# MAHARAO SAHIB SRI BHIM SINGHJI ETC. ETC v. UNION OF INDIA AND ORS. ETC. ETC. November 13, 1980/

- **Citation:** [1985] Supp. 1 S.C.R. 862
- **Court:** Supreme Court of India
- **Decided:** 1985-07-01
- **Case number:** Writ Petition No. 350/of 1977
- **Bench:** Y.V. Chandrachud C.J, P.N. Beiagwati, V.R. Kriseina Iyer, Tulzapurkar, A.P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maharao-sahib-sri-bhim-singhji-etc-etc-v-union-of-india-and-ors-etc-etc-9142
- **Pages:** 85

## Headnote

A.
Urban Land (Celling and Regulation) Act, 1976 (Act XXX/l/ of 1976)
-Whether constitutionally vai/d •is-a-vis Articles 39(b) and
(c) of tht
Constitution.
B. Urban Land (Celling and Regulation) Act, 1976 (Act XXX/l/ of 1976),
1ection 2(g),-Artificlal definitio11 of family in section 2(/), whether offends against
Article 14 of the Constltut ion.
C.
Urban Land (Ceiling and Regulation) Act, 1976 (Act XXXJJ/ of 1976),
section 11(6) ralidity of-~Vhether the maximum limit of the amount of compen·
sation payable fixed at Rupees two lakhs is illusory and confiscatory and therefore.
violative of Article 14 and 31(2) of the Constitution, as amended by the Twentyfiflh Amendment Act, 1971-Ejft'Cl of the Amendment
D. Urban Land (Ceiling and Regulation). Act, 1976 (Act XXX/// of 1976),
section 23 validity of-The provision subserves the objectives of Articles 39(b) and
(c) and hence protected by Articles 31 Band C, but the governing test of disposal
of excess lands being ''social good'', any disposal in any particular case or cases
which does not subserve that purpos~ will be invalid.
E. Urban I.and (Ceiling and Regulatian) Act, 1976 section 27(1), validity
of- Whtther offends Articles 14 and 19(1) (/).
P. Interpretation of statutes-Rule of reading down the
provision.
G
Perml8'ibillty as a part of the judicial proce&S.
H
G. Constitution of India, 1950 Articles 31 and 300.A-Baslc structure of
the Constitution, thereby applicability of-Whether right to property is a part of
the basic structure of the Constitution-State's power of "eminent domain", and
conditions precedent to exercise of that power, t!Xplained.
H. Constitution of India, 1950-Part IV-Directi•e Principles of State
Palley, character and cognisabllity by the Courts.
MSS, BHIM SINGH P. UNION
I. Interpretation of Constitution and tht approach to be adopted,
explained.
A.
J. lnterpretali•n of statulls-External and Internal Aid•,.,. •f
LIC.
W11r4.s and Phrase1-Conctpt and meaning of" PMbli1 Purpose.''
The Urban Land (Ceiling and Regulation) Act, 1976 (Act XXXIll or
1976) it in force in 17 States and all tho Union Territories in the country.· It
seet:s to impose a ceiling on vacant lands in urban agglomerations having a
population of two lakhs or more and for that purpose classifies such urban
agglomerations in various cities and towns in all the States and Union
Territories into four categoric• and fixes the ccilina limit for each aucb
cateaory.
The primary object and purpose of tho Act, as its long title and tho
Preamble show, is to provide for the imposition ofa ceiling on vacant land in
•rban agglomerations. for the acquisition of such land in excess of the ceiling
limit, to regulate the construction of buildings on such land for matters
connected there with, with a view to preventing the concentration of urban
land in the hands of a few persons and speculation and profiteering therein and
with a view to bring about an equitable distribution of land in urban agglomerations to subsl!rve the common good, presumably in furtherance of the
Directive Principles of State Policy contained in Article 39(c) and (b) respectively. The enactment has also been put in the Ninth Schedule as Item 132 by
the Constitution (Fortieth Amendment) Act, 1976; in other words, the
enactment enjoys the benefit of protective umbrella of both the articles,
Article 31-B and 31-C as it stood prior to its amendment by the Constitution
(Forty-second Amendment) Act, 1976.
