# Dec.17. !S53 The State of West Bengal v. SuOodft Goj)al Bose awl Others

- **Citation:** [1954] 1 S.C.R. 587
- **Court:** Supreme Court of India
- **Decided:** 1954
- **Case number:** Civil Appeal No. 107 of 1952
- **Bench:** PATANJALI SAsTRI C.J, Mehr Chand Mahajan, S. R. DAs, Ghulam Hasan, Jagannadhadas Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dec-17-s53-the-state-of-west-bengal-v-suoodft-goj-al-bose-awl-others-324
- **Pages:** 88

## Headnote

Constitution
of India, arts. 19 (J) (f)
& 31-Scope ofCorrelation between art. 19 (1) (!) and art. 31-Clauses (J) and (2)
of art. 31, whether
mutually
exclusivc-"Deprivation"-"Acquisition"-f'Taking
possession
of"-Meanings
of-Bengal
!And
Revenue Sales (West Bengal Amendment) Act, 1950 (West Bengal
Act VII of 1950), s. 7-Whether
ultra
vires ·art. 19 (1) (/)
and art. 31.
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,
18j9,
the right "t:v 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) 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
15th March, 1950. It substituted
by
s. 4 the new s. 37 in place of the original s. 37 and it
provided
by s.
7 that
all
pending suits, appeals •nd other
proceedings which had not already resulted in delivery of possession, shall abate.
Thereupon B contending that s. 7 was void
1953
Dec.17.
!S53
The State of
West Bengal
v.
SuOodft Goj)al
Bose awl Others.
588
SUPREME COURT REPORTS
[1954]
as abridging his fundamental rights under art. 19(1)(£) and art. 31
inoved
the
High Court under art. 228 to withdraw the pending
appeal and
to detern1ine
the
constitutional issue raised by him.
The appeal was accordingly withdrawn and the case was heard by
~freYor Harries
C.J. and Banerjee J. who, by separate but con·
curring
Judg111ents,
declared ·S.
7 unconstitutional
and
void.
~fhey hel<l that B's right to annul under-tenures an<l evict
undertenants being a vested right acquired by him
under- his
purchase
before
s. 37
was
an1en<led,
the
retrospective
depri\'ation
of
that right
by s.
7 of
the ainending
Act without
any abaten1ent
of the
price paid by
him at the revenue sale was an
infringement of his fundamental
right under art. 19 (l)(f) to hold
property with all the rights acquired under his purchase, and as
such depriYation
\Vas
not a reasonable
restriction on the exercise
of his
vested right,
s.
7 was not saved by cl. ( 5)
of that
article and \Vas void. The State of \\Test
Bengal
preferred the
present appeal to the Supren1e Court :
Held, per PATANJALI SAsm1 C.J.-Artick 19 (!) (£)
has no
application
to this
case. 1"he vvord "hold" in the article
means
O\VIl. rfhe said sub-clause (£) gives the citizen of India the abstract
right to acquire, O\Vn and dispose of property. This article does not
deal with
the
concrete rights of the citizens of India in respect
of the property so acquired and o\vned by him.
These
concrete
rights are dealt with in art. 31 of the Constitution.
Under the scherne of t

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S.C.R.
SUPREME COURT REPORTS
587
THE STATE OF WEST BENGAL
f}.
SUBODH GOPAL BOSE AND OTHERS.
[PATANJALI SAsTRI C.J., MEHR CHAND MAHAJAN,
S. R. DAs, GHULAM HASAN and
JAGANNADHADAS JJ.j
Constitution
of India, arts. 19 (J) (f)
& 31-Scope ofCorrelation between art. 19 (1) (!) and art. 31-Clauses (J) and (2)
of art. 31, whether
mutually
exclusivc-"Deprivation"-"Acquisition"-f'Taking
possession
of"-Meanings
of-Bengal
!And
Revenue Sales (West Bengal Amendment) Act, 1950 (West Bengal
Act VII of 1950), s. 7-Whether
ultra
vires ·art. 19 (1) (/)
and art. 31.
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,
18j9,
the right "t:v 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) 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
15th March, 1950. It substituted
by
s. 4 the new s. 37 in place of the original s. 37 and it
provided
by s.
7 that
all
pending suits, appeals •nd other
proceedings which had not already resulted in delivery of possession, shall abate.
Thereupon B contending that s. 7 was void
1953
Dec.17.
!S53
The State of
West Bengal
v.
SuOodft Goj)al
Bose awl Others.
588
SUPREME COURT REPORTS
[1954]
as abridging his fundamental rights under art. 19(1)(£) and art. 31
inoved
the
High Court under art. 228 to withdraw the pending
appeal and
to detern1ine
the
constitutional issue raised by him.
