Full Judgement
The State of West Bengal . Vs. Subodh Gopal Bose & Ors [1953] INSC 85 (17 December 1953)
SASTRI, M. PATANJALI (CJ) MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN HASAN, GHULAM JAGANNADHADAS, B.
CITATION: 1954 AIR 92 1954 SCR 587
CITATOR INFO :
E 1954 SC 119 (1) RF 1954 SC 282 (13) R 1954 SC 728 (25) R 1955 SC 41 (6) R 1955 SC 604 (19) RF 1955 SC 781 (11) RF 1956 SC 246 (65) E&D 1957 SC 599 (24) D 1957 SC 832 (25) R 1958 SC 328 (9,10,11,34) F 1958 SC 578 (170) F 1958 SC 731 (21) R 1959 SC 308 (6) D 1959 SC 648 (38) D 1960 SC1080 (22,27,28) RF 1961 SC1684 (28,29) E 1962 SC 263 (24) D 1962 SC 458 (24) RF 1962 SC1006 (67,72,78) RF 1962 SC1781 (20) C 1963 SC 864 (25,27) R 1963 SC1019 (13,14) RF 1963 SC1667 (11) R 1965 SC 190 (4) R 1967 SC 856 (9) F 1967 SC1643 (179,227) RF 1968 SC 394 (10,18) RF 1969 SC 634 (33,35,38) RF 1970 SC 564 (54,55,151,200) R 1971 SC1594 (9) RF 1973 SC1461 (310) R 1978 SC 215 (68) R 1978 SC 597 (189) R 1978 SC 803 (35) RF 1979 SC 248 (10) E 1980 SC1042 (110) E&R 1987 SC 180 (9) F 1989 SC1629 (15) F 1990 SC1927 (61) RF 1992 SC1256 (14)
ACT:
Constitution of India, arts. 19 (1)(f) & 31--Scope of Correlation between art. 19 (1) (f) and art. 31--Clauses (1) and (2) of art. 31, whether mutually exclusive--"Deprivation"--"Acquisition"--"Taking possession of"--Meanings of--Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950 (West Bengal Act VII of 1950), s. 7--Whether ultra vires art. 19 (1) (f) and an. 31.
HEADNOTE:
The first respondent B purchased a Touzi in 24- Parganas Collectorate at a revenue sale held on 9th January, 1942. As such purchaser he acquired under s. 37 of the Bengal Revenue Sales Act, 1859, the right "to avoid and annul all under-tenures and forthwith to eject all under-tenants" with certain exceptions which are not material here. In exercise of that right he gave notices of ejectment and brought a suit in 1946 to evict certain under-tenants including the second respondent herein and to recover possession of the lands. The suit was decreed against the second respondent who preferred an appeal- to the District Judge, 24-Parganas, contending that his under-tenure came within one of the exceptions referred to in s. 37. When the appeal was pending, the Bill which was later passed as the West Bengal Revenue Sales (West Bengal Amendment) Act, 1950, was introduced in the West Bengal Legislative Assembly on 23rd March, 1950. It would appear, according to the "statement of objects and reasons" annexed to the Bill, that great hardship was being caused to a large section of the people by the application of s. 37 of the Bengal Land Revenue Sales Act, 1859, in the urban areas and particularly in Calcutta and its suburbs where "the present phenomenal increase in land values has supplied the necessary incentive to speculative purchasers in exploiting this provision (section. 37) o/the law for unwarranted large scale eviction" and it was, therefore, considered necessary to enlarge the scope of protection already given by the section to certain categories of ,tenants with due safeguards for the security of Government revenue.
The Bill was eventually passed as the amending Act and it came into force on 15th March, 1950. It substituted by s. '4 the new s. 37in place of the original s. 37 and it provided by s. 7 that all pending suits, appeals and other proceedings which had not already resulted in delivery of possession, shall abate.
Thereupon B contending that s. 7 was void 588 as abridging his fundamental rights under art. 19(1)(f) and art. 31 . moved the High Court under art. 228 to withdraw the pending appeal and to determine the constitutional issue raised by him. The appeal was accordingly withdrawn and the case was heard by Trevor Harries C.J and Banerjee J. who, by separate but concurring Judgments, declared s. 7 unconstitutional and void. They held that B's right to annul under-tenures and evict under tenants being a vested right acquired by him under his purchase before s. 37 was amended, the retrospective deprivation of that right by s. 7 of the amending Act without any abatement of the price paid by him at the revenue sale was an infringement of his fundamental right under art. 19 (1)(f) to hold property with all the rights acquired under his purchase, and as such deprivation was not a reasonable restriction on the exercise of his vested right, s. 7 was not saved by cl. (5) of that article and was void. The State of West Bengal preferred the present appeal to the Supreme Court:
Held, per PATANJALl SASTRI C.J.--Article 19 (1) (f) has no application to this case. The word "hold" in the article means own. The said sub-clause (f) gives the citizen of India the abstract right to acquire, own and dispose of property. This article does not deal with the concrete fights of the citizens of India in respect of the property so acquired and owned by him. These concrete rights are dealt with in art. 31 of the Constitution.
Under the scheme of the Constitution all those broad and basic freedoms inherent in the status of a citizen as a free man are embodied and protected from invasion by the State under cl. (1)of art. 19, the powers of State regulation of those freedoms in public interest being defined in relation to each of those freedoms by cls. (2) to (6) of that article, while rights of private property are separately dealt with and their protection provided for in art. 31, the cases where social control and regulation could extend to the deprivation of such rights being indicated in para. (ii) of sub-clause (b) of cl. (5) of art. 31 and exempted. from liability to pay compensation under cl. (2).
Held, per PATANJALI SASTRI C.J. (MEHR CHAND MAHAJAN' and GHULAM HASAN JJ. concurring)--(i) Article 31 protects the right to property by defining the limitations on the power of the State to take away private property without the consent of the owner. Clauses (1) and (2) of art. 31 are not mutually exclusive in scope and content, but should be read together and understood as dealing with the same subject, namely the protection of the right to property by means of limitations on the State's power referred to above, the deprivation contemplated in clause (1) being no other than the acquisition or taking possession of the property referred to in cl. (2).
