whether the
restrictions are such as would bring the case within the
mischief of article 19(1)(f) of the Constitution I will
examine presently; but I have no hesitation in holding that
they do not amount to dispossession of the shareholders
from these rights in the sense that the rights have been
usurped by other people who are exercising them in place of
the displaced shareholders."
The above reasoning applies mutatis mutandis to the case
now before us. The truth is that these rights have not
been taken possession of or acquired at all in exercise of
the power of eminent domain but have been extinguished or
destroyed in exercise of the State's police power to
prevent public mischief and anti-social activities referred
to in the objects and reasons appended to the bill which
eventually became the impugned law. In the premises, the
respondent Subodh Gopal Bose has been deprived of his
"property", if these rights can be properly so
described, by authority of law and the case fails within
article 31(1) and not within article 31(2) at all.
If the impugned section is regarded as imposing a
restriction on the right of Subodh Gopal Bose to hold
property then, for reasons I have mentioned, I hold
such restrictions, in the circumstances of this case, to
be quite reasonable and permissible under article 19
(5). If the impugned section operates as an extinguishment
of his right to property, treating the right to annul under-
tenures and to eject under-tenants and to execute the
decree for ejectment as property, then, in my judgment,
these rights of the respondent Subodh Gopal Bose have not
been taken possession of or acquired by the State within
the meaning of article 31(2) but he has been deprived of
his property by authority of law under article 31(1) which
calls for no compensation. In the premises, the plea
of unconstitutionality cannot prevail and must be
rejected. I
668
would, therefore, allow the appeal with costs both here'
and in the High Court.
GHULAM HASAN J.--I concur with my Lord the Chief
Justice that the view of the High Court, Calcutta, that
section 7 of the West Bengal Revenue Sales (West
Bengal Amendment) Act, 1950, is void as abridging the
fundamental rights of the first respondent under article
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 55 of 59
19(1)(f)and (5) of the Constitution cannot be sustained and
I agree with the order proposed by him.
JGANNADHADAS J.--l have had the advantage of reading the
judgments of my Lord the Chief Justice and of my learned
brother Justice S.R. Das.
On the assumption that the question raised in this case
is one that arises under article 19(1) (f) and (5) of the
Constitution--that being the footing on which the
learned Judges of the High Court dealt with the case--I
agree with that portion of the judgment of my learned
brother Justice S.R. Das which holds that the impugned
section 7 of the Bengal Land-Revenue Sales (West Bengal
Amendment) Act, 1950 (West Bengal Act VII of 1950) is
intra vires and for the reasons stated by him.
A larger question has, however, been raised as to
whether this is a case which falls within the scope of
article 19(1) (f) and (5) or article 31 of the
Constitution. Since, on either view, we are all agreed as
to the final result of this appeal, I have felt rather
reluctant to go into this larger question. But out of
profound respect for my Lord the Chief Justice and my
learned brother Justice S.R. Das who have dealt with the
matter fully and out of a sense of duty to the Court, I
venture to express my views briefly.
My Lord the Chief Justice is inclined to the view that the
fundamental right declared in article 19(1) (f) has no
reference to concrete property rights but refers only to the
natural rights and freedoms inherent in the status 'of a
citizen. Even so, with respect, I fail to see how the
restrictions on the exercise of those fights referred to in
article 19(5) can be otherwise than with reference to
concrete property rights. To me, it
669
appears, that article 19(1) (f), while probably meant to
relate to the natural rights of the citizen, comprehends
within its scope also concrete property rights. That, I
believe, is how it has been generally understood with out
question in various cases these nearly four years in this
Court and in the High Courts. At any rate, the restrictions
on the exercise of rights envisaged in 'article 19(5)
appear to relate--normally, if not invariably to concrete
property rights. To construe 'article 19(1) (f) and
(5) as not having reference to concrete property
rights and restrictions on them would enable the
legislature to impose unreasonable restrictions on the
enjoyment of concrete property (except where such
restrictions can be brought within the scope of article
31(2) by some process of construction). As at present
advised, I am unable to give my assent to such a view.