By these writ octltions the petitio:iers, w:10 are holders of vacant land
in the urban agglomerations in various States, are seeking to challenge the
vires of some of the salient provisions of the Urban Land (CeHin1r and Regulation) Act, 1976 (XXXIII of 1976) and since, according to them, some of tho
impugned provisions are pivotal and non-severable, having an impact on its
entire scheme, the whole Act is liable to be struck down as being in-va1id and
unconstitutional. The petitioners have, therefore, prayed for an order quashing
notices issued to

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MAHARAO SAHIB SRI BHIM SINGHJI ETC. ETC
v.
UNION OF INDIA AND ORS. ETC. ETC.
November 13, 1980/July 1, 1985
[Y.V. CHANDRACHUD C.J., P.N. BEIAGWATI, V.R. KRISEINA IYER,
V,0, TULZAPURKAR AND A.P. SEN, JJ.)
A.
Urban Land (Celling and Regulation) Act, 1976 (Act XXX/l/ of 1976)
-Whether constitutionally vai/d •is-a-vis Articles 39(b) and
(c) of tht
Constitution.
B. Urban Land (Celling and Regulation) Act, 1976 (Act XXX/l/ of 1976),
1ection 2(g),-Artificlal definitio11 of family in section 2(/), whether offends against
Article 14 of the Constltut ion.
C.
Urban Land (Ceiling and Regulation) Act, 1976 (Act XXXJJ/ of 1976),
section 11(6) ralidity of-~Vhether the maximum limit of the amount of compen·
sation payable fixed at Rupees two lakhs is illusory and confiscatory and therefore.
violative of Article 14 and 31(2) of the Constitution, as amended by the Twentyfiflh Amendment Act, 1971-Ejft'Cl of the Amendment
D. Urban Land (Ceiling and Regulation). Act, 1976 (Act XXX/// of 1976),
section 23 validity of-The provision subserves the objectives of Articles 39(b) and
(c) and hence protected by Articles 31 Band C, but the governing test of disposal
of excess lands being ''social good'', any disposal in any particular case or cases
which does not subserve that purpos~ will be invalid.
E. Urban I.and (Ceiling and Regulatian) Act, 1976 section 27(1), validity
of- Whtther offends Articles 14 and 19(1) (/).
P. Interpretation of statutes-Rule of reading down the
provision.
G
Perml8'ibillty as a part of the judicial proce&S.
H
G. Constitution of India, 1950 Articles 31 and 300.A-Baslc structure of
the Constitution, thereby applicability of-Whether right to property is a part of
the basic structure of the Constitution-State's power of "eminent domain", and
conditions precedent to exercise of that power, t!Xplained.
H. Constitution of India, 1950-Part IV-Directi•e Principles of State
Palley, character and cognisabllity by the Courts.
MSS, BHIM SINGH P. UNION
I. Interpretation of Constitution and tht approach to be adopted,
explained.
A.
J. lnterpretali•n of statulls-External and Internal Aid•,.,. •f
LIC.
W11r4.s and Phrase1-Conctpt and meaning of" PMbli1 Purpose.''
The Urban Land (Ceiling and Regulation) Act, 1976 (Act XXXIll or
1976) it in force in 17 States and all tho Union Territories in the country.· It
seet:s to impose a ceiling on vacant lands in urban agglomerations having a
population of two lakhs or more and for that purpose classifies such urban
agglomerations in various cities and towns in all the States and Union
Territories into four categoric• and fixes the ccilina limit for each aucb
cateaory.