The words "taking of ........ possession or .... ....
acquisition" in art. 31(2) and' the words "acquisition or requisitioning" in entry 589 No. 33 of List I and entry No. 36 of List II as also the words "acquired or requisitioned" in entry No. 42 of List III are different expressions connoting the same idea and instances of different kinds of deprivation of property within the meaning of art. 31(1) of the Constitution.
No cut and dried test can be formulated as to whether in a given case the owner is "deprived" of his property within the meaning of art. 31; each case must be decided as it arises on its own facts. Broadly speaking it may be said that an abridgement would be so substantial as to amount to a deprivation within the meaning of art.
31, .if, in effect, it withheld the property from the possession and enjoyment of the owner, or seriously impaired its use and enjoyment by him or materially reduced its value . The expression "taking possession" in art 31(2) of the Constitution can only mean such possession as the property taken possession of is susceptible to and need not be actual physical possession.
' (ii) It is difficult to hold that the abridgement sought to be effected retrospectively of the rights of a purchaser at a revenue sale is so substantial as to amount to a deprivation of his property within the meaning of art. 31(1) and (2). No question accordingly arises as to the applicability of el. 5(b)(ii) of art. 31 to the Per DAs J.--(1) The abridgement of the rights of the purchaser at a revenue sale brought about by the new s. 37 amounts to nothing more than the imposition of a reasonable restriction on the exercise of the right conferred by art. 19(1)(f)in the interests of the general public and is perfectly legitimate and permissible under cl. (5) of that article. It is well-settled that the statement of objects and reasons is not admissible as an aid to the construction of a statute but it can be referred to only for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill .to introduce the same and the extent and urgency of the. evil which he. sought to remedy. Those are matters which must enter into the judicial verdict as to the reasonableness of the restrictions which art.
19(5) permits to be imposed on the exercise of the right guaranteed by art. 19(1)(f).
(II) The correlation between art. 19(1)(f) and art. 31 is that if a person loses his property by reason of its having been compulsorily acquired under art. 31 he loses his right to hold that property and Cannot complain that .his fundamental right under art. 19(1)(f)has been infringed. The rights enumerated in art. 19(1) subsist while the citizen has the legal capacity to exercise them.
A.K. Gopalan's case [1950] S.C.R. 88 and Chiranjit Lal's case [1950] S.C.R. 869 referred to.
590 For the purpose of this appeal the. matter proceeds on the footing that art. 19 relates to abstract right as well as to right to concrete property. .
(III) The true scope and effect of cls. (1) and (2) of art.
31 is that cl. (1) deals with deprivation of property in exercise of police power and enunciates the restrictions which our Constitution makers thought necessary or sufficient to be placed on the exercise of that power, namely, that such power can be exercised only by authority of law and not by a mere executive fiat and that cl. (2)deals with the exercise of the power of eminent domain and places limitations on the exercise of that power. These limitations constitute our fundamental rights' against the State's power of eminent domain.
(IV) Both these clauses cannot be regarded as concerned only with the State's power of eminent domain, because then- (a) cl (1) would be wholly redundant, for the necessity of a law is quite clearly implicit in cl. (2) itself;
(b) deprivation of property otherwise than by taking of possession' or acquisition of it will be outside. the pale of constitutional protection:
(c) there will be no protection against the exercise of police power in respect of property either by the executive or by the legislature.
Chiranjit Lals case [1950] S.C.R. 869 and The Bihar Zamindari case [1952] S.C.R. 889 referred to.
(V) The State's police power is not confined-- (a) within the ambit of art. 19 for to say otherwise ,will mean:
(i) that there is no protection for any person, citizen or non-citizen, against exercise of police power by the executive over property;
(ii) that although in cls. (2) to (6) there is protection against' (iei) legislature in respect of "restriction" there is no protection against "deprivation"; or (h) within d. (5) (b) of art. 31 because to say otherwise will mean :__ (i) that the police power which is inherent in sovereignty and does not require express reservation has been unnecessarily defined and reserved;
(ii) that the Constitution does not prescribe any test for the 'validity of the laws which fail within the clause and, therefore, the law failing within the clause may be as archaic, offensive and . unreasonable as the legislature may choose to make it;
(iii) that the clause gives no protection against the executive; (iv) that the exercise of the police power by the legislature is confined within' the very narrow and inelastic limits of the clause and that no beneficial or social legislation involving taking 591 of property can be undertaken by the State if the law-falls outside the clause except on terms of payment of compensation;
(v) that acqUiSition Of property for which compensation is Usually provided, e.g.; acquisition of land for a public park, hospital Or z'dearing a slum area will henceforth be permissible without the law providing any compensation;
(VI) The argument that if art. 31(1) is read as a fundamental right against deprivation of property by the executive and art., 31(2) as laying down the Iimits of State's power of eminent domain then there will be no real protection. whatever, for the State will deprive a person of his property without compensation by simply making a law is not tenable because-- (i) there will certainly be protection against the execute just as the 29th clause of the Magna Charts was a protection against the British Crown;
(ii)"'there is protection under art. 31(2) against the legislature in the matter of taking of possession Or.
acquisition for compensations to be given and under cl.
(5) of art, 19 against unreasonable' restraint:
(iii) the absence of protection against the legislature in other cases is not greater than the absence of protection against the legislature in respect of taxation and if the legislature can be trusted in the latter case it may equally he' trusted in the former case.
(VII) Every taking of a thing into the custody of the State or its nominee does not necessarily mean the taking of possession Of that thing within the meaning of art 31(2) so as to call for compensation. The police power is exercised in the interest of the community and the power of eminent-domain is exercised to . implement a public purpose and in both cases there is a taking of possession of private, property There is however a marked difference between the exercise of these two sovereign powers. It is easy to perceive, though somewhat difficult to express, the .distinction between the two kinds of taking of possession which undoubtedly exists. In view of the wide sweep of the State's police power it is neither desirable nor possible to lay down a fixed general test for determining whether the taking of possession authorised by any particular. law falls within one category or the other. Without, therefore, attempting any such 'general enunciation of any inflexible rule it is possible to say broadly that the aim, purpose and the effect of the two kinds of taking of possession are different and that . in each "case the provisions of. the particular law in question" will have to' be carefully scrutinised in order to determine in which category-' falls the taking of possession authorised by such law. = A consideration of the ultimate aim, the immediate purpose ::and the mode and manner of the taking 'of possession and, the duration".' for which such possession ..is taken, the effect of' it '-on the rights of 'the person dispossessed and other such like elements must all determine the judicial verdict.
