# A DEPUTY . COMMISSIONER AND COLLECTOR, KAMRUP & ORS v. DURGA NATH SARMA

- **Citation:** [1968] 1 S.C.R. 561
- **Court:** Supreme Court of India
- **Decided:** 1967-09-15
- **Bench:** K. N. Wa~Choo, R. S. Bachawat, V. Ramaswami, G. K. Mitter, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-deputy-commissioner-and-collector-kamrup-ors-v-durga-nath-sarma-4145
- **Pages:** 20

## Headnote

The Assam Acquisition of Land for Flood Control and Prevention of Erosion Act (6 .of 1955) and the Assam Acquisition of Land
for Flood Control and Prevention of Erosion (Validity) Act (21 of
1960~If violative of Arts, 14 and 31(2) a! the Constitution.
C
Constitution of India, 1950, Art. 31(5)(b)(ii)-Scope of.
The Assam Acquisition of Land for Flood Control and Prevention
of Erosion Act. 1955. was passed before the Constitution was amended by the Constitution (Fourth Amendment) Act. As the Act did not
apply to the lands which were taken possession of before it came
into force, the Assam Acquisition of Land for Flood Control and Pre.
vention of Erosion (Validation) Act, 1959. Act XXI of 1960 was passD ed, validating the .requisition of lands of which such possession had
been taken. Under s. 2 of the 1960 Act any land taken over for the
construction of embankments before the 1955 Act came into force
unless the acquisition was validly made under any other law for
the time being in force shall be deemed to have been validity acquired under the 1955 Act and is deemed to have vested in the State
Government from the date the land was actually taken possession
of; and compensation was payable in accordance with the principles
E in s. 6 of the 1955 Act. Under s. 6(1) of the 1955 Act the owner of
the land shall get compensation for land including standing crops
and trees. if any, but excluding buildings or structures, a sum not
exceeding 40 times the annual land revenue in case of periodic patta
land and 15 times the annual land revenue in case of annual patt\i
land. Under s. 6(2) the owner shall get compensation for the build-'
ing or structure. if any, a sum equivalent to the sale proceeds of the
F materials plus fifteen per cent thereof.
In 1954. the Assam Government took possession of the lands of
the respondent for the construction of an embankment and the respondent was asked to submit his claim for compensation under the·
1955 and 1960 Acts after the 1960 Act was passed. He then filed a
writ petition challenging the validity of both the Acts and prayed
for a direction prohibiting the State Government from taking action
under those Acts as the compensation payable was illusory and inG adequate. The High Court held that the 1955 Act was violati".e of
Art. 31 (2), as it stood before the Fourth Amendment Act, th~t it was
not protected by Art. 31A, and that. the 1960 Act was not mdependen: of the 1955 Act and fell with it.
In appeal bv the State Government to this Court the appellant
submitted that the two Acts were not violative of Arts._ 14 an~. 31(·2)
and were i_n any event protected by Arts. 31A and Jj(.5)(]))(11).
H
fa:LD: (1 l Tho constitutional validitv of the 1955 Act must be
i•idged by Art. 3112! as it stood before. the Fourth Amendment Act:
Since the assessment of land revenue m Assam many years ago, the
market value of the lands has increased by l~aps and bounds. Un~er
s. 6(!) of the Act, the Collector. m determmmg the compensation.
L/JiN)~SCI-10
562
SUPREME OOURl' REPORTS
[1968] l S.0.B.
should take into account the value of the land as at the date of the A
acquisition and other factors, but this is meaningless because under
the first part of s. 6(1) the compensation cannot exceed a fixed multiple of the annual land revenue. The State made no attempt to
show that a multiple of land revenue payable for the land is a just
equivalent of or has any relation to the market value of the land
on the date of the acquisition. The sale proceeds under s. 6(2) cannot be regarded as a just equivalent of the'value of the building as
it stood at the time of the acquisition. The Act, therefore, does not B
ensure payment of just equivalent of the land appropriated and is
violative of Art. 31 (2) as it stood before the Fourth Amendment.
[576H; 577F-H; 578A-C]
. State of West Benga! v, Be!a Banerjee, [1954] S.C.R 558
and
State of Madras v. D. Namasivaya Muda!iar, [1964] 6 S.C.R. 936,
followed.
(2) The Act is a purely expropriatory measure. It

## Text

_Characters 0–39,939 of 59,616. This is a partial read: ask again with offset=39939 for what follows._

061
A DEPUTY . COMMISSIONER AND COLLECTOR, KAMRUP
& ORS.
B
v.
DURGA NATH SARMA
September 15, 1967
[K. N. WA~CHOO, C.J., R. S. BACHAWAT, V. RAMASWAMI,
G. K. MITTER AND K. S. HEGDE, JJ.J
The Assam Acquisition of Land for Flood Control and Prevention of Erosion Act (6 .of 1955) and the Assam Acquisition of Land
for Flood Control and Prevention of Erosion (Validity) Act (21 of
1960~If violative of Arts, 14 and 31(2) a! the Constitution.
