Full Judgement
The State of Bihar Vs. Maharajadhiraja Sir Kameshwar Singhof Darbhanga & Ors [1952] INSC 39 (27 May 1952)
GUPTA, A.C.
BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.
CITATION: 1975 AIR 1083
ACT:
Bihar Land Reforms Act (XXX of 1950)---Law for abolition of zamindaries--Validity--Necessity to provide for compensation and of public purpose--Jurisdiction of Court to enquire into validity-Delegation of legislative powers--Fraud on the Constitution--Constitution of India, 1950--Constitution (First Amendment) Act, 1951 Arts. 31, 31-A, 31-B, 362. 363--Sch. VII, List II, entries 18, 36 and List III, entry 42 --Construction--Spirit of the Constitution-Right of eminent domain--"Law", "Legislature", "Public purpose", meanings of--Covenant of merger--Compulsory acquisition of private property of Ruler--Acquisition of arrears of rent paying 50%--Deduction for cost of works--Legality. 115 890
HEADNOTE:
Held per Curiam (MAHAJAN, MUKHERJEA and CHANDRASEKHARA AIYAR JJ.)--The Bihar Land Reforms Act, XXX of 1950, is not unconstitutional or void except with regard to the provisions in s. 4 (b) and s. 23 (f) thereof. The provisions of S. 4 (b) and s, 23 (f) are unconstitutional. Per PATANJALI SASTRI C.J. and DAS J.--The whole of the Bihar Land Reforms Act of 1950, including the provisions contained in s. 4 (b) and s. 23(f) is constitutional and valid.
Per PATANJALI SASTRI C. 3., MAHAJAN, MUKHERJEA, DAS and CHANDRASEKHARA AIYAR JJ.--(i) The Bihar Land Reforms Act, XXX of 1950, is not a law in respect of a matter mentioned in entry 18 of List II, viz., "lands and land tenures", but a law in respect of "acquisition of property", a matter covered by entry 36 of List II.
(ii) The obligation to pay compensation for property acquired by the State is not an obligation imposed by entry 36 of List II read by itself or in conjunction with entry 42 of list III or by the spirit of the Constitution. Consequently, an objection to the validity of a statute in respect of acquisition of property on the ground that it does not provide for payment of compensation is an objection on the ground that it contravenes the provisions of art. 31 (2) and the jurisdiction of the Court to entertain such an objection in respect of a statute mentioned in the Ninth Schedule to the Constitution is barred by art. 31 (4), art. 81-A and art. 31-B of the Constitution. Per DAS J.-Assuming that the obligation to pay compensation is also implicit in entry 86 of List II, in itself or read with entry 42 of List III, even then the validity of the Act cannot be questioned by reason of arts. 81 (4), 31-A and 31-B.
(iii) Section 32(2) of the Act which empowers the State Government to frame rules providing for "the proportion in which compensation shall be payable in cash and in bonds and the manner of payment of such compensation" does not involve any delegation of legislative powers especially as the legislature has itself provided in s. 32(2) that the compensation shall be payable in cash or in bonds or partly in cash and partly in bonds and fixed the number of installments in which it should be paid. The words "subject to" in entry 36 of List II only mean that whenever a law is made by a State Legislature in exercise of its legislative power under entry 36, that law will be subject to the provisions of a law made by the Parliament under entry 42 of List III. The words do not mean that when a State makes a law under entry 36 it must lay down the principles on which compensation payable for property acquired is to be determined and the form and manner in which it should be given.
(iv) Entries in the Legislative Lists are merely of an enabling character. The power conferred there under on the legislatures is not coupled with any duty on the legislature to exercise 891 such power and the principle laid down in Julius v. Bishop of Oxford [5A.C.214] has, therefore, no application to the Lists.
Per PATANJALI SASTRI C.J., MUKHERJEA and DAS JJ.
(MAHAJAN and CHANDRASEKHARA. AIYAR JJ. dissenting).--The existence of a public purpose as a pre-requisite to the exercise of the power of compulsory acquisition is an essential and integral part of the provisions of art.31 (2) and an infringement of such a provision cannot be put forward as a ground for questioning the validity of an Act providing for compulsory acquisition: DAS J.--Even assuming that the necessity of a public purpose is implied in entry 36 of List II and/or entry 42 of List III also, arts. 31 (4), 31-A and 31-B would still protect the Act from being questioned on the ground that the acquisition was not for a public purpose. In any case the impugned Act is supported by a public purpose.
Per MAHAJAN and CHANDRASEKHARA AIYAR jj.--The scope of art. 31 (4) is limited to the express provisions of art. 31 (2) and though the courts cannot examine the extent or adequacy of the provisions of compensation contained in any law dealing with the acquisition of property compulsorily, yet the provisions of art. 31 (4) do not in any way debar the court from considering whether the acquisition is for a public purpose. Though the main object of the Act, viz, the acquisition of estates, is for a public purpose, the acquisition of arrears of rent due to the zamindars on payment of 50 per cent. of their value cannot be held to be for a public purpose and sec. 4 clause (b) of the Act is therefore unconstitutional and void. Per MUKHERJEA J.--Assuming that art. 31 (4) relates to everything that is provided for in art. 31 (2) either in express terms or even impliedly and consequently the question of the existence of a public purpose is not justiciable, as the real object of sec. 4, clause (b) is to deprive the man of his money, which is not a subject-matter for acquisition under the powers of eminent domain, without giving anything in exchange, under the guise of acting under entry 42 the legislature has in truth and substance evaded and nullified its provisions altogether and sec. 4 clause (b) is therefore unconstitutional and void.
PATANJALI SASTRI C.J.--Whatever may be the position as regards the acquisition of money as such it is not correct to say that a law made under entry 36 of List II cannot authorise acquisition of choses in action like arrears of rent due from the tenants which are covered by the term "property" used in that entry and in art. 31. The view that a payment in cash or in government bonds of half the amount of such arrears leaves the zamindar without compensation for the balance is equally fallacious. Section 4 clause (b) is not therefore ultra vires or unconstitutional.