592 (VIII) Treating the right to annul under-tenures and to eject under-tenants .and decree for ejectment as "property" as used in art. 31(2) the State has not acquired those rights for there has been no transfer by agreement or by operation of law of those rights from the respondent B to the State or anybody else. The purchase being at a Revenue sale to. which West Bengal Act VII of 1950 applies, the purchaser of the property has been deprived of this right by authority of law and the case falls within cl. (1) of art. 31 and no Within cl.
(2) of art. 31. If the impugned section is regarded as imposing restrictions on the purchaser, such restrictions in the circumstances of the case are quite reasonable and permissible under article 19(5) and, in the premises, the _plea of unconstitutionality cannot prevail and must be rejected.
Pet' JAGANNADHADAS J.--(i) On the assumption that the question raised in this case is one that arisesunder art. 19(1)(f)and (5) of the Constitution, the impugned section of the West Bengal Act VII of 1950 is intra vires because the restrictions are reasonable within the meaning of art. 19(5) of the Constitution;
(ii) that art. 19(1)(f) while probably meant to relate tot he natural rights of the citizens comprehends within the scope also concrete property rights. The restrictions on the exercise of rights envisaged in art. 19(5) appear to relate--normally, if not invariably-to concrete property rights;
(iii) that cl. (1).of art. 31 cannot be construed as being either a declaration or implied recognition of the American doctrine of "police power".
It comprehends within its scope the requirement of the authority of law, as distinguished from executive fiat for the exercise of the power of eminent domain, but its scope may well be wider. "Acquisition" and "taking possession" in art. 31(2) cannot be taken as necessarily involving transfer of tide or possession. The words or phrases comprehend all cases where the title or possession is taken out of the owner and appropriated without his consent by transfer or extinction or by some other process, which in substance amounts to it, the possession in this context meaning such possession as the nature of the property admits and which the law recognizes as possession.
(iv) In the context of art. 31(2) as in the cognate context article 19(1)(f)--the connotation of the word "property" is limited by the accompanying words "acquisition" and "taking possession". In the present. case the right to annul under-tenures cannot in itself be treated as property for it is not capable of independent acquisition or possession. The deprivation of it can only amount to a restriction on the exercise of the fights as regards the main property itself and hence must fall under art.
19(1)(f) taken with 19(5).
593 . Butchers Union etc. Co. v. Crescent City etc. Co., (111 U.S. 746), Punjab Province v. Daulat Singh and Others ([1946] F.C.R. 1), Chiranjit Lal Chauduri v. The Union of India and Others ([1950] S.C.R. 869), A.K. Gopalan v. The State of Madras ([1950] S.C.R. 88), P.D. Shamdasani v.
Central Bank of India ([1952] S.C.R. 391), Ministry of State. for the Army v. Dalziel (68 C.L.R. 261), Pennsylvania Coal Co. v. Mahou (260 U.S. 322), Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Mills Ltd.
([1954] S.C.R. 674),' State of Madras v. V.G. Row ([1952] S.C.R. 597), Ram Singh v. The State of Madras ([1951] S.C.R. 451), State of Bihar v. Maharajadhiraja Kameshwar Singh of Darbhanga ([1952] S.C.R. 889), Noble State Bank v.
Haskeli (219 U.S. 104), Eubank v. Richmond (226 U.S. 137), Ioseph Hurtado V. People of California (1883) (10 U.S. 516), referred to..
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
107 of 1952.
Appeal from the Judgment and Order dated 22nd March, 1951, of the High Court of Judicature at Calcutta (Harries C.J. and Banerjee J.) in Reference No. 4 of 1950 .in .Civil Rule No. 1643 Of 1950.
M.C. Setalvad, Attorney-General for India' (B. Sen, with him) for the appellant.
Atul Chandra Gupta (Jay Gopd Ghose, with him) for respondent NO. 1.
1953. December 17. The following Judgments were delivered.
PATANJALI SASTRI C.J.--This appeal raises issues great public and private importance regarding the extent of protection. which the . Constitution of India accords to ownerships of private property.
The first respondent herein (hereinafter referred to as the respondent) purchased the entire Touzi No. 341 of the 24-Parganas Collectorate at a revenue sale held on ,January 9, 1942. As such purchaser, the respondent acquired under section 37 of the Bengal Revenue Sales Act, 1859 (Central Act No. 11 of 1859) the right "to avoid and annul all under-tenures and forthwith to eject all under- tenants"-with certain exceptions which are not material here. In exercise of that right the respondent gave notices of ejectment and brought a suit in 1946 to evict certain under-tenants, including the second respondent herein, and to recover possession 594 of. the lands. The suit was. decreed against the second respondent who preferred an appeal to the District Judge, 24-Parganas, Contending that his undertenure came within one of the exceptions referred to in section 37.
When the appeal was pending, the Bill, which was later passed as the West Bengal Revenue Sales (West . Bengal Amendment) Act, 1950, (hereinafter referred to as"the 'amending Act") was introduced in the West Bengal 'Legislative Assembly on March 23, 1950. It would appear, according to the ."statement 0f objects and reasons" annexed to the Bill, that great hardship was being caused to a large section of the people by the.
application of section 37 of the Bengal Land Revenue Sales Act, 1859, in the urban areas and particularly in Calcutta and its suburbs where "the present phenomenal increase in land values has supplied the necessary incentive to speculative purchasers in exploiting this provision .(section 37) of the law for unwarranted large- scale eviction" and it was, therefore,. considered necessary to enlarge the scope of protection already given by the section to certain categories of tenants with due safeguards for the security Of Government revenue.