C
Constitution of India, 1950, Art. 31(5)(b)(ii)-Scope of.
The Assam Acquisition of Land for Flood Control and Prevention
of Erosion Act. 1955. was passed before the Constitution was amended by the Constitution (Fourth Amendment) Act. As the Act did not
apply to the lands which were taken possession of before it came
into force, the Assam Acquisition of Land for Flood Control and Pre.
vention of Erosion (Validation) Act, 1959. Act XXI of 1960 was passD ed, validating the .requisition of lands of which such possession had
been taken. Under s. 2 of the 1960 Act any land taken over for the
construction of embankments before the 1955 Act came into force
unless the acquisition was validly made under any other law for
the time being in force shall be deemed to have been validity acquired under the 1955 Act and is deemed to have vested in the State
Government from the date the land was actually taken possession
of; and compensation was payable in accordance with the principles
E in s. 6 of the 1955 Act. Under s. 6(1) of the 1955 Act the owner of
the land shall get compensation for land including standing crops
and trees. if any, but excluding buildings or structures, a sum not
exceeding 40 times the annual land revenue in case of periodic patta
land and 15 times the annual land revenue in case of annual patt\i
land. Under s. 6(2) the owner shall get compensation for the build-'
ing or structure. if any, a sum equivalent to the sale proceeds of the
F materials plus fifteen per cent thereof.
In 1954. the Assam Government took possession of the lands of
the respondent for the construction of an embankment and the respondent was asked to submit his claim for compensation under the·
1955 and 1960 Acts after the 1960 Act was passed. He then filed a
writ petition challenging the validity of both the Acts and prayed
for a direction prohibiting the State Government from taking action
under those Acts as the compensation payable was illusory and inG adequate. The High Court held that the 1955 Act was violati".e of
Art. 31 (2), as it stood before the Fourth Amendment Act, th~t it was
not protected by Art. 31A, and that. the 1960 Act was not mdependen: of the 1955 Act and fell with it.
In appeal bv the State Government to this Court the appellant
submitted that the two Acts were not violative of Arts._ 14 an~. 31(·2)
and were i_n any event protected by Arts. 31A and Jj(.5)(]))(11).
H
fa:LD: (1 l Tho constitutional validitv of the 1955 Act must be
i•idged by Art. 3112! as it stood before. the Fourth Amendment Act:
Since the assessment of land revenue m Assam many years ago, the
market value of the lands has increased by l~aps and bounds. Un~er
s. 6(!) of the Act, the Collector. m determmmg the compensation.
L/JiN)~SCI-10
562
SUPREME OOURl' REPORTS
[1968] l S.0.B.
should take into account the value of the land as at the date of the A
acquisition and other factors, but this is meaningless because under
the first part of s. 6(1) the compensation cannot exceed a fixed multiple of the annual land revenue. The State made no attempt to
show that a multiple of land revenue payable for the land is a just
equivalent of or has any relation to the market value of the land
on the date of the acquisition. The sale proceeds under s. 6(2) cannot be regarded as a just equivalent of the'value of the building as
it stood at the time of the acquisition. The Act, therefore, does not B
ensure payment of just equivalent of the land appropriated and is
violative of Art. 31 (2) as it stood before the Fourth Amendment.
[576H; 577F-H; 578A-C]
. State of West Benga! v, Be!a Banerjee, [1954] S.C.R 558
and
State of Madras v. D. Namasivaya Muda!iar, [1964] 6 S.C.R. 936,
followed.
(2) The Act is a purely expropriatory measure. It provides for C
acquisition of lands both urban and agricultural for executing works
in connection with flood control or prevention of erosion. A piece of
land acquired under the Act need not be an estate or part of an
estate. The Act is not a law concerning agrarian reform and hence
is not protected by Art. 31A of the Constitution. [568G-H]
Kochuni v. State of Madras, [1960] 3 S.C.R. 887; Ranjit Singh v.
State of Punjab, [1965] 1 S.C.R. 82 and P. V. Mudaliar v. Special D
Deputy Col!ector, Madras, [1965] 1 S.C.R. 641 followed.
(3) The Act is a law for the acquisition of property and ;not a
law for preventing danger to life or property, and so, it is not protected by Art. 31(5)(b) (ii). Article 31(5) (b) (ii) provides that nothing in Art. 31(2) would affect the provisions of any law which the
State might make after the commencement of the Constitution for the
promotion of public health or the prevention of danger to life or pro- E
perty. A law for promotion of public health or for prevention of
danger to life or property sometimes has to provide for destruction
and impairment of the value of private property and the taking of
temporary possession of the property by the State. Any substantial
abridgment of the right of ownership of property including its destruction or injuriously affecting it or taking away its possessiop. and
enjoyment from the owner, amounted to a taking of property within the purview of Art. 31(2) before it was amended by the Fourth F
Amendment Act. But for Art. 31(5)(b)(ii) a law authorising such a
taking of property would have been invalid unless it provided for
compensation. The clause saved such laws from the operation of cl.