The appeal was accordingly withdrawn and the case was heard by
~freYor Harries
C.J. and Banerjee J. who, by separate but con·
curring
Judg111ents,
declared ·S.
7 unconstitutional
and
void.
~fhey hel<l that B's right to annul under-tenures an<l evict
undertenants being a vested right acquired by him
under- his
purchase
before
s. 37
was
an1en<led,
the
retrospective
depri\'ation
of
that right
by s.
7 of
the ainending
Act without
any abaten1ent
of the
price paid by
him at the revenue sale was an
infringement of his fundamental
right under art. 19 (l)(f) to hold
property with all the rights acquired under his purchase, and as
such depriYation
\Vas
not a reasonable
restriction on the exercise
of his
vested right,
s.
7 was not saved by cl. ( 5)
of that
article and \Vas void. The State of \\Test
Bengal
preferred the
present appeal to the Supren1e Court :
Held, per PATANJALI SAsm1 C.J.-Artick 19 (!) (£)
has no
application
to this
case. 1"he vvord "hold" in the article
means
O\VIl. rfhe said sub-clause (£) gives the citizen of India the abstract
right to acquire, O\Vn and dispose of property. This article does not
deal with
the
concrete rights of the citizens of India in respect
of the property so acquired and o\vned by him.
These
concrete
rights are dealt with in art. 31 of the Constitution.
Under the scherne of the
Constitution
all those
broad and
basic freedo1ns inherent in the status of a citizen as a free 1nan
are e1nbodied and protected fro1n
invasion
by the
State
under
cl. (I) of art. 19,
the powers of State regulation of those freedon1s in public interest being
defined in relation
lo each of those
freedoms
by
els. (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
fron1 liability to pay compensation under cl. (2).
Held,
per
PATANJALI
SASTRI C.J.
(Mnrn CHAND MAHAJAN
and
G!!ULAM HASAN JJ. concurring).-(i) Article 31
protects the
right to property by defining the litnitations on the power of the
State to take away private property without the consent of the
ovvner.
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
•
,
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•
S.C.R.
SUPREME COURT REPORTS
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 <liffercnt expressions connoting the salne 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
n1ust 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 \vithin the
meaning of art. 31,
if, in effect, it \Vithheld the property
fron1 the possession and enjoyn1ent of the
owner,
or
seriously
impaired its use and enjoy1nent by hi1n· 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 phy·
sical 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 cl. 5(b)(ii) of art. 31
to the
case.
Per DAs ).-(!)The abridgement of the rights of the purchaser
at a revenue sale brought about by the new s. 37 amounts to no·
thing 1nore 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
publi~ and is perfectly _legitimate
and pennissible
under
cl. '(5)
of that article.
It is
well-settled that the statement of objects and reasons
is not adn1issible as an aid to the con~
struction 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
cXtent and urgency of the evil which he sought to remedy. Tlhose
cire 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(l)(f).
(II) The correlation
between art.
19(1)(f) ;rnd 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 con1plain
that his funda1nental right
under art. 19(1)(£) has been infringed. The rights enumerated
in art. 19{ 1) subsist
while
the citizen has the legal capacity to
exercise then1.
A. K. Gopalan's case [1950] S.C.R. 88 and Chiranjit Lat's case
{1950] S.C.R: 869 referred to.
1953
The Stale of
West Bengal
v.
Subodh Gopal
Bilse and Others.
1953
The State of
West Bengal
v.
Suhodh Gopal
&Je and Others.
590
SUPREME COURT REPORTS
[1954]
For the purpose
footing that art. 19
to concrete property.
of this
relates
appeal
the
matter proceeds on the
to abstract right as well as to right
(III) The true scope and effect of els. (1) and (2) of art. 31 is
that cl. ( 1) deals
with
deprivation
of
property
in exercise of
police po\ver and enuaciates the restrictions which our Constitu·
tion n1akers 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) <leals with the exercise of the power of eminent domain
and
places
limitations
on the exercise of that po\ver. These
litnitations constitute our fundan1ental rights against the State's
po\ver of eminent domain.
(1\1) Both these clauses cannot be regarded as concerned only
with the State's power of e1ninent domain, because then-
(a) cl. (1) would
be wholly redundant,
for the
>1ecessity
of a la\V is quite clearly itnplicit in cl. (2) itself;
(b) deprivation
of property otherwise than
by
taking
of
possession or acquisition o'f it \vill be outside
the pale of constitu·
tional protection :
( c) there will be
police
po\ver in respect
the legislature.
no
protection against
the exercise of
of property either by the executive or by
Chit'anjit Lal's case [1950] S.C.R. 869 and The Bihar Zami11dari
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
\vill mean :
(i) that there is no protection for
any
non·c1ttzen,
against exercise of police power
over property ;
person, citizen or
by the executive
(ii) that although in els. (2) to (6) there is protection
against the legislature
in
respect
of urestriction"
there
is
no
protection against "deprivation" ; or
(b) within cl.