The Bill was eventually passed as the amending Act and it .came into force on. March 15, 1950. It substituted by section 4 'the' new section 37 in the place of the original section 37, and' it provided by section 7 that all pending suits, appeals and other proceedings which had not already resulted in delivery of possession shall' abate., Thereupon, the respondent, contending that section 7 was' void as a briging his fundamental fights under article 19(1) (f) and article 31, moved the High Court 'under article 228 to withdraw the pending appeal and determine the constitutional issue .'raised by him. The appeal accordingly. withdrawn 'and the case was heard by Trevor Harries C.J. and Banerjee J.. who, by separate but, concurring 'judgments, declared section 7 unconstitutional and void '::and. returned the :case: to the District Court 'for: disposal, in conformity 595 with 'their decision. The learned Judges held that the respondent's right to annul under-tenures and evict under-tenants being a vested right acquired by him under his purchase before section 37 was amended, the retrospective deprivation of that right by section 7 of the amending Act without any abatement of the price paid by the respondent at the revenue sale was an infringement of his fundamental right under article 19(1) (f) to hold property with all the rights . acquired under his purchase, and as such deprivation was not a reasonable restriction on the respondent's exercise of his vested right, section 7 was not saved by clause (5) of that article and was void.
On behalf of the appellant State the learned Attorney-General contended before uS that if, as the respondent claims, his right to annul under-tenures and.
evict under-tenants in occupation other than those protected under the original enactment, was "property'" within the meaning of clause (1) Of article 19, then, it was also "property" within the meaning of clause (1) of article 31, as the expression must have the same'connotation in both the provisions, and the respondent,' having been "deprived" of it under the authority of law, namely, section 7 of the amending Act, such deprivation was lawful and could not be challenged. In support of this contention learned counsel strongly relied on the observations of my learned brother Das in Chiranjit Lal Choudhury's case(1 ) and' also on the .analogy of the reasoning of the majority 'in ;Gopalan's case(z). Alternatively, it was urged that if the correct view was that the nullification of the respondent's right was only the imposition of a "restriction" on the enjoyment of the property purchased by him, as .has been held by the learned Judges. below, then, it was a reasonable restriction imposed in ,the' interests of the general public under clause (5)of article 19, having regard to the facts and circumstances which led to the enactment of the measure as . disclosed in the Statement of Objects and (1) [1950] S.C. R: 869 " (2) [1950] 8. C.R. 88.
[1954] Reasons annexed to the Bill which, for this purpose, is admissible.
It will be convenient to deal first with the latter contention of the Attorney-General. Sub-clause (f) 0f clause (1) of article 19 has, in my opinion, no application to the case. That article enumerates certain freedoms under the caption "right to freedom" and deals with those great and basic rights which are recognised and guaranteed as the natural rights inherent in the status of a citizen of a free country. The freedoms declared in sub- clauses (a) to (e) and (g) are clearly of that description and in such context sub-clause (f) should, I think, also be understood as declaring the freedom appertaining to the citizen of free India in the matter of acquisition, possession and disposal of private property. In other words, it declares the citizen's right to own property and has no reference to the right to the property owned by him, which is dealt with in article 31. Referring to the "privileges and immunities" mentioned in article 4 and Amendment 14 of the American Federal Constitution, Bradley J. said in Butchers Union etc. Co. v. Crescent City etc. Co.(1):
"The phrase has a broader meaning. It includes those fundamental privileges-and immunities which belong essentially to the citizens of every free government, among which Washington J. enumerates the' right of protection;
the right to pursue and obtain happiness and safety;
the right to pass through and reside in any State 'for the purposes of trade, agriculture, professional pursuits or otherwise; to claim the benefit of the wnt of habeas corpus; to institute and maintain actions of any kind in the courts of the State and to take, hold and dispose of property either real or personal. (Corfield v. Coryell, 4 Wash. (C.C.) 371). These rights are different from the concrete fights which a man may have to a specific chattel or a piece of land or to the performance by another of a particular contract, or to damages of a particular wrong, all which may be invaded by individuals; they are the capacity, power or privilege of having and enjoying (1) 111 U. 8. 746.
597 those concrete rights and of maintaining them in the courts, which capacity, power or privilege can only be invaded by the State. These primordial and fundamental rights are the privileges and immunities citizens which are referred to in the 4th article of the Constitution and in the 14th Amendment to it." (Italics mine).
We are not here concerned with the meaning and content of the phrase" privileges and immunities" in the context of those provisions which, according to some of the Judges, have a reference only to those privileges and immunities which owe their existence to the Federal Constitution or its laws. What is of importance for the present purpose is that the two learned Judges thought that the "right to take, hold and dispose of property" was one of those "primordial and fundamental rights" of the same class' as the right to pursue happiness and safety and other such basic freedoms appertaining to free citizens and was different from the concrete rights which a person may have to a specific res or thing owned, being the capacity, power or privilege of having and enjoying those concrete rights. Sub-clause (f) of clause (1) of article 19 seems analogous to clause (1) of article 17 of the United Nations Declaration of Human Rights "Everyone has the right to own property alone as well as in association with others" and article 31 to clause (2) of article 17 "No one shall be arbitrarily deprived of his property." I have no doubt that the framers of our Constitution drew the same distinction and classed the natural right or capacity of a citizen "to acquire, hold and dispose of property" with other natural rights and freedoms inherent in the status of a free citizen and embodied them in article 19(1), while they provided for the protection of concrete rights of property owned by a person in article 31. The meaning of the phrase," to acquire, hold and dispose of property" as well as the nature of the subject matter to which it has reference in the sense indicated above, is also clear from the terms of sections 111 and 298 of the Government of India Act, 1935, where the same phrase is used 598 in prohibiting imposition of "disability" on grounds of religion, place of birth, .descent, colour or any of them on a British subject domiciled 'in the United Kingdom and on an indian subject of His Majesty determined, in the case of citizens and non-citizens not deal with expropriation of specific property belonging to such persons which is dealt with in section 299.
There are difficulties in the way of accepting the view of the learned Judges below that article 19 (1) (f) and 19 (5) deal with the concrete rights of property and the restraint to which they are liable to be subjected.
In the first place, it will be noticed that sub-clause (f) of clause (1) of article 19 deals only with the rights of citizens, whereas article 31 deals with the rights of persons in general. If article 31, which is headed by the caption "right to property", was designed to protect property rights of citizens as well as non- citizens, why was it considered necessary to provide for the protection of those rights in sub-clause (f) of clause (1) of article 19 also ? I do not think that our Constitution-makers could have intended to provide a double-barrelled constitutional protection to private property. Moreover, right to "acquire" and "dispose of" property could only refer to the capacity of a citizen.