(2) and these laws were not invalid because they authorised such "
taking without payment of compensation. A law authorising the
abatement of a public menace by destroying or taking temporary
possession of private properties, if the peril cannot be abated in
some other way, can be regarded as a law for promotion of public G
health or prevention of danger to life or property within the purview
of cl. 5(b)(ii). But it is not possible to say that a Jaw for permanent
acquisition of property is such a law. The object of the acquisition
may be the opening of a public park for the improvement of public
health or the erection of an embank!llent to prevent danger to life
or property from floe>d. As the acquired property belongs to the
State, the State is free to deal with it as it chooses after the acquisition. It may close the public park and use the property for other H
purposes, or the river may recede or change its course so that it may
no longer be necessary to keep the embankment. The State may
then sell the property and appropriate the sale proceeds to its own
use. Acquistions of property for the opening of a public park or for
the erection of dams and embankments were alw.ays made under the
•
'
DY. COJifMR. V. DL'RGA NATH
563
A Land Acqufaition Act and it could not have been intended that such
acquisition could be made under laws coming within the purview of
cl. (5)(b)(ii) without payment of compensation. Cl. 5(b)(ii) did not
protect laws for acquisition of property from the operation of Art.
31(2) as it stood before the Constitution (Fourth Amendment) Act.
[574C-H; 575A-D]
State of West Bengal v. Subodh Gopal Bose, (1954} S.C.R. 587.
B and Dwarkadas Shriniwas of Bombay v. Sholapur Spinning and
Weat•ing Co. Ltd. (1954] S.C.R 674, referred to.
(4) The effect of the Constitution (Fourth Amendment) Act is
that a deprivation of property, short of the transfer of the ownership
or the pght to posse~sion of any property t0 th~ State, is not within:
the pm\<i<Ow 01 Art. 31(2). A law, made after the Fourth Amendment
Act providing for destruction of property or impairment of its value
is not invalid on the ground that it does not provide for payment of
C compensation, because, it is no longer within the purview of Art.
31(2),. and. it is not necessary to invoke cl. (5) (b) (ii) to save it. It
cannot thecefore 1;, contended that laws for permanent acquisition of
property for the promotion of public health or prevention of danger
to life or property, should be held to be saved by Art. 31(5)(b)(ii) and
that otherwise the clause would be otiose. Even now the clause will
protect laws providing for requisitioning or temporary occupation of
property strictly necessary for promotion of public health or preD vention of danger to life or property. But as the Fourth Amendment
did not amend cl. (5)(b)(ii) and did not change its original meaning, the clause will not save laws for the permanent acquisition of
property, from the operation of Art. 31(2). [575G-H; 576A-C]
(5) There is unjust discrimination between owners of land similarly situated by the mere accident of some land being required for
the purposes mentioned in the 1955 Act and some land being requirE ed for other purposes, and therefore, the Act is violative of Art. 14.
In the State of Assam, some land may be taken under the 1955 Act
for the purpose of works and other measure in connection with flood
control and prevention of erosion on payment of nominal compensation while, an adjoining land may be taken for other public purposes
under the Land Acquisition Act on payment of adequate compensation. Article 14 permits reasonable classification and differential
treatment based on substantial differences having reasonable relation
F
to the object sought to be achieved. It is not possible to hold that
the differential treatment of the land acquired under the Land Acquisition Act, 1894, and those acquired under the Assam Act of 1955 has
any reasonable relation to the object of the acquisition by the State.
[578E-G; 579C-E]
P. Vajravelu Mudaliar v. Dy. Coltector, [1965] 1 S.C.R. 614, followed.
G
[Whether the Act is ultra vires on the ground that the State
may acquire lands at its option either under the 1955 Act or under
the Land Acquisition Act, left open.] [579H]
(6) The core of the 1960 Act is the deel'I)ing provision of s.
2,
under which, certain lands are deemed to be acquired under the
earlier Act. The 1960 Act is entirely dependent upon the continuing
existence and validity of the earlier Act of 1955. As the earlier Act
is unconstitutional and has no legal existence the deemed acquisition
B under the 1960 Act is equally invalid. As this deeming prevision is
invalid all the ancillary provisons fall to the ground along with it
and the provisions -of the 1960 Act are incapable of enforcement and
are invalid. The State Legislature has no power to enact that an
F:S]isition made under a constitutionally invalid Act is valid. [580D
5(iJ
SUl'U.EltE COl'RT REl'OliT~
[196~] l S.O.L
CIVIL APPELLATE JuR1so1cnoN: Civil Appeal No. 1100 of A
1966.
Appeal from the judgment and order dated November 26.
1962 of the Assam High Court in Civil Rule No. 489 of 1961.
S. V. Guptc, Solicitor-General and Nmmit Lal, for the appellants.
B. R. l. Iyengar, for the respondent.
The Judgnv~nt of the- Court \vas delivered by
B
Bachawat, J.