(5) (b) of art. 31
because to say otherwise
\vill mean :-
(i) that the police power which is inherent in sovereignty and
<loes not require express reservation has been unnecessarily <lefin.
e<l and reserved ;
(ii) that the Constitution does not prescribe any test for the
validity of the laws which fall within
the clause and,
therefore,
the law falling within the clause may be as arch;iic, 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
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•
S.C.R.
SUPREME COURT REPORTS
591
of property can be undertaken by the State if th; 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
clearing 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 limi\s 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
cornpensation
by simply making a law is not tenable because-
(i) there will certainly be protection against the execute just
as the 29th clause
~the Magna Charta . 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 com~
pensation has to be given and under cl. (5) of art. 19 against
unreasonable re!>traint :
(iii) the absence of protection against the legislature in other
cases is not greater than the absence of protection against the
legislature in respi:ct of taxation and if the legislature can be
trusted in the latter case it may equally
be truste<l in the former
case.
(Vil) Every taking of a thing
into the custody of the State
or its non1inee <locs
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
po\ver is exercised
in the interest of
the con1munity and the power of eminent do1nain is
exercised to
in1plen1ent 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 some\vhat difficult to express, the
distinction bet\veen
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 arc
different and that in each case the provisions of the particular
law in question will have to be carefully scrutinised in order to
detern1ine in \Vhich
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 detcnnine the judicial verdict.
i953
ThtState of
f·Vest Btligal
v.
v
Subodh Gopal
Bost a11d Others.
•
\.953
TJ1eStalt o!
West Bengal
. v.
Subodh Gopal
Bose and Ot.1,er.r.
•
592
SUPREME COURT REPORTS
[1954]
(VIII) Treating the right t<> annul under-tenures and
to eject
under-tenants and decree. for .cjectment 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
fro1n the respondent B to the State or anybody else. The
purchase being at a llcvenue 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. (I)
of
art.
31
and
no
\\'ithin
cl.
(2)
of
art.
31.
If
the
i1npugne<l
section
1s
regarded
as
imposing restrictions
on the
purchaser,
such restrictions
in the circun1stances
of the case are
quite reasonable
an<l permissible under article 19(5) and, in the
premises,
the plea of unconstitutionality cannot
prevail and must
be rejected.
Per )AGAN:<ADHADAs J.-(i) On the assumption that the question raised in this case is one that arises under_ art. 19(1)(£) and
(5) of the Constitution, the impugned section of the West Bengal
Act \ 7II 0£ 1950 is intra vires because the restrictions are reason·
able within the meaning of art. 19(5) of the Constitution;
(ii) that art. 19(1)(f) while probably meant to relate to the
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 invari·
ably-to concrete property rights ;
(iii) that cl. (1) of art. 31
cannot be
~ither a declaration
or
implied
recognition
doctrine of "police po\Ver".
construed as
being
of
the
American
It
comprehends · \vithin
its scope
the
requiren1ent 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 p6ssession"
in art. 31(2)
.cannot be taken as necessarily involving transfer of title or posses·
sion. The words or phrases comprehend all cases where the title
-0r 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
-n1e:ining such possession as the nature of the property adrnits and
which the law recognizes as possession.
(iv) In the context of art. 31(2) as in the cognate context
-0f
article
19(l)(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~tenurcs
Cannot in itself be treated as property for it is not capable of independent acquisition or possession. The deprivation of it can only
an1ount to a restriction
on the exercise
of the rights as regards
the main property itself and hence must fall under art.
19(1)(£)
taken with 19(5).
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•
S.C.R.
SUPREME COURT REPORTS
593
Butchers Union etc. Co. v. Crescent City etc. Co., (111 U.S. 746),
Punjab Province v. Dau/at Singh and Others ([1946] F.C.R.
I),
Chiranjit Lal Chaudhuri 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), Pennsy/.
vania Coal Co.
v.
Mahon (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
(1_1951]
S.C.R. 451), ·State- of Bihar v.
Maharajadhiraja Kameshwar Singh of Darbhanga ([1952]
S.C.R.
889), Noble State Bank v. Haskell
(219 U.S. 104),
Eubank v.