The word "hold", which is inserted between those two words must, in my opinion, be understood to mean "own", and not as having reference to something different, viz., rights to specific things owned by a citizen ? I see no force in the objection that unless sub- clause (f) of clause (1) of article 19 read with clause (5) is construed as relating to concrete property rights also, the legislature would have the power to impose even unreasonable restrictions on the enjoyment of private property by citizens. It is difficult to believe that the framers of our Constitution could have intended to differentiate between citizens and non-citizens in regard to imposition of restrictions on enjoyment of private property. Such restrictions are imposed in exercise of the power inherent in the State to regulate private rights of property when they 599 are sought to be exercised to 'the injury of others having similar rights, and the, measure of restriction imposed. in exercise of such regulative power must be determined, in the case of citizens and non-citizens alike, by the necessity of protecting the community. On the other hand, differential treatment of citizens and non-citizens would be perfectly intelligible if sub clause (f) of clause (1) of article 19 and clause (5) are understood as dealing only with the freedom or capacity to acquire, hold and dispose of property in general, for, it would be justifiable to exclude aliens from such freedom, as has been done in several countries for the benefit of their own nationals, particularly in respect of land. Moreover, both by the preamble and the directive principles of State policy in Part IV, our "Constitution has set the goal of a social welfare State and this must involve the exercise of a large measure of social control and regulation of the enjoyment of private property. If concrete rights of property are brought within the purview of article 19(1)(f), the judicial review under clause (5)as to the reasonableness of such control and regulation might have an unduly hampering effect on legislation m that behalf, and the makers of our Constitution may well have intended to leave the Legislatures free to exercise such control and regulation in relation to the enjoyment of rights of property, providing only that if such regulation reaches the point of deprivation of property the owner should be indemnified under clause (2) of article 31 subject to the exceptions specified in para. (ii) of sub-clause (b) of clause (5) of article 31.
'Nor am I much impressed with the suggestion that the reference to "exercise" in clause (5) of article 19 of the rights conferred by sub-clause (f) of clause (1) indicates that' the' latter rights must be fights of property.
Clause (5) could as well contemplate restrictions on the excercise of a citizen's freedom to acquire, hold and dispose of property, as for instance, banning acquisition of land in a givien locality, say a tribal area, or putting a ceiling on the quantum of land that a citizen can hold, or restricting alienation of land to specified classes of persons only (of. Punjab Province v. Daulat Singh and Other (1) and the reasonableness of such restrictions being brought under judicial review. For all these reasons, I am of opinion that under the scheme of the Constitution, all those broad and basic freedoms inherent in the status of a citizen as a free man are embodied and protected from invasion by the State under clause (1)of article 19, the powers of State regulation of those freedoms in public interest being defined in relation to each of those freedoms by clauses (2) to (6) of that article, while rights of private property are separately dealt with and their protection provided for in article 31, the cases where social control and regulation could extend to the deprivation of such rights being indicated in para. (ii)of subclause (b) of clause (5) of article 31 and exempted from liability to pay compensation under clause (2). On this view, no question of correlating article 19 (1) (f) with article 31 could arise and the analogy of Gopalan's case has no application. On this view, the question whether section 7 0/3 the amending Act is a reasonable restriction on the exercise of the respondent's right to the property purchased by him could not also arise, as' clause (5) of article 19 could then have reference only to disabilities of the kind already mentioned.
Turning next to the' contention based on article 31 (1), it Was put thus in the language of Das J. in Chiranjit Lal Choudhury's case( ) which the learned Attorney-General fully adopted:
"Article 31(1) formulates the fundamental right in negative form prohibiting the deprivation of property except by authority of law. It implies that a person may be deprived of his property by authority of law. Article 31(2) prohibits the acquisition or taking possession of property for a public purpose under any law, unless such law provides for payment of compensation. It is suggested that clauses (1) and (2) 0f article 31 deal with the same topic, namely, compulsory acquisition or taking possession 0f property, clause (2) being only an elaboration of clause (1). There appear (1) [1946] F.C .R. 1 CP. C.).
(2) [1950] S.C.R. 869, 924. , 601 to me to be two objections to this suggestion.If that were the correct view, then clause (1) must be held to be wholly redundant and clause (2), by itself, would have been sufficient. In the next place such a view would exclude deprivation of property otherwise than by acquisition or taking of possession. One can conceive of circumstances where the State may have to deprive a person of his property without acquiring or taking possession of the same. For example, in any emergency, in order to prevent a fire spreading, the authorities may have to demolish an intervening building. This deprivation of property is supported in the United States of America as an exercise of "police power". This deprivation of property is different from 'acquisition or taking of possession of property which goes by the name of "eminent domain" m the American law. The construction suggested implies that our Constitution has dealt with only the law of "eminent domain", but has not provided for deprivation of property in exercise of "police powers". I am not prepared to adopt such construction, for I do not feel pressed to do so by the language used in article 31. On the contrary, the language of clause (1) of article 31 is wider than that of clause (2), for deprivation of property may welt be brought about otherwise than by acquiring or taking possession of it. I think clause (1) enunciates the general principle that no person shall be deprived of his property except by authority of law, which, put in a positive form, implies that a person may be deprived of his property, provided he is so deprived by authority of law. No question of compensation arises under clause (1).