In 1954, the Assam Governm~nt wok possession of the kinds of the respondent and several other persons
situated in the District of Kamrup for the .:onstruction of the 0
Pagdalia embankment. In 1955. the
Assam
Acquisition of
Land for Flood Control and Prevention of Erosion Ordinance.
1955 (Assam Ordinanl-e No. 2 of 1955> was passed enabling the
State Government to acquire lands for works or other development measures in connection with flood control or prevention of
erosion. The Ordinance was replaced by the Assam Acquisition
of Land for Flood Control and Prevention of Erosion Act. 1955 D
(Assam Act No. 6 of 1955) which was passed on April 11. 1955
with the assent of the President. In April 1956. the Stak Government passed an order in writing acquiring the lands taken over in
1954 for the construction of the Pagdalb embankment under s. 3
of Ordinance No. 2 of 1955. It seems that the reference to the
Ordinance w•1s a mistake and the acquisition was made under E
Act No. 6 of 1955. On April 26, 1956, the respondent was served
with the notice of the acquisition. By an order dated September
JO, 1959. the Deputy Commissioner. Kamrup acting on behalf of
the State Government quashed the Order dated April 19, 1956
and directed that fresh acquisition proceedings under the
Land Acquisition Act. 1894 should be started. Pursuant to F
this order, some of the lands required for the Pagdalia embank·
ment were acquired under the Land Acquisition Act on payment
of full compensation.
A draft notilkation for the acquisition of
the respondent's lands under the Land Acquisition Act was sent
by the Collector of KJmrup to the Assam Government for upproval. but this proposal was even?uall) dr,'rred On May 27. 1960.
the Assam Acquisition of Land for fl,,,,,\ Con1rol am\ Prevention G
of Erosion <Validation\ Act. 195') \As.am Act No. 21 of 1960>
was passed with the assent of the President. ·In November 1960:
the Stute Government passed an order for the acquisition of thJo
respondent's lands under s. 3 Pf the Assam Acquisition of Land
for Flood Control and Prcwntion of Erosion 'Act.
It was common case before the High Court that this acquisition was made H
under s. 3 of Act No. 21 of 1960.
On November 6. 1960, the
Collector of Kamrup served a notice upon the respondent informing him of the acquisition order and asking him to submit his
claim for compensation. On September 30. 1961. the respondent
DY. C<lMMR. v. lll'HGA :uni (Bacltawllf, J.)
561S
A filed a writ petition in the Assam High Court asking for an order
declaring Act No. 6 of 1955 and Act No. 21 of 1960 to be invalid
and directing the State Government to forbear from giving effect
to the notices issued thereunder. The High Court allowed the
petition and issued a writ of mandamus directing the State Government not to give effect to the notices issued under Act No. 21 of
B 1960. The present appeal has been
filed under a certificate
granted· by the High Court.
It is convenient at this stage to refer to the provisions of the
impugned Acts. The preamble to Act No. 6 of 1955 shows that
it was passed to make provision for the speedy acquisition of lands
necessary for works or other development measures in connection
e with flood or prevention of erosion. Section 3 gives power to the
State Government to acquire land for those purposes by an order
in writing. It is in these terms:
"3. Power to acquire land-If, in the opinion of the
State Government or such officer as is empowered in
this behalf by the State Government it is necessary or
D
expedient to acquire speedily any land for works or other
development measures in conection with flood control or
prevention of erosion. the State Government or such
officer, may .l>y an order in writing, acquire any land
stating the area and boundaries of the land."
Section 4 provides for the service and · publication of the order
B of acquisition. Under s. 5, on such service or publication the land
vests in the State Government and may be taken possession of by
the Collector. Section 6 as amended by- Act No. 17 of 1959
which provides for compensation is in these terms:
"6. Compensation-The owner of the land which
has vested in the Government under section 5(1) shall
F
get compensation at the following rates,-
G
ll
(!) for land including standing crops and trees, if
any but excluding building or structure, a sum not exceeding forty times the annual land revenue in case of
Periodic Palla Land and fifteen times the annual land
revenue in case of Annual Patta land: -
Provided that in case of revenue free land and land
paying revenue at concessional rate the compensation
will be assessed on the basis of the revenue of similar
revenue paying land of the neighbourhood.
In determining this sum, the Collector shall take
the following into consideration:-
la) The value of the land as at the date of acquisition;
lb) the adverse effect on the value of the land due to
possible floods on the-land or danger of erosion of
such land;
566
SUPREME COURT REPORTP.
(1968] I B.O.R.
(c) The benefit the owner is likely to derive in respect
of his other lands in the area due to the control
measures;
(d) The damage sustained by the person interested by
reason of the taking of any standing crops or trees
which may be on the land at the time of the Collector taking possession thereof:
(2) For building or structure, if any, a sum equivalent to. the sale proceeds of the materials of the same
plus 15 per cent thereof:-
Provided that if in lieu of this compensation the
owner chooses to take away the materials the Collector
shall allow him to do so within such time as specified by
him and the cost of the shifting of the buildings or structures as the case may be, as may be approve,d by the
Collector in the manner prescribed shall be borne by the
Government, which cost however, shall not exceed 20
per cent of the value of the buildings or structures as
the case may be as determined by the Collector."