892 Per MAHAJAN, MUKHERJEA and CHANDRASEKHARA AIYAR JJ.
(PATANJALI SASTRI C.J, and DAS J. dissenting)--Section 23 (b) of the Act which provides for a deduction on a percentage basis out of the gross assets for "costs of works of benefit to the raiyat", is ostensibly enacted under entry 42 of List III, but it is merely a colourable piece of legislation, a mere device to reduce the gross assets, which does not really come under entry 42 and is unconstitutional.
PATANJALI SASTRI C J. and DAS J.-The zamindars are under an obligation to maintain and repair the minor irrigation works in their villages which are beneficial to the raiyats and the cost of such works is therefore a perfectly legitimate deduction in computing the net assets of the estate and sec. 23 (f) is not unconstitutional. Further, as payment of compensation is not a justiciable issue in the case of the impugned statute, having regard to arts. 31 (4), 31-A and 31-B, it is not open to the Court to enquire whether a deduction which results in reducing the compensation is unwarranted and therefore a fraud on the Constitution.
Per MAHAJAN J.--The phrase "public purpose" has to be construed according to the spirit of the times in which the particular legislation is enacted and so construed, acquisition of estates for the purpose of preventing the concentration of huge blocks of land in the hands of a few individuals and to do away with intermediaries is for a public purpose.
DAS J.--No hard and fast definition can be laid down as to what is a ,'public purpose" as the concept has been rapidly changing in all countries, but it is clear that it is the presence of the element of general interest of the community in an object or an aim that transforms such object or aim into a public purpose, and whatever furthers the general interest of the community as opposed to the particular interest of the individual must be regarded as a public purpose.
APPEALS under article 132 (1) of the Constitution of India from the judgment and decree dated 12th March, 1951, of the High Court of Judicature at Patna (Shearer, Reuben and Das JJ.) in Title Suits Nos. 1 to 3 and Mis. Judicial Cases Nos. 230-234, 237-244, 2-16 to 254, 257, 261 to 264, 266, 262, 270 to 277, 287-290 and 297 of 1951. PETITION No.
612 of 1951, a petition under article 32 of the Constitution for enforcement of fundamental rights, was also heard along with these appeals.
The facts that gave rise to these appeals and petition are stated in the judgment.
893 M.C. Setalvad (Attorney-General for India) and Mahabir Prasad (Advocate-General of Bihar) with G.N. Joshi, Lal Narain Singh and Alladi Kuppuswami for the State of Bihar.
P.R. Das (B. Sen, with him) for the respondents in Cases Nos. 339, 319, 327,330 and 332 of 1951.
Sanjib K. Chowdhury. S.N. Mukherjee, S.K. Kapur for the respondents in Cases Nos. 309, 328, and a36 of 1951.
Urukramdas Chakravarty for the respondents in Cases Nos. 326,337 and 344 of 1951.
Raghosaran Lal for the respondents in Cases Nos. 310.311 and 329 of 1951.
S C. Mazumdar for the respondent in Case No. 313 of 1951.
S. Mustarid and Jagadih Chandra Sinha for the respondents in Cases Nos. 307, 313, 320, 321, and 322 of 1951.
Ray Parasnath for the respondent in Case No. 331 of 1951.
S.K. Kapur for the petitioner in Petition No. 612 of 1951.
1952. May 2, 5. The Court delivered judgment as follows :-PATANJALI SASTRI C.J.--These appeals and petitions which fall into three groups raise the issue of the constitutional validity of three State enactments called The Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950), The Chief Justice, in his judgment, dealt with the above Cases and Petition and also Petitions Nos. 166, 228, 237, 245, 246, 257, 268, 280, to 285, 287 to 289, 317, 318 and 487 of 1951 (relating to the Madhya Pradesh Abolition of Proprietary Rights (Estates Mahals, Alienated Lands) Act, 1950) and Cases Nos. 283 to 295 of 1951 (relating to the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950).
894 The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (No. I of 1951), and The Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U. P. Act No. 1 of 1951) (hereinafter referred to as the Bihar Act, the Madhya Pradesh Act and the Uttar Pradesh Act, respectively).
The common aim of these statutes, generally speaking, is to abolish zamindaries and other proprietary estates and tenures in the three States aforesaid, so as to eliminate the intermediaries by means of compulsory acquisition of their rights and interests, and to bring the raiyats and other occupants of lands in those areas into direct relation with the Government. The constitutionality of these Acts having been challenged in the respective State High Courts on various grounds, the Bihar Act was declared unconstitutional and void on the ground that it contravened article 14 of the Constitution, the other grounds of attack being rejected, while the other two Acts were adjudged constitutional and valid. The appeals are directed against these decisions. Petitions have also been filed in this Court under article 32 by certain other zamindars seeking determination of the same issues. The common question which arises for consideration in all these appeals and petitions is whether the three State Legislatures, which respectively passed the three impugned statutes, were constitutionally competent to enact them, though some special points are also involved in a few of these cases.
As has been stated, various grounds of attack were put forward in the courts below, and, all of them having been repeated in the memoranda of appeals and the petitions, they would have required consideration but for the amendment of the Constitution by the Constitution (First Amendment) Act, 1951 (hereinafter referred to as the Amendment Act) which was passed by the provisional Parliament during the pendency of these proceedings. That Act by inserting the new articles 31-A and 895 31-B purported to protect, generally, all laws providing for the acquisition of estates or interests therein, and specifically, certain statutes, including the three impugned Acts, from attacks based on article 13 read with other relevant articles of Part III of the Constitution. And the operation of these articles was made retrospective by providing, in section 4 of the Amendment Act, that article 3 I-A shall be "deemed always to have been inserted" and. in article 31B, that none of the specified statutes "shall be deemed ever to have become void". The validity of the Amendment Act was in turn challenged in proceedings instituted in this Court under article 32 but was upheld in Sankari Prasad Singh Deo v. Union of India and Stale of Bihar(1). The result is that the impugned Acts can no longer be attacked on the ground of alleged infringement of any of the rights conferred by the provisions of Part III.