The effect of clause (2) is that only certain kinds of deprivation of property, namely those brought about by acquisition or taking possession of it, will not be permissible under any law, unless such law provides for payment of compensation. If the deprivation of property is brought about by means other than acquisition or taking possession of it, no compensation is required, provided that such deprivation is by authority of law." I have made this lengthy extract in order to avoid possible unfairness in summarising it. These 2-9 S.C.I./59 602 observations were made while rejecting an argument of the petitioner in that case, which, however, the learned Judge decided in his favour on another point, and are thus purely obiter. With all respect-to my learned brother I am unable to share the view expressed by him. He reads clauses (1) and (2)as mutually exclusive in scope and content, clause (2) imposing limitations only on two particular kinds of deprivation of private property, namely, those brought about by acquisition or taking possession thereof, and clause (1). authorising all other kinds of deprivation with no limitation except that they should be authorised by law. There are several objections to the acceptance of this view. But the most serious of them all is that it largely nullifies the protection afforded by the Constitution to rights of private property and, indeed, stultifies the very conception of the "right to property" as a fundamental right. For, on this view, the State, acting through its legislative organ, could, for instance, arbitrarily prohibit a person from using his property, or authorise its destruction, or render it useless for him, without any compensation and with-out a public purpose to be served thereby, as these two conditions are stipulated only for acquisition and taking possession under clause (2). Now, the whole object of Part Iii of the Constitution is to provide protection for the freedoms and rights mentioned therein against arbitrary invasion by the State, which as defined by article 12 includes the Legislatures of the country. It would be a startling irony if the fundamental rights of property were, in effect, to be turned by ,construction into an arbitrary power of the State to deprive a person of his property without compensation in all ways other than acquisition or taking possession of such property. If the Legislatures were to have such arbitrary power, why should compensation and public purpose be insisted upon in connection with what are termed two particular forms of deprivation ? What could be the rational principle underlying this differentiation ? To say that clause (1) defines the "police power" in relation to rights of property is no satisfactory answer, as the Same power 603 could as well have been extended to these two particular kinds of deprivation. Such extension would at least have avoided the following anomaly compensation is paid to indemnify the owner for the loss of his property. It could make no difference to him whether such deprivation was authorised under clause (1)or clause (2). In either case his property would be gone and he would suffer loss. It would matter little to him what happened to the property after he was deprived of it--whether it was used for a public purpose or was simply destroyed without any public purpose being served. In fact, he could more readily reconcile himself to the loss forced upon him if he found his property being used for the public benefit; for, in that case, he would be participating in that benefit as a member of the public. But that consolation would be denied to him by deprivation under clause (1), which makes his 0loss all the more grievous. But, according to Das J.s. reading of that clause, the Constitution-makers have provided for no indemnification of the expropriated owner. Why ? Because, it is said, deprivation under clause (1) is an exercise of "police power." This, to my mind, is fallacious. You first construe the clause as conferring upon the State acting through its Legislature unfettered power to deprive owners of their property in all other cases except the two mentioned m clause (2), and then seek to justify such sweeping and arbitrary power by calling it "police power." According to Das J. clause (1) was designed to confer "police power" on the State to deprive persons of their property by means other than acquisition or taking possession of such property.
He would read the clause in a positive form as implying that a person may be deprived of his property by authority of law. In other words, the framers of our Constitution, who began Part Ill by formulating the fundamental rights of individuals against invasion by the Legislatures in the country, ended by formulating the right of the Legislatures to deprive individuals of their property without compensation.
604 Speaking of police power, as applied to personal liberty, Prof. Willis says( 1 ):
There are two main requirements for a proper exercise of the police power--(1) there must be a social interest to be protected which is more important than the social interest in personal liberty, and (2) there must be, as a means for the accomplishment of this end, something which bears a substantial relation there to.
This statement is equally true of police power as applied to private property. This is recognised and given effect to in clauses (2) to (6) of article 19 which delimit the regulative power of the Legislatures as applied to the freedoms enumerated in clause (1)of that article including the freedom referred to in sub-clause (f). But clause (1) of article 31 imposes no such limitations. Why should such absolute power be conferred on the Legislature in relation to private property, whereas the exercise of restrictive power under clauses (2) to (6) of article 19 is carefully limited to specified purposes and to the imposition of only reasonable restrictions in each of those cases ? Could it have been intended that, while restriction imposed on the freedoms mentioned in clause (1) of article 19 should be reasonable and in public interest, deprivation of property, except in the two cases provided for in clause (2) of article 31, need not be reasonable nor for the public benefit ? To say that the requirement of "authorisation by law" was considered sufficient limitation in all other cases of deprivation takes no note of the fact that in the case of restrictions under clauses (2) to (6) of article 19 also, their authorisation could only be by law and yet other limitations have been imposed. In fact, authorisation by law can obviously be no limitation on the Legislature, and "police power", as developed in the American case law, is essentially a legislative power.
Now, what is this "police power" and how does the Constitution of India provide for its exercise by the State ? Referring to the doctrine of police power (1) Constitutional Law, p. 728.
605 in America, I said in Gopalan's case(1): "When that power (legislative power) was threatened with prostration by the excesses of due process, the equally vague and expansive doctrine of "police power", i.e., the power of Government to regulate private rights in public interest, was evolved to counteract such excesses" And Das J. (1), said that the content of due process of law had to be narrowed down by the "enunciation and application of the new doctrine of police power as an antidote or palliative to the former". This court held in the aforesaid case that the framers of our Constitution definitely rejected the doctrine of due process of law. Is it to be supposed that they accepted the "antidote" doctrine of police power and embodied it in clause(1) of article 31 as a specific power conferred on the Legislatures to deprive persons of their property ? The suggestion seems unwarranted and, indeed, contrary to the scheme of our Constitution. That scheme, in marked contrast with the Constitution of America, is to distribute legislative powers among the Union and the State Legislatures according to the Lists of the Seventh Schedule and among such powers was included the power of "acquisition or requisitioning of property" for Union and State purposes in entry No. 33 of List I and No. 36 of List II respectively. Thus, what is called the power of eminent domain, which is assumed to be inherent in the sovereignty of the State according to Continental and American jurists and is accordingly not expressly provided for in the American Constitution, is made the subject of an express grant in our Constitution. Having granted the power in express terms, the Constitution defines in article 31 the limitations on the exercise thereof as constituting the fundamental right to property of the owner, all fundamental rights of the people being restraints on the State [see observations at page 198 in Gopalan's case(1)]. But the power of social control and regulation of private rights and freedoms for the common good (1) [1950] S.C.R. 88, 200.
(2) [1950] S.C.R. 88, 313.