Now as regards article 31, I agree that clause (1) cannot be
construed as being either a declaration or implied
recognition of the American doctrine of "'police
power". The negative language used therein cannot, I
think with respect, be turned into the grant, express or
implied, of a positive power. I need as my Lord the
Chief Justice has pointed out in his judgment, no such
grant of police power is necessary having regard to the
scheme of the Constitution. That scheme, as I understand
it, is this. The respective 'legislatures in the
country have plenary powers assigned to them with
reference to the various subjects covered by the entries
enumerated in the Lists of the Seventh Schedule by
virtue of articles 245 to 255. These powers are
subject to the limitation under article 13 that the
power is not to be so exercised as to infringe the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 56 of 59
fundamental rights declared in Part III of the
Constitution. And, therefore, the legislatures 'can
exercise 'every power--including the police power, ' if
it is necessary to import that concept--within these :
limits, in so far as it is not provided for in article 19(2)
to (6) and article 31 (5) (b) (ii) or other specific
provisions in the Constitution, if any. The only problem
thus presented to the Courts is not as to what is the
extent of the police power, 'but as to what is the scope
670
and limit of the fundamental right which is alleged to have
been infringed by legislative action. I agree with my
learned brother Justice S.R. Das that the Constitution
envisages a large measure of social control a means to
achieve the goal set out in the preamble and in the
directive principles enumerated in Part IV. I am also of
the view that the Courts may not ignore the directive
principles, as having no bearing on the interpretation of
constitutional problems, since article 31
categorically states that "it shall be the duty of the
State (including the legislature by virtue of the definition
of 'State' in Part III made applicable by article 36) to
apply these principles in making laws". While,
therefore, I agree in thinking that a substantial
measure of social control legislation may become
necessary in the fullness of time, that to my mind, is no
reason for construing article 31(1) as implying some
undefined police power, though such a consideration may
have relevance in the determination of the ambit of a
fundamental right.
On the other hand, I am unable to agree with the view
that article 31(1) has reference only to the power of
Eminent Domain. I do not dispute that it comprehends within
its scope the requirement of the authority of law, as
distinguished from executive fiat for the exercise of
the power of Eminent Domain. But it appears to me that
its scope may well be wider. This really depends on what is
the exact meaning to be assigned to the word "property" as
herein used and on whether "deprivation" contemplated by
article 31 (I) is in substance the same as "taking
possession" or "acquisition" contemplated in article
31(2). My Lord the Chief Justice is inclined to the
view that "taking possession" or "acquisition" is to be
construed as having reference to and meaning
"deprivation" or vice versa. Undoubtedly "taking
Possession" and "acquisition" amount to "deprivation"
but the converse may not follow in the particular context
in which these words and phrases are used. With great
respect, I can see no warrant for the construction
adopted except the assumption that article 31(1) and
article 31(2) refer to the same and identical topic of
671
eminent domain and that they provide for the different
requirements thereof, i.e., the requirement authority
of law under article 31(1) and the requirements of public
purpose and compensation under article 31(2). But it
appears to me that if in article 31 (2) "acquisition"
and "taking possession" were meant to be synonymous
with "deprivation" already used in article 31 (1) there
was no reason to drop the use of the word "deprivation"
in article 31(2) and to use other words and phrases
therein. For instance, article 31(2) may well have run as
follows. "There shall be no deprivation of property,
movable or immovable, ............ for public purposes
under any law 'authorising the same unless the law
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 57 of 59
provides ........ " or some other such clause may
have been suitably drafted. It appears to me that while
the framers of the Constitution laid down the
requirement of the authority of law for "deprivation of
property" with a larger connotation, they limited the
requirement of payment of compensation to what may
reasonably be comprehended within the concepts of
"acquisition" and "taking possession". With respect, to
read these words and phrases in article 31 (2) as
meaning the same thing as "deprivation" used in article
31 (1) and to make the test of "substantial abridgement" or
"deprivation" as the sine qua non for payment of
compensation under article 31 (2) is to open the door for
introduction of most, if not all the elements of wide
uncertainty which have gathered round the word "taken"
used in the corresponding context in the American
Constitution, notwithstanding caution to the contrary
which my Lord the Chief Justice has indicated in
his judgment. I am inclined to think that it is in order
to obviate this that the framers of the Constitution
deliberately avoided the use of the word "deprived" or
"deprivation" in article 31(2).
I am conscious of the principle that a Constitution has
to be liberally construed so as to advance the content of
the right guaranteed by it. But where, as in this case,
there is, what appears, a deliberate choice of the language
used, and where it is not unlikely that having regard to the
goal that the Constitution has
672
set to itself in Part IV, certain degree of caution and
restraint may well have been intended as to the limits of
the right, the intendment of the language used has, in my
opinion, to prevail.