It will be noted, however, that articles 31-A and 31-B afford only limited protection against one ground of challenge, namely that the law in question is "inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this Part". This is made further clear by the opening' words of article 3 I-A "notwithstanding anything in the foregoing provisions of this Part". The Amendment Act thus provides no immunity from attacks based on the lack of legislative competence under article 246, read with the entries in List II or List III of the Seventh Schedule to the Constitution to enact the three impugned statutes, as the Amendment Act did not in any way affect the Lists. Mr. P.R. Das, leading counsel for the zamindars, accordingly based his main argument in these proceedings on entry 36 of List Ii and entry 42 of List III which read as follows:
"36. Acquisition or 'requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III.
42. Principles on which compensation for property acquired or requisitioned for the purposes of the Union (1) [1952] S.C.R. 89.
896 or of a State or for any other public purpose is to be determined, and the form and the manner in which such compensation is to be given".
The argument may be summarised thus. Entry 36 of List II read with article 246 (3) was obviously intended to authorise a State Legislature to exercise the right of eminent domain, that is, the right of compulsory acquisition of private property. The exercise of such power has been recognised in the jurisprudence of all civilised countries as conditioned by public necessity and payment of compensation. All legislation in this country authorising such acquisition of property from Regulation I of 1824 of the Bengal Code down to the Land Acquisition Act, 1894, proceeded on that footing. The existence of a public purpose and an obligation to pay compensation being thus the necessary concomitants of compulsory acquisition of private property, the term "acquisition" must be construed as importing, by necessary implication, the two conditions aforesaid. It is a recognised rule for the construction of statutes that, unless the words of the statute clearly 80 demand, a statute is not to be construed so as to take away the property of a subject without compensation: Attorney-General v. De Keyser's Royal Hotel(2). The power to take compulsorily raises by implication a right to payment: Central Control Board v. Cannon Brewery(2). The words "subject to the provisions of entry 42 of List III" in entry 86 reinforce the argument, as these words must be taken to mean that the power to make a law with respect to acquisition of property should be exercised subject to the condition that such law should also provide for the matters referred to in entry 42, in other words, a two-fold restriction as to public purpose and payment of compensation (both of which are referred to in entry 42) is imposed on the' exercise of the law-making power under entry 36. In any case, the legislative power conferred under entry 42 is a power coupled with a duty to exercise it for the benefit of the owners whose properties are compulsorily acquired (1) [1920] A.C. 508, 542. (2) [1919] A.C. 744.
897 under a law made under entry 36. For all these reasons the State Legislatures, it was claimed, had no power to make a law for acquisition of property without fulfilling the two conditions as to public purpose and payment of compensation.
On the basis of these arguments, counsel proceeded to examine elaborately various provisions of the impugned Acts with a view to show that the compensation which they purport to provide has, by "various shifts and contrivances", been reduced to an illusory figure as compared with the market value of the properties acquired. The principles laid down for the computation of compensation operated in reality as "principles of confiscation", and the enactment of the statutes was in truth a "fraud on the Constitution", each of them being a colourable legislative expedient for taking private properties without payment of compensation in violation of the Constitution, while pretending to comply with its requirements. Nor were these statutes enacted for any public purpose; their only purpose and effect was to destroy the class of zamindars and tenure-holders and make the Government a "super-landlord". While such an aim might commend itself as a proper policy to be pursued by the political party in power, it could not, in law, be regarded as a public purpose.
Mr. Somayya, who appeared for some of the zamindars in the Madhya Pradesh group of cases, while adopting the arguments of Mr. Das, put forward an additional ground of objection. He argued that the impugned Acts -were not passed in accordance with the procedure prescribed in article 31 (3) which provides "No such law as is referred to in clause (2) made by the Legislature of a State shall have effect unless such law.
having been reserved for the consideration the President, has received his assent".
Learned counsel stressed the words "law" and "legislature" and submitted that, inasmuch as the legislature of a State included the Governor (article 116 898 168) and a bill could become a law only after the Governor assented to it under article 200, clause (3) of article 31 must be taken to require that a State law authorising compulsory acquisition of property should receive the Governor's as well as the President's assent, the former to make it a law and the latter to give it "effect". As the relative bills were reserved in each case by the Governor concerned after they were passed by the House or Houses of Legislature, as the case may be, without giving his assent under article 200. the statutes did not satisfy the requirements of article 31 (3) and so could not have "effect". This ground of attack, it was claimed, was not excluded by article 31-A or article 31-B as it was not based on infringement of fundamental rights.
Dr. Ambedkar, who appeared for some of the zemindars in the Uttar Pradesh batch of cases, advanced a different line of argument. He placed no reliance upon entry 36 of List II or entry 42 of List III. He appeared to concede what Mr. Das so strenuously contested, that those entries, concerned as they were with the grant of power to the State Legislature to legislate with respect to matters specified therein, could not be taken, as a matter of construction, to import an obligation to pay compensation. But he maintained that a constitutional prohibition against compulsory acquisition of property without public' necessity and payment of compensation was deducible from what he called the "spirit of the Constitution", which, according to him, was a valid test for judging the constitutionality of a statute The Constitution, being avowedly one for establishing liberty, justice and equality and a government of a free people with only limited powers, must be held to contain an implied prohibition against taking private property without just compensation and in the absence of a public purpose. He relied on certain American decisions and text-books as supporting the view that a constitutional prohibition can be derived by implication from the spirit of the Constitution where no express prohibition has been enacted in that behalf.
Articles 31-A and 31-B barred 899 only objections based on alleged infringements of the fundamental rights conferred by Part III, but if, from the other provisions thereof, it could be inferred that there must be a public purpose and payment of compensation before private property could be compulsorily acquired by the State, there was nothing in the two articles aforesaid to preclude objection on the ground that the impugned Acts do not satisfy these requirements and are, therefore, unconstitutional.
In addition to the aforesaid grounds of attack, which were common to all the three impugned statutes, the validity of each of them or of some specific provisions thereof was also challenged on some special grounds. It will be convenient to deal with them after disposing of the main contentions summarised above which are common to all the three batches of cases.