606 being an essential attribute of a social and political organisation otherwise called a State, and pervading, as it does, the entire legislative field, was not specially provided for under any of the entries in the legislative Lists and was left to be exercised, wherever desired, as part of the appropriate legislative power. Even where such regulative powers are defined and delimited, as for instance in clauses (2) to (6) of article 19 in relation to the rights and freedoms specified in clause (1), the powers themselves are left to be exercised under laws made with respect to those' matters. For example, the power of social control and regulation as applied to freedom of speech and expression is exercisable under a law made with respect to entry No. 1 of List II (Public Order) or entry No. 39 of List III (Newspapers, books and printing presses) and in relation to a freedom not falling under clause (1) of-- article 19, like the freedom to drink or to eat what one likes, such freedom can be restrained or even prohibited under a law made with reference to entry No. 8 of List II (Intoxicating liquors, etc.) or entry No. 19 of List III (Drugs and poisons). Thus the American doctrine of police power as a distinct and specific legislative power is not recognised in our Constitution and it is therefore contrary to the scheme of the Constitution to say that clause (1) of article 31 must be read in positive terms and understood as conferring police power on the Legislature in relation to rights of property. I entirely agree with the observations of Mukherjea J. in Chiranjit Lal's case(1 ), that "In interpreting the provisions of our Constitution we should go by the plain words used by the Constitution makers and the importing of expressions like 'police' power', which is a term of variable and indefinite connotation in American law, can only make the task of interpretation more difficult." The correct approach, in my opinion, to the interpretation of article 31 is to bear in mind the context and setting in which it has 'been placed. As already stated, Part III of the Constitution is designed to afford protection to the freedoms and rights mentioned (1) [1950] S.C.R. 869, 907 607 therein against inroads by the State which includes the Legislatures as well as the executive Governments in the country. Though, as pointed out in Gopalan's case (1) citing Eshukbayi Eleko v. Officer Administering the Government of Nigeria( 2 ), protection against executive action is not really needed under systems of Government based on British jurisprudence according to which no member of the executive can interfere with the liberty or property of a subject except in pursuance of powers given by law, our Constitution-makers, who were framing a written Constitution, conferred such protection explicitly by including the executive Governments of the Union and the States in the definition of "the State" in article 12. A fundamental right is thus sought to be protected not only against the legislative organ of the State but also against its executive organ. The purpose of article 31, it is hardly necessary to emphasis, is not to declare the right of the State to deprive a person of his property but, as the heading of the article shows, to protect the "right to property" of every person. But how does the article protect the right to property ? It protects it by defining the limitations on the power of the State to take away private property without the consent of the owner. It is an important limitation on that power that legislative action is a pre-requisite for its exercise. As pointed out by Cooley, "The right to appropriate private property to public uses lies dormant in the State, until legislative action is had, pointing out the occasions, the modes, conditions, and agencies for its appropriation. Private property can only be taken pursuant to law"(3). In England the struggle between prerogative and Parliament having ended in favour of the latter, the prerogative right of taking private property became merged in the absolutism of Parliament, and the right to compensation as a fundamental right of the subject does not exist independently of Parliamentary enactment. The result is that Parliament alone could authorise interference with the enjoyment of private property.
(1) [1950] S.C.R 88.
(2) [1931] A C. 662.
(3) Constitutional Limitations, Vol. II, p. 1119.
608 Blackstone also says that it is the Legislature alone that can interpose and compel the individual to part with his property(1). It is this limitation which the framers of our Constitution have embodied in clause (1) of article 31 which is thus designed to protect the rights to property against deprivation by the State acting through its executive organ, the Government. Clause (2) imposes two further limitations on the Legislature itself. It is prohibited from making a law authorising expropriation except for public purposes and on payment of compensation for the injury sustained by the owner. These important limitations on the power of the State, acting through the executive and legislative organs, to take away private property are designed to protect the owner against arbitrary deprivation of his property. Clauses (1) and (2) of article 31 are thus not mutually exclusive in scope and content, but should, in my view, be read together and understood as dealing with the same subject, namely, the protection of the right to property by means of the limitations on the State power referred to above, the deprivation contemplated in clause (1) being no other than the acquisition or taking possession of property referred to in clause (2).
Much argument was expended to show that clause (2) dealt only with two specified modes of depriving a person of his property, namely, acquisition and requisitioning and could not, therefore, be considered to be a mere elaboration of clause (1), which referred to deprivation generally. It was submitted that clause (2) should be read with entry No. 33 of List I, No. 36 of List II and No. 42 of List III, each of which refers to acquisition or requisitioning of property and to no other mode of deprivation. It was also pointed out that sub-section (2) of section 299 of the Government of India Act, 1935, as well as entry No. 9 of List II of the Seventh Schedule thereof referred only to compulsory acquisition of land for public purposes, and it was not until the Bombay High Court held in Tan Bug Taim and Others v. The Collector of Bombay anal Others (2), that rule 75(a) of the Defence of India Rules (1) Commentaries, Vol. I, p, 110.
(2) I.L.R. 1946 Bom. 517.
609 under which a property situated in Bombay was requisitioned was ultra vires on the ground that entry No. 9 of List II did not confer on the Legislature the power of requisitioning, that such power was-conferred on the Central Legislature by the India (Proclamations of Emergency) Act, 1946 (9 and 10 Geo. V, Ch. 23). Attention was drawn to the Regulations and Acts relating to compulsory acquisition of land in this country including the Land Acquisition Act, 1894, all of which provided for the vesting of the property acquired in the Government or in one of its officers, and it was suggested that the framers of our Constitution, who must have been aware of the difficulties arising out of the lacuna in the Government of India Act, 1935, in regard to the power of requisitioning, added the words "taken possession of" in clause (2) and the word "requisitioning" in the entries referred to above. It was, therefore, urged that the words "acquired" or "taken possession of" should not be taken to have reference to all forms of deprivation of private property by the State.