The primary object and purpose of tho Act, as its long title and tho
Preamble show, is to provide for the imposition ofa ceiling on vacant land in
•rban agglomerations. for the acquisition of such land in excess of the ceiling
limit, to regulate the construction of buildings on such land for matters
connected there with, with a view to preventing the concentration of urban
land in the hands of a few persons and speculation and profiteering therein and
with a view to bring about an equitable distribution of land in urban agglomerations to subsl!rve the common good, presumably in furtherance of the
Directive Principles of State Policy contained in Article 39(c) and (b) respectively. The enactment has also been put in the Ninth Schedule as Item 132 by
the Constitution (Fortieth Amendment) Act, 1976; in other words, the
enactment enjoys the benefit of protective umbrella of both the articles,
Article 31-B and 31-C as it stood prior to its amendment by the Constitution
(Forty-second Amendment) Act, 1976.
By these writ octltions the petitio:iers, w:10 are holders of vacant land
in the urban agglomerations in various States, are seeking to challenge the
vires of some of the salient provisions of the Urban Land (CeHin1r and Regulation) Act, 1976 (XXXIII of 1976) and since, according to them, some of tho
impugned provisions are pivotal and non-severable, having an impact on its
entire scheme, the whole Act is liable to be struck down as being in-va1id and
unconstitutional. The petitioners have, therefore, prayed for an order quashing
notices issued to them by the concerned competent authorities under the Act
and a mandamus directing the respondents not to implement the provisions
thereof against them.
Dismissing the petitions and upholding the constitutional validity save and
except section 27(1) by a majority of 4:1 (A.P. Son, J. partially dissenting on
tho validity of sub-sections (I), (2), (3) and tho opening words of sub-section
(4) of aection 23), tho Court.
HELD: Per majority: (Y.V. Chandrachud, C.J., P.N. Bhapati, V.R,
Krishna I7cr a.nd an. Sen JJ; V.D, Tulzapurkar, J. dissentins)·
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SUPREME COURT REPORTS
(19851 SUPPL. s.c.l\.
J. The Urban Land (Ceiling and Regulation) Act, 1976 is constitutional·
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ly valid save and ex.cept section 27(1) in so far as it imposes a restriction on
transfer of any urban of urbanisable land with a building or of a portion of
such building, which is within the ceiling area. [871 E-F]
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Per Chandrachud, C.J. and P.N. Bhagwati, J.
I. The Urban Land (Ceiling and Regulation) Act, 1976 is valid. The
vice from which a pro·dsion here or a provision there of the impugned Act
may be shown to suffer will not justify the conclusion that the Act is not
intended to or does not, by its scheme; in fact implement or achieve the
purposes of clauses (b) and (c) of Article 39 or the Constitution. [8 ,g C-D]
2. The definition of "family" jn section, 2(f) of the Act, which in
relation to a person means the individual, the wife or husband, as the case
may he. of such individual and their unmarried minor children, will not
necessarily lead to concentration of wealth in the hands of a few persons or
families. Such is eot the intendment, nor the drive, nor the direct and
inevitable consequences of the definition of "family", [87d D-E]
3. Section 11(6) of the Urban Land (Ceiling and Regulation) Act, 1976
which provides that the amount payable under sub-section (1) or sub-section
(5) of section 11 shall, in no cast', exceed two Iakhs of rupees is valid. The
amount thus payable, is not illusory and the provision is not confiscatory.
Rupees iwo lakhs is not like a farthing even if the excess land may be a
fortune.