These contentions are, in my judgment devoid of of substance and force and I have no hesitation in rejecting them. The fact of the matter is the zemindars lost the battle in the last round when this Court upheld the constitutionality of the Amendment Act which the Provisional Parliament enacted with the object, among others, of putting an end to this litigation. And it is no disparagement to their learned counsel to say that what remained of the campaign has been fought with such weak arguments as overtaxed ingenuity could suggest.
It will be convenient here to set out the material provisions of the Constitution on which the arguments before us have largely turned.
Article 31 (2). No property movable or immovable ......... shall be acquired for public purposes under any law authorising ......... such acquisition unless the law provides for compensation for the property acquired and either. fixes the amount of compensation or specifies the principles on which and the manner in which the compensation is to be determined and given.
(3) No such law as is referred to in clause (2) made by the Legislature of a State shall have effect unless 900 such law, having been reserved for the consideration of the President, has received his assent.
(4) If any bill pending at the commencement of this Constitution in the Legislature of a State has, after it has been passed by such Legislature, been reserved for the consideration of the President and has received his assent, then, notwithstanding anything in this Constitution, the law so assented to shall not be called in question in any court on the ground that it contravenes the provisions of clause (2).
(5) Nothing in clause (2) shall affect(a) The provisions of any existing law other than a law to which the provisions of clause (6) apply, or (b) the provisions of any law which the State may 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 ......
31-A. Saving of laws providing for acquisition of estates, etc.--(1) Notwithstanding anything in the foregoing provisions of this Part no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this Part: .......
31-B. Validation of certain Acts and Regulations.Without prejudice to the generality of the provisions contained in article 31-A none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, 901 Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this Fart, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.
It will be seen that the scope of article 31 (4) is at once narrower and wider than that of article 31-A; the former has application only to statutes which were pending in the legislature at the commencement of the Constitution, whereas the latter is subject to no such restriction.
Again, article 31 (4) excludes attack only on the ground of contravention of article 31 (2), while article 3 I-A bars objections based on contravention of other provisions of Part III as well, such as articles 14 and 19. This indeed was the reason for the enactment of articles 31-A and 31-B, as the words of exclusion in article 31 (4) were found inapt to cover objections based on contravention of article 14.
On the other hand, the law referred to in article 31 (4) covers acquisition of any kind of property, while article 31-A relates only to the acquisition of a particular kind of property, viz., estates and rights therein, and what is more important for our present purpose, the non obstante clause in article 31 (4) overrides all other provisions in the Constitution including the List of the Seventh Schedule, whereas a law which falls within the purview of article a 1-A could only prevail over "the foregoing provisions of this Part". Now, the three impugned statutes fall within the ambit of both article 31 (4) and articles 31-A and 31-B.
Putting aside the latter articles for the moment, it is plain that, under article 31 (4), the three impugned statutes are protected from attack in any court on the ground that they contravene the provisions of article 31(2). These provisions, so far as they are material here, are (i) that a law with respect to acquisition of property should authorize acquisition only for a public purpose and (ii) that such law should provide for compensation, etc. Mr. Das, while admitting that 902 (ii) was a "provision" of article 31 (2), submitted that (i) was not. According to him clause (2)assumed but did not "provide" that acquisition should be authorised only for a public purpose. I cannot accept that view. In my opinion, the clause seeks also to impose a limitation in regard to public purpose. The clause was evidently worded in that form as it was copied (with minor variations) from section 299 (2) of the Government of India Act, 1935, which was undoubtedly designed to give effect to the recommendation of the Joint Parliamentary Committee in para. 369 of their Report that two conditions should be imposed on expropriation of private property: "We think it (the provision proposed) should secure that legislation expropriating or authorising the expropriation of the property of private individuals should be lawful only if confined to expropriation for public purpose and if compensation is determined either in the first instance or in appeal by some independent authority". It is thus clear that section 299 (2) was intended to secure fulfilment of two conditions subject to which alone legislation authorising expropriation of private property should be lawful, and it seems reasonable to conclude that article 31 (2) was also intended to impose the same two conditions on legislation expropriating private property. In other words, article 31 (2)must be understood as also providing that legislation authorising expropriation of private property should be lawful only if it was required for a public purpose and provision was made for payment of compensation. Indeed if this were not so, there would be nothing in the Constitution to prevent acquisition for a non-public or private purpose and without payment of compensation--an absurd result. It cannot be supposed that the framers of the Constitution, while expressly enacting one of the two well-established restrictions on the exercise of the right of eminent domain, left the other to be imported from the common law. Article 81 (2) must therefore, be taken to provide for both the limitations in express terms.
An attack on the 903 ground of contravention of these provisions implies that the law in question authorises acquisition without reference to a public purpose and without payment of compensation. This was precisely the objection raised both by Mr. Das and Dr.
Ambedkar to the constitutional validity of the impugned statutes, and such objection really amounts to calling those laws in question on the ground that they contravened the provisions of article 31 (2), though learned counsel stoutly denied that they were relying on the provisions of article 31(2). The denial, however, seems to me to be based on a quibbling distinction without a difference in substance.
Their main attack was really grounded on the absence of these two essential prerequisites of valid legislation authorising acquisition of private property, though Mr. Das would deduce them by implication from entry 36 of List II and entry 42 of List III, while Dr. Ambedkar sought to derive them from the spirit of the Constitution. But this is only a form of stating the objection which, in substance, is that the statutes are bad because of the absence of a public purpose and the omission to provide for a just compensation. This, in fact, was the burden of the argument before us. If, then, these two grounds of attack fall within the purview of article 31(4), the words "notwithstanding anything in this Constitution" are apt to exclude such grounds howsoever they are derived--whether from the entries in the legislative Lists or from the spirit of the Constitution-for both alike are covered by those words. Indeed, if the objection based on the absence of a public purpose and of a provision for just compensation were still to be open, clause (4) of article 31 would be meaningless surplusage.