Richmond (226 U.S. 137), Joseph Hurtado v. People of California
(1883) (IO 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 Copa/ Chose, with him) for
respondent No. 1.
1953.
December
17.
The
following Judgments
were delivered.
PATANJALI
SASTRI
C. J.-This appeal raises issues
.of 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
~he respondent gave notices of ejectment and brought
-a suit in 1946 ·to evict certain under-tenants, including
·the se.cond respondent herein, ·and to recover·. possession
!953
The State of
WestBetigaJ.
"·
Subodh Gopal
ose ·and Others.
1953
ThtSlate of
Wt.ti Bengal
v.
Subodh Gopal
BoJ t and Othtrs.
Pata11jali Sastri
C.J.
594
SUPREME COURT REPORTS
[1954]
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 t<>
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
t<>
as "the amending Act") was intmduced in the West
Bengal
Legislative
Assembly on
March 23, 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 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 int<>
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
m
delivery
of
possession
sha!I
abate.
Thereupon, the respondent, contending that section 7
was void as abriging
his
fundamental
rights
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 was 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
•
•
•
•
•
S.C.R.
SUPREME COURT REPORTS
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 su~h deprivation was not a
reasonable restriction on the respondent's exercise of
his vested right, section 7 was not saved by clause (S)
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('). 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
(l) (1950] S. C.R. 869.
(2) (1950] S. C.R. 88.
1953
The State of
WeJtBengal
v.
Subodh Gopal
Bose and Others~.
Pata,Yali Sastri;,
C.J.
T953
ThtState qf
West Bengal
..
Subodh Gopal
.Boso! and Others.
.Pal'llljali Smtri
C.J.
5%
SUPREME COURT REPORTS
[ 19541
Reasons annexed to the Bill which, for this purpose, 1s
admissible.
It will be convenient to deal first with the latter
contention of the Attorney-General. Sub-clause
(f) of
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
m
Butcher's Union etc. Co. v. Crescent City etc. Co.(') :
"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 writ 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
persona/; · (Corfield v. Coryell, 4 Wash.
(C.C.)
371).
These rights are different from the concrete rights
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
(I) JI 1 U.S. 746.
•
S.C.R.
SUPREME COURT REPORTS
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 of
citiztns which are referred to in the 4th article of the
Constitution and
m
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 cir 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 "N:o 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 Governc
ment of India Act, 1935, where the same phrase is used
.,.,.
1953
The Stale of
Weit Bengal
v.
Suhodh Copa!
Bose and Others~
Patanjali Sasfrf
C.J.
1953
The State of
West Bengal
v.
Subodh Gopal
.. -Bose and Others.
-Patanjali SaJlri
C.J.
598
SUPREME COURT REPORTS
[1954]
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 snb-clause
(f) of clause (1) of article 19 also? I do not think that
our Constitution-makers could have intended to pre>·
vide 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
-0n 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
_,
,•
S.C.R.
SUPREME COURT REPORTS
599
are sought to be exercised to the injury of others
naving 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 subdause ( 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 reasonable-
,ness of such control and regulation might have an unduly hampering effect on legislation in 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 rights 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 (cf. Punjab Province v.
1953
The State of
WestBt'ffgal
v.
Subodh Gopal
Bose and Qthers.
Patanjali Sastri
c.•J.
1953
The State of
lf e.st Bengal
v.
Subodh Gopal
Bost and Others.
PatanJali Sastri
C.J.
600
SUPREME COURT REPORTS
[1954J
Dau/at Singh and Other (') 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 of 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 hi~ 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) of article 31 deal
with the
same
topic,
namely,
compulsory
acquisition
or taking
possession
of property, clause
(2)
being only an elaboration of clause (1). There appear
(1) [1946] F.C.R. 1 (P.C.).
(2) [1950] S.C.R. 869, 924.
•
S.C.R.
SUPREME COURT REPORTS
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 exer-.
cise 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"
in 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 well be brought about otherwise than by acquiring or taking possession of it. I
think clause ( 1)
enunciat~s 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
~-95 S.C.I./59
1953
The State of
West Bengal
v.
Subodh Gopal
Bast and Othn's.
-'
Patanjali' Sadri
C.J.
1953
TheStateof
WestBengid
v.
Subodh Gopal
Bose and Others.
P1Jtanjali Sastri
C.J.
602
SUPREME COURT REPORTS
[1954)
observations were made while rejecting an argument of
the petitioner in that case, which, howevtr, 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
jt largely
nullifies
the
protection afforded by
the
Constitution to rights of private property and, jndeed,
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
ills property, or authorise its destruction, or render it
useless
for him, without any compensation and without 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, wruch
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.