[879 F]
4. Section 23 of the Urf'>an Land (Ceiling and Regulation) Act is valid
and does not suffer from any constitutional infirn'ity. Sub-fection (~)of section
23 is the prepondering provision governing the disposal of excess vacant land
acquired under the Act. Though it is "subject to the provisions of sub-section
(l), (2), and (3)", the provisions of sub-section (1) are enabling and not compulsive and those of sub-sections (2) and {3) are incidental to the provisions
of sub-section (1 ). The disposal of excess vacant lands must therefore be made
strictly in accordance with the mandate of sub-section (4) of section 23,
subject to this, that in a given case such land may be allotted to any person,
for any purpose relatiug to, or in connection with any ''industry" or the other
purposes mentioned in
sub~section (1). provided that by such allotment,
common good will be subserved. The governing
test of disposal of
excess land being "social good'', any disposal in any pasticular case or cases
which docs not subserve that purpose will be liable, to be struck down as being
contrary to the scheme and intendment of the Act. The preamble to the Act
ought to resolve interpretational doubts arising out of the defective drafting of
section 23. "Common Good", being the writing on the wall, any disposal
which does not serve that purpose will be outside the scope of the Act and,
therefore, lacking, lacking in competence in diverse senses. Private property
cannot under the Constitution be acquired or allotted for private purposes
though an enabling power like that contained in sub-section (1) of section 23
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MSS, BHIM SINGH 1, UNION
865
may be exercised in cases where the common good dictates the distribution of
excess vacant land to an industry, as defined in clause (b) of the Explanation to
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Section 23. [.l78 G-H;.879 A-El
5. Sub-section (J) of section 27 of the Act is invalid insofar as it imposes
a restriction on transfer of any urbanisable land with a building or a portion
only of such building, which is within the ceiling area. Such property will therefore be transferable without the constraints mentioned in sub-section (1) of
Section 27 of the Act. Nothing usefully can be added to the Judgment delivered
by Krishna Iyer, J and the reasons given therein are fully agreed to. [819 G-H]
Per Krishna Iyer, J. (Concurring)
1. The legislation on the Ceiling and Regulation of urban lands is
constitutionally valid, though section 27(1) is partially invalid. The legislation
is obviously a measure for inhibiting concentration of urban lands in the
hands of a few persons and for equitable dis~ribution of such land to subserve
the common good. Article 39(b) and (c) of the Constitution are directly attracted and the fullest exploitation of the material resources of the community
undoubtedly requires distribution of urban land geared to the common good.
[880 E-F]
2, Family as defined in section 2(f) of the Act accords with the current
life style in urban conditions and is neither artificial nor arbitrary nor violative
of Article 14. And the courts, in these days of family planning and self-reliance
of the adult cannot condemn as arbitrary, by a process of judicial ratiocination,
the legislative provision that a family shall be defined as the parents plus their
minor children. [886 B-Cj
3.1 The payment, fixed under section 11(6) of the Act of a sum of Rs.
two lakhs whatever be the total value of the property in the market is not so
fictitious and flimsy as to be a farthing. There are no absolutes in law as in life
and the compulsions of social realities must unquestionably enter the judicial
verdict. [881 G-H]
3.2 The various amendments to Article 31 culminating in the present
provision which provides for the payment of the "amount" disc.lose a determined
approach by Parliament in exercise of its constituent power to ensure that full
compensation or even fair compensation
cannot be claimed as fundamental
right by the private owner and that short of paying a "farthing for a fortune''
the question of compensation is out of bounds for the court to investigate.
['81 r-F]
3.3 Having regard to the human condition of a lara:e percentage of
pavement dwellers and slum dwellers in our urban areas and proletarian miscR
rabies in our rural vastnesses, any one who gets Rs. 2 lakhs can well be
regarded as having got something substantial to go by. In a society where half
of humanity lives below the breadline, to regard Rs. 2 lakhs as a farthing is
farewell to poignant facts and difficult to accept. Therefore, section 11(6) is
jnvulnerablc and does not contravene Article 31 (2) the payment stipulated is
re~sonable, neither a mere mockery or discriminatory. (884 E-Fj
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SUPREME COURT REPORTS
(1985) SUPPL, S.C.R.
4. The whole story of the legislation, the long gestation Qf pre-legislative
consideration, the brooJing presence of Article 39(b) and (c) and the emphasis
in Section 23(4) on common good as the guiding: factor for distribution point to
public purpose. national development and social justice as the cornerstone of
of the policy of distribution.
Any transgression of Article 39(b) and (c) is
beyond the scope of Section 23(1) and disposal of land thereunder must sub.
serve the common good and not the reverse. This limitation on the wide words
of section 23(1) is a matter of semantics and reading down the judicial process.