It is obvious that that clause was specially designed to protect the impugned statutes and other laws similarly enacted from attack in a court of law on the aforesaid grounds and, if they were nevertheless to be considered as not being within the protection, it is difficult to see what the use of article 31 (4) would be. Learned counsel were unable to suggest any. The fact is that article 31 (4) was 904 designed to bar the jurisdiction of courts to entertain objections to the validity of a certain class of enactments on the two-fold ground referred to above, and its whole purpose would stand defeated if the zemindars' contention were to prevail.
Even if it were open to the court to consider these grounds of objection, they are, in my opinion, unsustainable. As pointed out already, article 31-A operates as an exception to article 31 (2) read with article 13, only in respect of laws authorising acquisition of "estates" and rights therein, and this exception is to be deemed to have been part of the Constitution from its commencement. But it has no application to laws authorising acquisition of other kinds of property and, as regards these, the requirements as to public purpose and payment of compensation are still enforced by the express provisions of article 31 (2). In the face of the limitations on the State's power of compulsory acquisition thus incorporated in the body of the Constitution, from which "estates" alone are excluded, it would, in my opinion, be contrary to elementary canons of statutory construction to read, by implication, those very limitations into entry 36 of List II. alone or in conjunction with entry 42 of List III of the Seventh Schedule, or to deduce them from "the spirit of the Constitution", and that, too, in respect of the very properties excluded.
It is true that under the common law of eminent domain as recognised in the jurisprudence of all civilized countries, the State cannot take 'the property of its subject unless such property is required for a public purpose and without compensating the owner for its loss But, when these limitations are expressly provided for and it is further enacted that no law shall be made which takes away or abridges these safeguards, and any such law, if made, shall be void, there can be no room for implication, and the words "acquisition of property" must be understood in their natural sense of the act of acquiring property, without importing into the phrase an obligation to pay 905 compensation or a condition as to the existence of a public purpose. The entries in the Lists of the Seventh Schedule are designed to define and delimit the respective areas of legislative competence of the Union and State Legislatures, and such context is hardly appropriate for the imposition of implied restrictions on the exercise of legislative powers, which are ordinarily matters for positive enactment in the body of the Constitution.
There are indications in article 31 itself to show that the expression "acquisition of property in entry 36 of List II does not in itself carry any obligation to pay compensation. Clause (4) of that article postulates a "law" authorising acquisition of property but contravening the provisions of clause (2), that is without a public purpose or payment of compensation.' Similarly, clause (5)(b), which excepts certain categories of "laws" from the operation of clause (2), contemplates laws being made without a public purpose or payment of compensation. Such laws can be made by a State Legislature only under entry 36 which must, therefore, be taken to confer a legislative power unfettered by any implied restrictions. It was suggested that the laws referred to in sub-clause (b) of clause (5) are laws made in exercise of the taxing power or the police power of the State as the case may be, and that the sub-clause was inserted only by way of abundant caution. This is hardly a satisfactory answer. Whatever may be the position as to a taxing law, in regard to the source of legislative power, laws under heads (2) and (3) of subclause (b) must necessarily be referable to, and derive their competence from the legislative power under entry 36 of List II, in so far as they purport to authorise acquisition of any property, for the police power of the State is only the general power to regulate and control the exercise of private rights and liberties in the interests of the community and does not represent any specific head of legislative power. And even that answer is not available to Mr. Das in regard to clause (4).
117 906 Nor is the position improved for the zemindars by reading entry 36 of List II and entry 42of List III together.
It was said that the words "subject to the provisions of entry 42 in List III" must be taken to mean that the lawmaking power under entry 36 could only be exercised subject to the two conditions as to public purpose and payment of compensation, both of which are referred to in entry 42.
Those words, in my opinion, mean no more than that any law made under entry 36 by a State Legislature can be displaced or overridden by the Union Legislature making a law under entry 42 of List III. That they cannot bear the interpretation sought to be put upon them by Mr. Das is clear from the fact that similar words do not occur in entry 33 of List I which confers on Parliament the power of making laws with respect to acquisition or requisitioning of property for the purposes of the Union. For, if the restrictive conditions as to public purpose and payment of compensation are to be derived only from those words, then it must follow that in the absence of those words in entry 33, Parliament can make laws authorising acquisition or requisitioning of property without a public purpose and a provision for compensation.
No reason was suggested why parliamentary legislation with respect to acquisition or requisitioning of property is to be free from such restrictive conditions while State legislation should be subject to them. The fact is that the law-making power of both Parliament and State Legislatures can be exercised only subject to the aforesaid two restrictions, not by reason of anything contained in the entries themselves, but by reason of the positive provisions of article 31 (2), and, as laws falling under article 31 (4)or under articles 31-A and 31-B cannot be called in question in a court of law for non-compliance with those provisions, such laws cannot be struck down as unconstitutional and void.
It was further contended that the power to make a law under entry 42 of List III was a power coupled with a duty, because such law was obviously intended.
907 for the benefit of the expropriated owners, and where the Legislature has authorised such expropriation, it was also bound to exercise the power of making a law laying down the principles on which such owners should be compensated for their loss. Reliance was placed in support of this somewhat novel contention on the well-known case of Julius v. Bishop of Oxford.(1) That case, however, has no application here.
While certain powers may be granted in order to be exercised in favour of certain persons who are intended to be benefited by their exercise, and on that account may well be regarded as coupled with a duty to exercise them when an appropriate occasion for their exercise arises, the power granted to a legislature to make a law with respect to any matter cannot be brought under that category, It cannot possibly have been intended that the legislature should be under an obligation to make a law in exercise of that power, for no obligation of that kind can be enforced by the court against a legislative body.