Section 7 provides for payment of interim compensation. Under
A
B
c
D
s. 8, the Collector. is required to make an award of the compensation allowable for the land and its apporti011ment among the
persons interested in the land. Under s. 9, on the application of
any person aggrieved by the award, the Collector is required to
refer the matter to the decision of an arbitrator appointed by the B
State Government. Section JO empowers the Collector to use
such force as may be necessary to evict any person from the land.
Section. 11 imposes penalties on persons obstructing the taking of
po!!Session of the land by the Collector. Section 12 gives protection for action taken in good faith under the Act.
Section 13
bars the jurisdiction of the Courts to question the legality of ac- F
tions taken or orders made under the Act. Section 14 empowers
the State Government to make rules. Section 16 repeals Ordinance No. 2 of 1955. Ordinance No. 2 of 1955 contained similar
provisions, and it is not necessary to repeat them.
The preamble to Act No. 21 of 1960 shows that its object is
to validate the acquisition of lands taken over for flood control G
and prevention of erosion. Section 2 is in these terms:
"2. (1) Notwithstanding anything contained in the
Assam Acquisition of Land for Flood Control and Prevention of Erosi.on Act, 1955 (hereinafter referred to as
the 's11id Act'), any land taken over for the purposes of
construction of embankments or carrying out works or
R
other development measures in connection with flood
control or prevention of erosion before this Act calile into
force, except where acquisition was made validly under
any other law for the time being in force. shall be deemed
A
:e
c
DY, C0}BJR. V. Dt:RGA NATH (Bt>./UAV.lf, J.)
567
to have been validly acquired under the provisions of the
'said Act' and the land shall absolutely vest and shall
always be deemed to have been vested in the State Government from the date the land was actually taken possession of.
(2) The Collector shall, as soon as may be, after the
commencement of this Act, publish, by notification in
the official Gazette, the description of land deemed to
have been acquired under sub-section (!)."
Section 3 provides for payment of compensation. It is in these
terms;
"3.
The Collector shall, within a period of six
months from the date of commencement of this Act.
assess the value of land deemed to have been acquired
under section 2 in accordance with the principles contained in section 6 and make an award under Section 8 of
the said Act respectively.
The owner of the land shall
further be entitled to an interest al the rate of 6 per cent
per annum on the value of the award for the period from
the date the land was actually taken possession of to the
date of the award."
Section 4 gives protection for action taken in good faith in conE nection with the land deemed to have been acquired under section
2.
Section 5 provides;
r
"Except as otherwise provided in this Act. the provisions of the said Act shall apply, m111ari.1• 11111/alldis in
respect of the acquisition of the land
deemed to have
been acquired under Section 2 of this Act."
Section 6 provides that if any question arises as to the interpretation of the provisions of the Act or the applicability of any of
its provisions in respect of any land the matter shall be referred
to the Governor of Assam whose decision shall be final.
The respondent challenged the validity of Act No. 6 of 1955
G and Act No. 21 of 1960 -0n the ground that they contravened Arts.
14 and 31!2) of the Constitution. The High Court held that (I)
Act No. 6 of 1955 was violative of Art. 3 )(2) of the Constitution
as it stood before the Constitution (fourth Amendment) Act and
was not protected by Art. 31 A and (2) s. 3 of Act No. 21 of 1960
declaring that certain lands would be deemed to be validly acB quired under the earlier Act was not a law providing for· acquisition of land independently of the earlier Act and as the earlier
Act was invalid, the later Act fell with it. The High Court did 11ot
express any opinion on the question whether the two Acts were
violative of Art. 14.
568
SUPllBJIE COURT IIBl'OBTS
[1968) 1 S.C.L
Before us, counsel for the appellants submitted that the two A
Acts were not violative of Arts. 14 and 31(2) and were, in any
event, protected by Arts, 31A and 31(5)(b)(ii).
The respondent
was not represented by ·counsel, but we have had the advantage
of the argument of Mr. Iengar who assisted as amicus curiae.
The validity of both the Acts is in issue in this appeal. On
the question of the validity of Act No. 6 of 1955 the following B
points arise for decision: (I) is the Act protected by Art. 31A;
(2) is it protected by Art 31(5)(b)(ii); (3) does it infringe Art. 31(2);
(4) is it violative of Art. 14? With regard to the validity of Act
No. 21 of 1960. the following points arise for decision : (1) is it
a law providing for acquisition of lands independently of Act
No. 6 of 1955, and if not, is it valid? (2) If it is an independent c
piece of legislation, (a) is it protected by Art. 31 A; (b) is it protected by Art. 31(5)(b)(ii); (c) does it contravene Art. 31(2). and
(d) is it violative of Art. 14?