To sustain a Jaw by interpretation is the rule. To be trigger-happy in shootine
at sight every suspect law is judicial legicide. Courts can and must interpret
words and road their meanings so that public good is promoted and power
mlsuse is interdicted. The wide definition of ''industry" or the use of general
words like ••any person .. and .. any purpose" cannot free the whole clause from
the inarticulate major premise that only a public purpose to subserve the com·
mon good and filing the bill of Article 39;.b) and (c) will be permissible. The_
touchstone is public purpose, community good and like criteria. Jf the power
is used for favouring a private industrialist or for nepotistic reasons the oblique
act wiU meet with its judicial Waterloo. To presume as probable graft, nepo.
tism, patronage, political clout, friendly pressure or corrupt purpase is imper·
missible. The Jaw will be food, lhc power will be inlpeccable but if lhe parti·
cular act of allotment is ma/a fide or beyound the statutory and constitutional
paramete"rs such exercise will be a casualty in court and will be struck down.
The poWer of judicial review to strike at excess or ma/a fel11 is always there·
for vigilant exercise. Hence, even the crude drafting of section 23(4) by the
unwanted ••subject to••will not whittle down the power, why the obligation. to
distribute vacant land, no1 according to personal, political or official Janey but
•trictly geared to the eood set down in Article 39(b) and (c).
.
(887 D·H; 888A; 8890)
S.
Se~ion 27(1) of the Act, is.invalid, partially.
[880 AJ
6.1 The. question of 1:-asic structure being breached cannot arise when
examining the Yires of an ordinary legislation as distinguished from a Constitu·
tional amendment. Nor, indeed, can every breach of equality spell disaster as
a lethal violation of the basic structure. Peripheral inequality is inevitable
when large-scale equilisation processes aro put into action. What is a betrayal
of the basic feature is not a mere violalion of Article 14 but a shocking,
onconscienablo or unscrupulous travesty of the quintessence of equal justice.
If a legislation docs go that far it shakes' 1he democratic foundation and must
suffer the death penalty. · But to permit the Bharti ghost to haunt the corridors
of the court brandishing fatal writs for evefy every feature of inequality is
judicial paralysation of parliamentary function. Nor can the constitutional
fascination for the basic structure doctrine be made a: Trojan horse to penetrate
the entire legislative camp fighting for a new social order and to overpower the
battle for abolition or basic poverty by the "basic structure·• missile.
.
(889 E·H; 890AJ
6 2 Rjght to property is not p.lrt of the basic structure even hiS right to
develop is not the basic structure of India forever. The whole adventure oftheCQn~titq~~Qll f' t~ re~ove povcrtr and in that pro~c;:ss r~~9v~ ~.p~ntration of
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MSS. BRIM SINGH v. UNIO?I
867
property. not for a return. but for almost free, if the justice of the situation
commended itself to the legislation to take it that way.
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Kes••anda Bharall v. State of Kera/a [1972] Supp. SCR p. I referred to.