Mr. Somayya's argument based on clause (3) of article 31, to which reference has been made earlier, is equally untenable. It is true that the "Legislature" of a State includes the Governor and that a bill passed by such Legislature cannot become a law until it receives the Governor's assent. Article 200, however, contemplates one of three courses being adopted by the Governor when a bill is presented to him after it is passed by the House or Houses of Legislature: (1) to give his assent, or (2) to withhold assent, or (3) to reserve the bill for the consideration of the President. The first proviso, to that article deals with a situation where the Governor is bound to give his assent and has no relevance here. The second proviso makes reservation compulsory where the bill would, "if it became law", derogate from the powers of the High Court, but such reservation, it is important to note, should be made without the Governor himself giving his assent to the bill. It is significant that the article does not contemplate the (1) L.R. 5 H.L. 214.
908 Governor giving his assent and thereafter, when the bill has become a full-fledged law, reserving it for the consideration of the President. Indeed, the Governor is prohibited from giving his assent where such reservation by him is made compulsory. The Constitution would thus seem to contemplate only "bills" passed by the House or Houses of Legislature being reserved for the consideration of the President and not "laws" to which the Governor has already given his assent. It was said that article 31 (3) provides a special safeguard which, in order to ensure that no hasty or unjust expropriatory legislation is passed by a State Legislature, requires for such legislation the assent of both the Governor and the President, and, to make this clear, the words, 'law" and "legislature" were deliberately used in clause (a). I am unable to agree with this view. The term "legislature" is not always used in the Constitution as including the Governor, though article 168 makes him a component part of the State Legislature. In article 173, for instance, the word is clearly used in the sense of the ,,Houses of legislature" and excludes the Governor. There are other provisions also where the word is used in contexts which exclude the Governor. Similarly the word "law" is sometimes loosely used in referring to a bill. Article 31 (4), for instance, speaks of a ''bill" being reserved for the President's assent "after it has been passed" by the "legislature of a State" and of "the law so assented to." If the expression "passed by the legislature" were taken to mean "passed by the Houses of the legislature and assented to by the Governor" as Mr. Somayya would have it understood, then, it would cease to be a "bill" and could no longer be reserved as such. Nor is the phrase "law so assented to" strictly accurate, as the previous portion of the clause makes it clear that what is reserved for the President's assent and what he assents to is a "bill" and not a law. The phrase obviously refers to what has become a law after receiving the assent of the President. Similarly, article 31 (3) must, in any judgment, be understood as 909 having reference to what, in historical sequence, having been passed by the House or Houses of the State Legislature and reserved by the Governor for the consideration of the President and assented to by the latter, has thus become a law. If it was intended that such a law should have the assent of both the Governor and the President, one would expect to find not only a more clear or explicit provision to that effect, but also some reference in article 200 to the Governor's power to reserve a measure for the consideration of the President after himself assenting to it. On the other hand, as we have seen, where reservation by the Governor is made obligatory, he is prohibited from giving his assent.
In the view I have expressed above that the objections based on the-lack of a public purpose and the failure to provide for payment of just compensation are barred under article 31 (4) and are also devoid of merits, it becomes unnecessary to consider what is a public purpose and whether the acquisition authorised by the impugned statutes subserves any public purpose. Nor is it necessary to examine whether the scheme of compensation provided for by the statutes is so illusory as to leave the expropriated owners without any real compensation for loss of their property.
Turning now to the special points arising in particular cases, it was urged by Mr. Das that section 4 (b) of the Bihar Act, which provides that all arrears of rent, royalties and cesses due for any period prior to the date of the vesting of the estates in Government "shall vest and be recoverable by the State" was unconstitutional and void. In the first place, there was no public purpose to be served by the acquisition of such property. The Government evidently lacked funds for the payment of even the illusory compensation provided for in the Act, and accordingly, hit upon the device of acquiring these arrears on payment of only 50 per cent. of their value as provided in section 24. Raising funds 910 for augmenting the Treasury could not be regarded as a public purpose such as would justify expropriation of private property Secondly, it was said that these 'arrears' would represent so much money when realised, and money could not be the subject of compulsory acquisition as the obligation to pay compensation would practically turn such acquisition into a forced loan. Nor could the payment of 50 per cent of the face value of the arrears be regarded as compensation for the loss of the total arrears, for, refund of one half of a sum of money taken away could never make good the loss of the. balance. The argument proceeds on a misconception. Whatever may be the position as regards the acquisition of money as such, it is not correct to say that a law made under entry 36 of List II cannot authorise acquisition of choses in action like arrears of rent due from the tenants which are covered by the term "property" used in that entry and in article 31. It is equally fallacious to argue that a payment in cash or 'in Government bonds of half the amount of such arrears leaves the zemindar without compensation for the balance. It is unrealistic to assume that arrears which had remained uncollected over a period of years during which the zemindar as landlord had the advantage of summary remedies and other facilities for collection, represented so much money or money's worth in his hands when he was to cease to be a landlord and to have no longer those remedies and facilities. When allowance is made for doubtful and irrecoverable arrears and the trouble and expense involved in the collection of the rest of them the payment of 50 per cent. of the face value of the entire arrears must, as it seems to me, be considered reasonable and fair compensation for taking them over. Indeed, the contention leaves one almost wondering what advantage the zemindars would gain by seeking to overthrow a provision in the Act which may well prove beneficial to them. However that may be, for the reasons already indicated, article 31 (4) bars a challenge on these two grounds, and the objections to section 4 (b) cannot be entertained.
911 An attack was also directed against section 28 (1) (f) which provides for a deduction on a percentage basis out of the gross assets as "cost of works of benefit to the raiyats of such estate or tenure", in ascertaining the net assets on which compensation is to be based. It was said that there was no evidence to show that it was usual for the zemindars to incur such expenditure, and that the deduction was a mere contrivance to reduce the compensation payable for the acquisition of their estates. The provision for such deduction was therefore a fraud on the Constitution. The argument, however, overlooks the well-established obligation of the Zemindars to maintain and repair the irrigation tanks and channels in the villages comprised in their estates. As the Privy Council pointed out in The Madras Railway Co. v.