Counsel for the appellants submitted. that Act No. 6 of 1955
is a law providing for the acquisition of estates and is protected
by Art. 3 IA(l)(a). We are unable to accept this contention. It D
is now well settled that Art 3 IA(l)(a) envisages only laws concerning agrarian reform. In Kochuni's case('), the Court by a majority decision held that the Madras Marumakkathayam <Removal
of Doubts) Act, 1955 which deprived a sthanee of his properties
and vested them in the tarwad contravened Art. 19(l)(f) and was
not protected by Art. 31A and that Art. 3IA saved laws for agrarian reform only and did not enable the State to divest a proprie- 11
tor of his estate and vest it in another without reference to any
agrarian reform. In Ranjit Singh v. State of Punjab('), the Court
hcid that the East Punjab Holdings (Consolidation and Prevention
of Fragmentation) Act, 1948 as ·amended by Act No. 27 of 1960
was protected by Art. 3 lA, as the general scheme of the Act was
definitely agrarian reform and under its provisions something F
ancillary thereto in the interests of rural economy had to be undertaken to give full effect to the reforms. In P. V. Mudaliar v.
Special Deputy Collector, Madras('), the ·court held that the Land
Acquisition (Madras Amendment) Act, 1961 providing f.or the
acquisition of lands for housing scheme was not a law with reference to any agrarian reform and was not protected by Art. 31A. G
In the light of these decisions, we must hold that Act No. 6 of 1955
is not a law concerning agrarian reform and is not protected by
Art. 31A. The Act is a purely expropriatory measure. It provides for acquisition of lands both urban and agricultural for
executing works in connection with flood control or prevention
of erosion. A piece of land acquired under the Act need not be
an estate or part of an estate. It has no relation to agrarian. re- 11
form, land tenures or the elimination of intermediaries. We may
(') [1960] 3 S.C.R. 887, 897-905.
(') [1968] 1 S.C.R. 82.
(') [1965] I S.C.R. 614.
llY. cm.rnn. !J. lWhGA XATH (Bttd"1Wal, J.)
.A add that there is nothing on the record to show· that the respon·
dent's lands arc estates or parts of estates.
Counsel for the appellants next submitted that nothing in Art.
31(2) can affect Act No. 6 of 1955 as it is a law for the prevention of danger to life or property within the purview of Art. 31 (5)
(b)(ii).
This contention is somewhat novel, and requires close
1l examination.
Our attention has been drawn to certain opinions expressed
in our earlier decisions that Art. 31 (2) occupies the field· of emi·
nent domain and Art. 31(5)(b)(ii) contains a saving clause with
regard to the police powers of the State. The concepts of eminent
domain and police powers are borrowed from American law.
C The constitutional guarantee of the due process clause in the
United States Constitution requires that no private property shall
be taken for public use without just compensation. Jn the exercise of its police power, the State may pass regulations designed
to ensure public health, public morals, public safety as also
public convenienctl or general prosperity, see Chicago, Burlington
D & Quincy Railway Company v. People of the State of Illinois(').
Jn the exercise of its eminent domain power, the State may take
any property from the owner and may appropriate it for public
purposes. The police and eminent domain powers are essentially
distinct.
Under the police power many restrictions may be imposed and the property may even be destroyed without compensaE tion being given, whereas under the power of eminent domain. the
property may be appropriated to public use on payment of compensation only. The distinction between the two powers is
brought out clearly in the following passage in American Juris·
prudence, 2nd End, Vol. 16. Art. 301, p. 592:
:F
G
"The state, under the police power, cannot in any
manner actually take and appropriate property for public
use without compensation, for such action is repugnant
to the constitutional guaranty that where private property is appropriated for public
use, the owner shall
receive reasonable compensation. Thus, there is a vital
difference. which is recognised by the authorities, between an act passed with exclusive reference to the police
power of the state, without any purpose to take and
apply property to public uses, and an act which not only
declares the existence of a nuisance created by the condition of particular property, but in addition, and as the
best means of accomplishing the end in view, authorizes
the same property to be appropriated by the public."
JI In Sweet v. Rechel(') the validity of an Act lb enable the City of
Boston to abate a nuisance existing therein and for the preservation of the public health in the City by improving the drainage of
-- . ('\ 200 U.S. 561:5o L.Ed. 596, 609.
(') 159 U.S. 38():40 L.Ed. 188.
570
SUPREME COURT REPORTS
[J 968] 1 S.C.B..
the territory was sustained on the ground that the Act provided A
for payment of just compensation. The Court pointed out that
private property the condition of which was such as to endanger
the public health could not be legally taken by the Commonwealth
and apnropriated to public use without reasonable compensation
to the owner. In Delaware L. & W. R. Co. v. Morristown(') an
Ordinance establishing a public hack stand on private property B
without payment of compensation was struck down on the ground
that assuming that the creation of the public hack stand would
be a proper exercise of the police power it did not follow that the
due process clause would not safeguard to the owner just compensation for the use of the property. In United States v. Caltex
(Philippines)('), the Court held that no compensation was payable C
by the United States for the destruction by its retreating army of
private property to prevent its falling into enemy hands. But the
Court recognised that compensation would be payable for the
army's requisitioning of private property for its subsequent use.