I see no sufficient reason to construe the words "acquired or taken possession" used in clause (2) of article 31 in a narrow technical sense. The Constitution marks a definite break with the old order and introduces new concepts in regard to many matters, particularly those relating to fundamental rights, and it cannot be assumed that the ordinary word "acquisition" was used in the Constitution in the same narrow sense in which it may have been used in pre-Constitution legislation relating to acquisition of land. These enactments, it should be noted, related to land, whereas article 31(2) refers to movable property as well, as to which no formal transfer or vesting of title is necessary. Nor is there any warrant for the assumption that "taking possession of property" was intended to :mean the same thing as "requisitioning property" referred to in the entries of the Seventh Schedule. If that was the intention, why was the word "requisitioning" not used in clause (2) as well ? It is fallacious to suggest that unless "taking possession" is synonymous with "requisitioning", the power to make a law 610 authorising the taking of possession of property would be lacking because no entry in any of the Lists of the Seventh Schedule confers that power. A specific entry in the legislative Lists is no more necessary for conferring such power than for conferring power to make a jaw authorising deprivation of property which clause (1) of article 31 postulates. [See observations in P.D. Shamdasani v. Central Bank of India(1)]. The word "acquisition" is not a term of art, and it ordinarily means coming into possession of, obtaining, gaining or getting as one's own. It is in this general sense that the word has been used in articles 9, 11 and 19(1) (f)and not as implying any transfer or vesting of title. In Minister of State Jar the Army v. Dalziel(2 ) a Full Bench of the High Court of Australia had to construe the scope of the legislative power with respect to "acquisition" of property conferred on the Commonwealth Parliament by section 51 (xxxi) of the Austrailan Constitution (63 and 64 Vic., Ch. 12),. and the court decided by a majority that the power included the power to take possession of property for a temporary purpose for an indefinite period. To say that acquisition implies the transfer and vesting of title in the Government is to overlook the real nature of the power of the State as a sovereign acting through its legislative and executive organs to appropriate the property of a subject without his consent. When the State chooses to exercise such power, it creates title in itself rather than acquire it from the owner, the nature and extent of the title thus created depending on the purpose and duration of the use to which the property appropriated is intended to be put as disclosed in the law authorising its acquisition. No formula of vesting is necessary. As already stated, in the case of moveable property no formal transfer or vesting of title apart from seizing it could have been contemplated And, what is more, clause (5) (b) (ii) of article 31, which excepts any law made in future "for the prevention of danger to life or property" from the operation, of clause (2) shows that the latter clause, but for such exception, would entail liability to pay compensation for deprivation by destruction, which must therefore- (1) [1952] S.C.R. 391,394. (2) 68 C.L.R. 261.
611 be taken to fall within the scope of clause (2), for a law made for the prevention of danger to life or property may often have to provide for destruction of the property appropriate. I am of opinion that the word "acquisition" and its grammatical variations should, in the context of article 31 and the entries in the Lists referred to above, be understood in their ordinary sense, and the additional words "taking possession of" or "requisitioning" are used in article 31(2) and in the entries respectively, not in contradistinction with, but in amplification of the term "acquisition", so as to make it clear that the words taken together cover even those kinds of deprivation which do not involve the continued existence of the property after it is acquired.
They would, for instance, include destruction which implies the reducing into possession of the thing sought to be destroyed as a necessary step to that end. The expression "taking possession" can only mean taking such possession as the property is susceptible of and not actual physical possession, as "the interest in, or in any company owing, any commercial or industrial undertaking", which is expressly included in clause (2) of article 31, is not' susceptible of any actual physical occupancy or seizure. It is, however, unnecessary here to express any concluded opinion on the precise scope and meaning of the expression "shall be taken possession of or acquired" in clause (2) except to say that it does not admit of being construed in the same wide sense as the word "taken" used in the Fifth Amendment of the American Constitution, but implies such an appropriation of the property or abridgement of the incidents of its ownerships as would amount to a deprivation of the owner. Any other interference with enjoyment of private property short of such appropriation or abridgement would not be compensable under article 31(2).
It will now be seen that the two objections raised by Das J. to the view expressed above, namely, that 612 clauses (1) and (2) must be read together and understood as dealing with the same topic, are really baseless. The first objection is that clause (1) would then be redundant. It would not be so because it embodies one of the three important limitations on the exercise of the State power of deprivation of private property, namely, the necessity for the legislative action as a condition precedent to the exercise of the power and constitutes a protection against the executive organ of the State. The second objection that the State's power in an emergency to deprive a person of his property without payment of compensation, as for example, to demolish an intervening building to prevent a conflagration from spreading, would be excluded is equally baseless. Cases of that kind, as we have seen, would fail within the exception in clause (5)(b)(ii), and no compensation would be payable for the loss caused by the destruction of property authorised under that clause. The learned Attorney-General suggested that sub-clause (b) was inserted ex-abundante cautela as even without it no one could have supposed that a law of the kind mentioned in that sub-clause would fall under clause (2). There could have been no doubt, for instance, that the power of taxation referred to in paragraph (i) of that sub-clause was a distinct power. It is difficult to appreciate this argument. If the exceptions in sub-clause (b) were so obvious that they need not have been explicitly provided for, then equally must be second objection of Das J. fall to the ground. To say that sub-clause (b)is introduced by way of abundant caution is not to do away with the exceptions but to emphasise their existence aliunde. Whether it was considered necessary to provide expressly that destruction of private property under emergency conditions entails no liability to pay compensation or whether the State's power to do so was so well established that sub-clause (b)(ii)was really unnecessary and must be taken to have been inserted ex abundante cautela, in either view, the second objection must equally fail. The fact is that all the cases referred to in sub-clause (b) are different forms 613 of deprivation of property and, as difficulties of construction might arise in a written Constitution if they are not expressly and specifically excepted from the requirement under clause (2) as to payment of compensation, the framers have thought it necessary to insert clause (5) (b).
Where was the necessity, it was asked, to provide in clause (1) of article 31 for protection against the executive government in the matter of compulsory acquisition of property by the State, as no such protection is provided for in the case of the regulative powers exercisable under article 19(2) to (6)? The answer is:
the same need apparently which dictated the enactment of article 265 providing for similar protection in the matter of taxation. In any case, this would be no more of an objection, if it be an objection, to the view I have indicated above than to the other view which also recognises the necessity for legislative action before a person could be deprived of his property.
Attention was called' to article 38 as showing that one of the goals set by the Constitution was the promotion of social welfare, and it was urged that the attainment of that object as well as the growing complexities of modern conditions of life must call for an expanding power of social control and regulation, particularly in the sphere of the enjoyment of private property and that the exercise of such power without entailing liability to pay compensation ought not to be confined within the narrow limits specified in article 31 (5) (b). This is a misconception. In the first place, social welfare is not inconsistent with the ownership of private property and does not demand arbitrary expropriation of such property by the State without compensation. On the other hand, as pointed out by Blackstone "The public good is in nothing more essentially in