On the other hand, I am unable to agree with my learned
brother Justice S.R. Das that "acquisition" and "taking
possession" in article 31 (2) have to be taken as
necessarily involving transfer of title or possession. The
words or phrases appear to me to comprehend all cases where
the title or possession is taken out of the owner and
appropriated without his consent by transfer or
extinction or by some other process, which in substance
amounts to it, the possession in this context
meaning such possession as the nature of the property
admits and which the law recognises as possession.
This seems to follow from the enumeration of the classes
of property in article 31 (2) to which it is applicable
and also by reason of the broader consideration that
from the point of view of the owner or possessor whose
title or possession is appropriated, every such act of
appropriation stands on the same footing. That the
idea of transference of title or possession is not
necessarily to be implied by article 31 (2) appears to me to
be also indicated by article 31 (5) (b) (ii), which more
often than not, would cover cases of destruction of
property. Incidentally, I may mention that I am inclined
to the view, in agreement with my LOrd the Chief Justice,
that article 31 (5) (b) (ii) is an exception to article 31
(2) and is intended to absolve the need for payment of
compensation for "acquisition" or "taking possession"
of property for the purposes specified therein. It,
therefore, seems to imply payment of compensation, if
such "acquisition" or "taking possession" of property
is for other purposes.
The question then remains as to what is "property"
contemplated by article 31 (2), apart from the specified
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 58 of 59
categories included therein by enumeration in" the
'phrase "any interest in, or in any company owning, any
commercial or industrial undertaking."" It is no doubt
true that in a wide sense, property connotes not
673
only a concrete thing--corporeal or incorporeal--but
all the bundle of rights which constitute the ownership
thereof and probably also each individual fight out of that
bundle in relation to such ownership. But in the 'context
of article 31 (2)--as in the cognate context of article
19 (1)(f)--the connotation of the word is limited by
the accompanying words "acquisition" and "taken
possession". Hence out of the general and wide category
falling within the connotation of the word
"property", only that which can be the subject
matter of "acquisition" or "taking possession", is the
"property" which is within the scope of 'article
31(2). This to my mind excludes, for instance, a bare
individual right, out of the bundle of rights which go
to make up property as being itself property for purposes
of article 31 (2), unless such individual right is in
itself recognised by law as property or as an interest in
property--an easement, a profits-a-prendre and the
like--and as capable of distinctive acquisition or
possession. Thus for instance in the case with which we are
concerned in the present appeal, the right to annul
under-tenures cannot in itself be treated as property,
for it is not capable of independent acquisition or
possession. The deprivation of it can only amount to a
restriction on the exercise of the rights as regards the
main property itself and hence must fail under article 19
(1) (f) taken with 19 (5), according to my understanding
thereof.
In my view, however, the word "property" as used in
article 31 (1) may have been intended to be understood in
a wider sense and deprivation of any individual right out
of a bundle of rights constituting concrete property
may be deprivation of "property" which would require
the authority of law. I am aware of the possible criticism
that in two parts of the same article the same word must be
intended to have been used in the same sense. While this is
a normal rule of construction, it can yield to the
requirement of the context arising from the'
juxtaposition of other words or phrases. To my' mind
article 31 (1), though part of an article is in essence1 an
independent provision to some extent overlapping with the
requirements of the law
674
of Eminent Domain. It is on a par with article 21. It seems
to me to serve a distinct purpose over and above that
relating to the law of Eminent Domain, viz., that it
relates also to deprivation of property other than that
which may fall within the scope of article 31 (2). It
enjoins that such deprivation shall not be brought about
save by authority of law.
In view of what I have said above, it follows that the
assumption with which I have started, viz., that this is a
case falling under article 19 (1) (f) and (5) is, in my
opinion, correct.
In the result I agree that the appeal should be allowed
with costs here and in the High Court.
Appeal allowed.
Agent for the appellant: P.K. Bose.
Agent for respondent No.1: R.R. Biswas.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 59 of 59
The Supreme Court's decision in The State of West Bengal vs. Subodh Gopal Bose and Others. stands as a monumental pillar in Indian constitutional law, providing a foundational interpretation of the Right to Property in India as it was originally enshrined. This landmark case, readily available for study on CaseOn, delves into the intricate relationship between Article 19(1)(f) and Article 31 of the Constitution, setting a crucial precedent on the state's power to enact social welfare legislation that retrospectively affects vested property rights. The judgment grapples with the fundamental question of where the line is drawn between a 'restriction' on property rights and an outright 'deprivation' of them.