The Court said that in times of imminent peril-such as when
fire threatened a whole community-the sovereign could, with
immunity, destroy the property of a few that the property of D
many and the lives of many more could be saved.
Indeed, it
would be folly not to destroy some building so that an entire town
inay be saved from the conflagration, as will appear from the
following historic incident referred to in Respub/ica v. Sparhawk(');
"We find, indeed, a memorable
instance of folly
E
recorded in the 3 vol. of Clarendon's History. where it is
mentioned, that the Lord Mayor of London in 1666.
when tlte cit)< was on fire, would not give directions for.
or consent to, the pulling down forty wooden houses,
or to removing the furniture, etc. belonging to the lawyers of the temple, then on the circuit, for fear he should
F
be answerable for a trespass; and in consequence of this
conduct, half that great city was burnt."
If Art. 31(5)(b)(ii) is regarded as a savin!J clause with regard to
the police power of the State, it is clear that under a law designed
to promote public health or to prevent danger to life or property
the State may in cases of imminent peril destroy or impair the G
value of private prop::rty without any obligation to pay compensation, but it' cannot arrogate to itself the power to acquire and
appropriate to its own use private property without payment of
compensation.
We shall now examine our earlier decisions in The State of
West Bengal v. Subodh Gopal Bose and Other(') and Dwarkadas K
Shrinivas of Bombay v. The Sholapur Spinning and Weaving Co.
(') 276 U.S. 182:72 L.Ed. 523, 527.
(') 344 U.S. 149:97 L.Ed. 157.
(") 1 Dall. 357, 363: 1 L.Ed. 174.
(') [1954] S.C.R. 587.
DY. CJmlR. v. Dt:ROA XATH (Bae/wwat, J.)
5il
A Ltd., and others('), where reference was made to the concepts of
eminent domain and police power in relation to els. (I) and (2)
of Art. 31 before the Constitution (Fourth Amendment) Act and
Art. 31(5)(b)(iil. The decision of Patanjali Sastri C. J .. Mahajan,
Bose. Ghulam Hasan, JJ. in those two cases (Das and Jagannadhadas, JJ. dissenting) was that els. (IJ and (2) of Art. 31 were not
mutually exclusiv"e in scope 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
power to take away private property, the deprivation contemplated
by cl. (l) being no other than the acquisition or taking possession
of the property referred to in cl. (2). The effect of the majority
B
c decision was that a substantial abridgment of the rights of ownership which withheld the property from the possession and enjoyment of the owner or seriously impaired its use or enjoyment by
him or materially reduced its value amounted to a taking of property within the purview of Art. 31(21. On the subject of eminent
domain and police power in relation to els. (!). (2) and (5)(b)(iil
the learned Judges expressed different opinions. Patanjali Sastri.
D C. J. at pp. 605, 606. 610. 612 and 614 said that (a) the power of
eminent domain was the subject of express grant in Entry No. 33
of List I and Entry No. 36 of List II and Art. 31 defined the
limitation on the exercise of this power. (bl cl. (S)(b)(iil of Art. 31
showed that blll for that clause compensation would be payable
even for the exercise of the State's power in an emergency to
E
demolish an intervening building to prevent a conflagration from
spreading and it was because of that clause that such destruction
did not entail liability to pay compensation. (c) the American
doctrine of police power as a distinct
and spccilic legislative
power was not recognised in our Constitutio11. (ell the power of
~ocial control and regulation \Vi.ls implicit in the entire \c~!islativc
F
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H
field. it was not conferred by cl. (I) nor did cl. (51 define it-exhaustively in relation to property rights.
Mahajan. J. at pp. 695 to
697 and 700 said that (al cl. (2) defined the powers of th legislature in the tield of eminent domain and (bl cl. 15Hbl@ wa~ not
insi:rted by \Vay. o~· abundant caution ~ut .was a cnn1prehensiv~·
sav1r.~! clause detin1ng the classes of depr1vat1on of propertv \Vithout
payn1ent. of C()i1lpensatio~1. a.~ for instance in cases of e~ner.~.cncy
111 order to prevent a fire from spreading.
Bose. J. at p. 734
dcprec::ted .the. use of doubtful words like police power and eminent domam 111 construmg our Constitution. Das. J at pp: 638.
643. 645, 647-~650 sa!d that (a) cl. (II.dealt with police power
and Art. 31 (2) dealt with the power of eminent domain. lb) cl.
(51(b)(11) did not exhaustively define the police power; it was ihserted by way of abundant caution to except from the purview
o.f cl. rn solr!e instances ?f. the exercise of police power superficially resembling the exercise of the power of eminent domain and
CJ [1954] S.C.R. 674.
1H2
SUPREME COUll't REPORTS
[1968] l s.c.:a.