Zemindar of Carvatenagaram(1) "the zemindars have no power to do away with these tanks in the maintenance of which large numbers of people are interested, but are charged, under Indian law, by reason of their tenure, with the duty of preserving and repairing them". These are, obviously, the works of benefit to the raiyats of the estate, and their cost, which the zemindars are thus under an obligation to bear, is a perfectly legitimate deduction in computing the net assets of the estate. If the zemindars had, in the past, neglected this duty, that does not affect the propriety of the deduction before determining the compensation payable to them. It is, therefore, idle to say that it is a mere contrivance for reducing the compensation. This apart, if, as I have endeavoured to show, payment of compensation is not a justiciable issue in the case of the impugned statutes, having regard to articles 31 (4),31-A and 3 1-B, it is not open to the court to inquire whether a deduction which results in reducing the compensation is unwarranted and therefore a fraud on the Constitution.
LastLy, Mr. Das turned his attack on section 32 (2) read with section 43 (2) (p). Under the former provision compensation was payable in cash or in bonds or partly in cash and partly in bonds. The bonds (1) (1874) 1 I.A, 364, 912 were to be either negotiable or non-negotiable and nontransferable and were payable in forty equal installments. Power was given to the State Government under section 43 (2)(p) to frame rules providing for "the proportion in which compensation shall be payable in cash and in bonds and the manner of payment of such compensation". It was argued that, while the Constitution conferred power on the legislatures under entry 42 of List III to make laws with respect to the principles on which compensation for property acquired was to be determined and the form and the manner in which such compensation was to be given, it was not competent for the Bihar Legislature to delegate this essential legislative power to the executive government. Section 43 (2)(p) being thus void and inoperative, section 32 (2) must also fall to the ground, being vague and incapable by itself of being given effect to, and, as payment of compensation was an inextricable part of the scheme of acquisition under the Act, the entire Act must go. I see no force in this argument. The legislature has applied its mind to the form in which compensation has to be paid and has fixed the number of equal installments in which it should be paid. It, has also provided for payment of interest on the compensation amount in the meantime. The proportion in which the compensation could be paid in cash and in bonds and the intervals between the installments have been left to be determined by the executive government as those must necessarily depend on the financial resources of the State and the availability of funds in regard to which the executive government alone can have special means of knowledge. By no standard of permissible delegation can the vesting of such limited discretion by a legislature in an administrative body be held incompetent. The same remark applies to the delegation of rulemaking powers in regard to payment of compensation under the other two Acts.
It was contended by Mr. Somayya that the Madhya Pradesh Act was not duly passed as no question was put by the Speaker, at the third reading of the bill 913 on the motion that it be passed into law, as required by the provisions of rule "20 (1) of the rules governing legislative business then in force, and that the omission was not a mere "irregularity of procedure" which the court is barred from enquiring into under article 212 (1)of the Constitution. Rule 20 (1) reads as follows:
"A matter requiring the decision of the Assembly shall be decided by means of a question put by the Speaker on a motion made by a member".
What appears to have happened is this. One of the Ministers moved that "The C.P. and Berar Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Bill, 1949, (No. 64 of 1949) as considered by the House be passed into law". Thereupon the Speaker read the motion to the House, and this was followed by several speeches welcoming the measure, amid general acclamation in the House, as a great boon to the tillers of the soil. The official report of the proceedings prepared by the Secretary under rule 115(1), however, did not record that the Speaker put the question in the usual form: "The question is etc." and that the motion was carried. It was argued that the official report being the only "authentic record of the proceedings of the Assembly" under rule 115(2), it must be taken to be conclusively established that the motion was not put to the House and carried by it. There is, in my opinion, no substance in the objection. The original Bill signed and authenticated by the Speaker was produced before us, and it contains an endorsement by the speaker that the Bill was passed by the Assembly on 5th April, 1950. The endorsement was signed by the Speaker on 10th May, 1950. The official report of the proceedings appears to have been prepared on 21st June, 1950, and was signed by the Speaker on 1st October, 1950. When he signed the report the Speaker did not apparently notice the omission as to the motion having been put and carried. Such omission cannot, in the face of the explicit statement by the Speaker endorsed on the Bill, be taken 118 914 to establish that the Bill was not put to the House and carried by it. In any case, the omission to put the motion formally to the House, even if true, was, in the circumstances, no more than a mere irregularity of procedure, as it is not disputed that the overwhelming majority of the members present and voting were in favour of carrying the motion and no dissentient voice was actually raised.
Mr. Somayya raised a further contention that in regard to the malguzari lands covered by the Madhya Pradesh Act, articles 31-A and 31-B could be of no assistance to the Government, as such lands are not "estates" within the meaning of clause (2) of article 31-A with the result that .the objection based on article 14 as to discrimination in the matter of payment of compensation must prevail. It will be recalled that the High Court of Patna held the Bihar Act unconstitutional as being discriminatory in providing for payment of compensation, and it was to overcome that difficulty that articles 31-A and a1-B were inserted in the Constitution. It was conceded by the learned AdvocateGeneral of Madhya Pradesh that these malguzari lands could not be regarded as estates within the meaning of article 31-A read with the Tenancy Acts in force in Madhya Pradesh, but he contended that, inasmuch as article 31-B purported to validate specifically the Madhya Pradesh Act among others, and as that article was not limited in its application to estates, the objection could not prevail. Mr. Somayya, however, submitted that the opening words of article 31-B, namely, "Without prejudice to the generality of the provisions contained in article 31-A" showed that the mention of particular statutes in article 31-B read with the Ninth Schedule was only illustrative, and that, accordingly, article 31-B could not be wider in scope. Reliance was placed in support of this argument upon the decision of the Privy Council in Sibnath Banerji's case(1). I cannot agree with that view. There is nothing in article 31-B to indicate that the specific mention of (1) [1945] F.C.R. 195 (P.C.) 915 certain statutes was only intended to illustrate the application of the general words of article 31-A. The opening words of article 31-B are only intended to make clear that article 31-A should not be restricted in its application by reason of anything contained in article 31-B and are in no way calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition of "estates." The decision cited affords no useful analogy.