The case originated from a property transaction in 1942, when the respondent, Subodh Gopal Bose, purchased an entire estate (a 'Touzi') at a revenue sale in the 24-Parganas Collectorate. Under the prevailing law, Section 37 of the Bengal Revenue Sales Act, 1859, this purchase armed him with a significant right: the power to annul all existing under-tenures and eject the tenants on the land. In 1946, Bose initiated legal proceedings to exercise this right and successfully obtained a decree for ejectment.
However, while an appeal against this decree was pending, the legislative landscape shifted dramatically. In 1950, the West Bengal Legislature enacted the Bengal Land Revenue Sales (West Bengal Amendment) Act. This new law, particularly its Section 7, was given retrospective effect. It severely curtailed the purchaser's right to evict tenants and mandated that all pending suits, appeals, and proceedings related to such ejectments should abate (i.e., be terminated).
Aggrieved by this legislative reversal that effectively nullified his vested right, Bose challenged the constitutionality of the 1950 Act before the Calcutta High Court. The High Court sided with him, declaring the law unconstitutional and void on the grounds that it imposed an unreasonable restriction on his fundamental right to hold property under Article 19(1)(f). The State of West Bengal then brought the matter before the Supreme Court.
The central issue before the five-judge Constitution Bench was profound and multifaceted:
Was the Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950, unconstitutional for infringing upon the fundamental right to property guaranteed under Article 19(1)(f) and Article 31 of the Constitution?
More specifically, the Court had to determine whether the retrospective extinguishment of a vested property right amounted to an unreasonable 'restriction' requiring justification under Article 19(5), or a 'deprivation' of property requiring compensation under Article 31(2).
The Court's analysis hinged on the interpretation of two key articles concerning the right to property as it existed then.
Article 19(1)(f) guaranteed citizens the right to acquire, hold, and dispose of property. However, this right was not absolute. Article 19(5) empowered the state to impose 'reasonable restrictions' on this right in the interests of the general public.
Article 31 offered a different form of protection. Its key clauses were:
The judgment's core lies in the judicial effort to harmonize these two articles and define their respective domains.
While the bench unanimously upheld the law, the judges offered strikingly different reasons for their conclusion, providing a rich tapestry of constitutional interpretation.
The majority opinion, authored by CJ Sastri, drew a fine but critical distinction:
Justice Das agreed with the final verdict but traveled a different legal path. He argued that the law was a 'restriction' on the right to hold property and should be tested on the anvil of 'reasonableness' under Article 19(5). His analysis concluded that the restriction was indeed reasonable because the legislation was aimed at remedying a serious social evil: large-scale evictions driven by speculative purchasers exploiting a surge in land values. He famously distinguished between the state's 'police power' (the power to regulate for public good, as under Article 31(1)) and its power of 'eminent domain' (the power to acquire for a public purpose with compensation, as under Article 31(2)).
Navigating these differing judicial philosophies can be complex. For legal professionals pressed for time, CaseOn.in offers 2-minute audio briefs that concisely summarize the core arguments and rulings in landmark cases like this, making complex analysis more accessible.
Justice Jagannadhadas, also concurring, offered a third perspective. He reasoned that the right to annul under-tenures was not 'property' in itself that could be independently acquired under Article 31(2). Instead, it was one of the rights in the larger bundle of ownership. Its removal was, therefore, a restriction on the main property, which he found to be reasonable under the circumstances.
By a majority, the Supreme Court allowed the state's appeal, setting aside the Calcutta High Court's judgment. The Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950, was held to be constitutionally valid. The Court affirmed the state's legislative power to address social welfare concerns, even if it meant retrospectively altering vested property rights without compensation, provided the action was backed by the authority of law and did not involve state acquisition.
The Supreme Court upheld the constitutionality of the Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950, thereby allowing the State of West Bengal's appeal. The majority view, led by CJ Patanjali Sastri, held that the Act caused a 'deprivation' of the respondent's property rights by the authority of law under Article 31(1). However, since this deprivation did not involve an 'acquisition' or 'taking of possession' by the State itself, the obligation to pay compensation under Article 31(2) was not triggered. In a concurring opinion, Justice S.R. Das treated the law as a 'reasonable restriction' under Article 19(5), justified by the pressing need to prevent large-scale evictions and social unrest.
For lawyers and law students, this judgment is an essential read for several reasons:
Disclaimer: The information provided in this article is for informational purposes only and does not constitute legal advice. Readers are advised to consult with a qualified legal professional for any legal concerns.
Login with google
Legal Notes
Add a Note....