~c) acquisition of land for any of the purposes mentioned in cl. A
(5)(b)(ii) was precisely the kind of acquisition which was always
made on payment of compensation under the Land Acquisition
Act, 1894 and a construction of cl. (5)(b)(ii) which took out of
Art. 31(2) a law made really and essentially in exercise of the
power of eminent domain could not readily be accepted as cogent
-0r correct. Jagannadhadas, J. at pp. 669, 670 and 672 said that B
{a) cl. (1) was not a declaration of the American doctrine of'police
power nor had it reference only (o the power of eminent domain,
(b) with respect to matters enumerated in the legislative lists the
'legislature could exercise every
power-including the police
power-if lt was necessary to import this concept-in so far as
lit was not provided in Arts. 19(2) to 19(6), 3J(5)(b)(ii), or other
·specific provisions, (c) an acquisition under cl. (2) did not neces- O
·sarily involve transfer of title or possession and this was indicated
by cl. (5)(b)(ii) which more often than not would cover cases of
destruction of property.
From the several conflicting opinions expressed in those two
cases it is difficult to say that the Court or a majority of Judges D
held that cl. (5)(h)(ii) saved the police power of the State in the
5trict technical sense as understood in American law. All we need
\Say is that if cl. (5)(b)(ii) is construed as saving the police power of
1he State, such police power must be exercised subject to the consti·
tutional restriction as evolved by the American judicial decisions
that private property cannot be appropriated to public use without 1
payment of compensation. But we prefer to construe Art. 31 and
·
cl. (5)(h)(ii) uninfluenced by the American concepts of eminent do-
.main and police power.
We shall endeavour to ascertain the meaning of Art. 31(5)(b)
~ii) in the context of Art. 31 as it stood before the Constitution
ffourth Amendment) Act and thereafter in the context of Art. 31 F
.as it stands after the Fourth Amendment. Article 31 as it stood
before the Constitution (Fourth
Amendment) Act was in these
terms:
"31(1). No person shall be deprived of his property
save by authority of law.
(2) No property, movable or immovable, including
any interest in, or in any company owning, any commer·
cial or industrial u'hdertaking shall be taken possession
<if or acquired for public purposes under any Jaw authorising the taking of such possession or such acquisition,
unless the law provides for compensation for the property
taken possession of or acquired and either fixes the am·
ount of the compensation, or specifies the principles on
which, and the manner in which, the compensation is to
be determined and given.
G
B
.,
A
B
c
DY. COMMR. v. DURGA NATH (Baduiwal, J.)
(3) No such law as is referred to in clause (2) made
by the legislature of a State shall have effect unless such
law, having been reserved for the consideration of the
President, has received his assent.
(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 makeD
(i) for the purpose of imposing or levying any tax or·
E
F
G
penalty, or ·
(ii) for the promotion of public health or the preven-·
tion of danger to life or property, or
(iii) in pursuance of any agreement entered into bet-·
ween 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 .
. (6) Any law of the State enacted not more than
eighteen months. before the commencement of this Constitution may within three months from such commencement be submitted to the President for his certification;
and thereupon, if the President by public notification so
certifies, it shall ·not be called in question in any court
on the ground that it contravenes the provisions of
clause (2) of this article or has contravened the provisions
of sub-section (2) of section 209 of the Government· of
India Act, 1935."
Clauses (]) and (2) of Art. 31 were limitations on the executive and the legislative powers of the State to ·deprive any person
of his property. Clause (2) imposed the limitation that the law
authorising the taking of property for public purposes must proH vide for compensation for the property. Clause (3) imposed ·the
additional limitation that if. such a law was made by the legislature of a State, it must have received the assent of the President.
Clauses (4) and (6) saved certain laws from the operation of d. (2)
and those laws could not be called in question in any Court on
SUPREME COURT REPORTS
[1967] 1 B.C,R,
the ground that it contravened cl. (2).
Clause
(5)(a) provided A
that nothing in cl. (2) would affect any existing law other than a
Jaw to which the provisions of cl. (6) applied.
Under els. (5)(b)(i)
and (5)(b)(iii) nothing in cl. (2) would affect the provisions of laws
made for the purpose of imposing or levying any tax or penalty
and certain laws with respect to evacuee property. We are not
concerned in this appeal with the interpretation of els. (4), (5)(a), B
(S)(b)(i), (5)(b)(iii) and 6.
We express no opinion on their interpretation. Clause (5)(b)(ii) provided that nothing in cl. (2) would
affect the provisions of any law which the State might make after
the commencement of the Constitution "for the promotion of
public health or the prevention of danger to life or property."
It is to be noticed that cl.
(5)(b)(ii) saved Jaws for the C
promotion of public health or the prevention of danger
to life or property. It did not save laws for the acquisition of
property.
We are satisfied that cl. (5)(b)(ii) was not intended
to except laws for the acquisition of property from
the
purview of cl. (2). Any substantial abridgment of the rights of
ownership including destruction and injurious affection of the
property and taking away its possession and enjoyment from the D
owner amounted to a taking of property within the purview of
cl. (2) as interpreted in Subodh Gopal's case(') and Dwarkadas
Shrinivas's case('). A law for prbmotion of public health or for
prevention of danger to life or property sometimes.