In some of the cases the estates sought to be acquired are situated in what was previously the territory of Indian States and belong to their former rulers. On the merger of those States in Madhya Pradesh or Uttar Pradesh, as the case may be, by virtue of the "covenant of merger" entered into between the rulers and the Government of India the properties in question were recognised to be the "private property" of the Rulers. In these eases it was urged that that estates sought to be acquired formed part of the Rulers' "personal rights" guaranteed to them under the instrument of merger, and that neither the impugned statutes nor the notifications issued thereunder could deprive the Ruler of such properties in contravention of article 362. The Attorney-General had several answers to this argument, including the bar under article 363 to interference by courts in disputes arising out of agreements, covenants, etc., by Rulers of Indian States to which the Government of India was a party. But a short and obvious answer is that there was no contravention of any guarantee or assurance given by the Government under the covenant of merger, as the estates in question are sought to be acquired only as the "private property" of the Rulers and not otherwise. The compensation provided for, such as it is, is in recognition of their 'private proprietorship, as in the case of any other owner. There is, therefore, no force in this objection. In Appeal No. 285 of 1951 preferred by the Raja of Kapurthala, where a similar objection was raised, it was further alleged that the privy purse of the Ruler was fixed at a low figure in consideration of the Oudh 916 Estate being left to be enjoyed by him as his private property, and that its compulsory taking over would deprive him of the means of discharging his liability to maintain the members of his family. In the absence of any material to establish the facts, the allegation calls for no consideration.
Certain other minor points were also raised in some of the cases but they are not worth mentioning as they proceeded either on a misapprehension or were palpably unsound.
Thus all the objections raised to the constitutional validity of the Bihar Act, the Madhya Pradesh Act and the Uttar Pradesh Act or any part thereof fail and are overruled, MAHAJAN J.--This is an appeal under article 132 (3) of the Constitution of India from a judgment of the Full Bench of the High Court of Judicature at Patna, dated the 12th March, 1951, whereby the High Court declared the Bihar Land Reforms Act, 1950, ultra vires on the ground of its infringement of article 14 of the Constitution, but decided against the respondent on all other points.
On the 30th December, 1949, a Bill instituted the Bihar Land Reforms Bill was introduced in the Legislative Assembly of Bihar and was passed by both the Houses of Legislature, and after having been reserved for the consideration of the President of India, received his assent on the 11th September, 1950. The Act was published in The Bihar Government Gazette on the 25th September, 1950, and on the same day a notification under section 1 (3) of the Act was published declaring that the Act would come into force immediately. On the same day, a notification under section 3 of the Act was published stating that the estates and tenures belonging to the respondent and two others passed to and became vested in the State of Bihar under the provisions of the Act. The respondent filed a petition in the High Court of Judicature at Patna under article 226 of the Constitution, challenging the constitutionality of the 917 said Bihar Land Reforms Act and praying for a writ in the nature of mandamus to be issued on the State of Bihar restraining it from acting in any manner by virtue of, or under the provisions of, the said Act. This application was heard along with three title suits and other similar applications filed by various zemindars of Bihar by a Special Bench of the High Court. By three separate but concurring judgments, the Court declared the Act to be unconstitutional and void on the ground of its infringement of fundamental right under article 14 of the Constitution.
The validity of the Act was attacked before the High Court on the following grounds:
1. That the Bihar Legislature had no competence to pass it.
2. That it contravened clause (1) of article 81 of the Constitution.
3. That the vesting of the estates in the State of Bihar under the Act being in effect an acquisition of the estates, it was invalid as that acquisition was not for a public purpose and the provision for compensation was illusory.
4. That it contravened article 19 (1) (f) of the Constitution.
5. That some of its provisions were invalid on the ground of delegation of legislative powers.
6. That it was a fraud on the Constitution.
7. That it was unconstitutional as it contravened article 14 of the Constitution.
The Court held as follows :-
1. That the Bihar Legislature was competent to enact the legislation.
2. That the Act did not contravene article 31 (1) of the Constitution.
3. That the acquisition of the estates and tenures was for a public purpose.
4. That the subject-matter of the Act fell under article 31 (4) of the Constitution.
918 5. That article 19 (1) (f) had no application.
6. That whatever powers were delegated to the executive were permissible.
7. That the Act was not a fraud on the Constitution.
8. That the Act was unconstitutional as it contravened article 14 of the Constitution.
During the pendency of the appeal against the decision of the High Court the Union Government with a view to put an end to the litigation of the zamindars brought forward a Bill to amend the Constitution and this was passed by the requisite majority as the Constitution (First Amendment) Act, 1951. The zamindars brought petitions under article 32 of the Constitution impugning the Amendment Act itself as unconstitutional and void. All these petitions were disallowed. by this Court on the 5th October, 1051, and it was held that the Constitution (First Amendment) Act, 1051, had been validly enacted. In view of the Amendment Act any argument regarding the unconstitutionality of the Bihar Act based on the ground that the provisions of that Act contravened articles 14, 19 or 31 of the Constitution does not survive and the Act is not open to challenge. on any such ground. As the Act has been held invalid by the High Court solely on the ground that it violated the provisions of article 14 of the Constitution, the basis of the judgment declaring the Act to be unconstitutional is no longer tenable and it has therefore to be reversed in case this Court agrees with the decision of the High Court on the points decided against the respondent.
Mr. P.R. Das for the respondent frankly conceded that no objection to the validity of the Act at this stage could be raised on the ground that it contravened any of the provisions of Part III of the Constitution. He, however, supported the decision of the Court on grounds decided against him by that Court and urged the following points 919
1. That it was not within the competence of the Bihar State Legislature to enact the impugned Act.
2. That the acquisition of the estates not being for public purpose, the Act was unconstitutional.
3. That the legislative power in various sections of the Act has been abdicated in favour of the executive and such abdication of power was unconstitutional.
4. That the Act was a fraud on the Constitution and that certain parts of the Act were unenforceable on account of vagueness and indefiniteness.
The foundation of Mr. P.R. Das's attack on the vires of the Act mainly rests on the contention that it is implicit within the language of entry 36 of List II of the Seventh Schedule of the Constitution that property could not be acquired w