6.3 Part IV which seeks to build a Social Justice Society, is basic to our
constitutional order. The Directive Principles of State Policy being paramount
in character and fundamental in the country's governance, distributive justice,
envisaged in Ariiclc 39(b) and (c) has a key role in the developmental process
ll
or tho Socialist Republic that India has adopted. [888 C; 880 G]
Per Tulzapurkar, J. (dissenting)
1. The urban Land (Ceiling and Regulation)
Act,
1976, though
purporting to do so, does not. in fact, further the directive principles in· Aiti:le
39(b) and (c). The measure was, undoubtedly, taken in hand with a view to
achieve the unexceptional objectives underlying ArticJe 39lb) and (c) and
suppo:tcd by several State Legislatures as per their resolutions passed under
· Article 252(1) with a laudable object namely, to clothe the Parliament with
legislative competence to enact a law for the imposition of celiog on urban
immovable property for the country as a whole. but the enacted provisions
misfire a'.nd produce the opposite results and also damage or destroy the
essentia't features or basic structure of .the C.Onstitution. Section 2(f) in relation
to prescription of ceiling area permits unwarranted and unjustified concCntration
of wealth instead of preventing the same and is in teeth of the o!:-jective under
Article 39(c): Similarly section 23 produces results contrary to the objectives
under Article 39(b)
Therefore, the impugned Act is outside the protective
umbrella of Article 31-C. Further, sections 2(f), 23 and 11(6) which puts a
maximum limit on the quantum of the amount payable in respect or excess
vacant land acquired .from a holder irrespective of the ex.tent of area held by
him-these three prnvisions flagrantly violate those aspects of Articles 14 and
31 which constitute the essential and basic features of the Constitution and
hence the protective umbrella of Article 31-B is not available to the impugned
·Act inasmuch as the Fortieth Constitution Amendment Act, 1976 to the
extent to which it inserts the Act in the Ninth Schedule is beyond the constituent power of the Parliament. Section 21 which authorises compulsory
acquisition of property for private purposes is in breach of the doctrine of
eminent domain and since it flagrantly violates Article 31(1) is ultra vires and
unconstitutional. Similarly section 27 being severable is partially. ultra i·Ires and
unconstitutional, being beyond the a.t>bit of the Act and also violative of
Article 14oftheCon<lilulion. [916 B H,917 A-DJ
(
The legislative competence of the P.irliament bning still there. a. \Yell
drafted enactment within the constitutional limitations or the subject y,·ould be
tho propor remedy.
[918 G-HJ
Unior. of India v. Valluri Basa1Jah Chowdhry, [1979) 3 SCR 802 referred
to.
2.1 The artiB.cial definition of ''family" given in section 2(f) of tie Act,
when .;onsidered in rc;lation tQ the prescriptiQns of the ceilinf area ur.~i;r
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SUPREME COURT REPORTS
(198 5) SUPPL. S,C.!l.
section 4(1) is clearly violative of and strikes at the root of tho equality clause
contained in Article 14 of the Constitution. This artificial definition together
with the double standarad adopted for fixing the ceiling area runs through and
forms the basis of chapter Ill of the Act and the discriminatory result or
inequalities produced thereby are bound to have an impact on the scheme of
that chapter and, therefore, along with it the whole chapter Ill must fall beina
violative of Article 14.
[898 C-F]
2.2 The classification made between minor children and major children
belonging to a family is not based on any intelligible differentia having no
nexus to the object sought to be achieved by the Act, which is to acquire
excess vacant land after leavjng the ceiling area to the family. It has not been
shown that so called nuclear families alleged by in vogue have replaced nor.
mal families which include major sons or joint Hindu families in urban
areas.
[898 B-CJ
Karimbil Kunhikoman v. State of Kera/a [1962] Supp. l SCR 829;
A.P. Krishnasami Naidu v. State of Madras [l9E4] 7 S~ R 82 followed.
2.3 Apart from the discriminatory result which the artificial definition
of family in section 2U) produces, the adoption of the artificial definition
of "family" and double standard for fixing ceiling area one for a family with
minor children and another for a family with major children and completely
ignoring the concept of Joint Hindu Fan1ily in relation to prescription of ceiling
area clearly lead to results which run counter to the directive principles
contained in Article 39 (c) of th• Constitution.
[899 E-F]
3.1
Section 1!(6) of the Act, which puts the maximum limit of Rupees
Two Iakhs on the amount payable to a holder of excess vacant land acquired
under the Act irrespective of the extent of such excess vacant land held by him
is not n1erely violative of Articles 14 and 32{2) of the Constitution, but would
be a piece of confiscatory legislation, because vacant land in excess of that
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portion which at the prescribed rates is worth Rupees Two lakhs atands
confiscated to tho State without any payment whatsover.
(911 C-D]
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3 2 The enactments involving large schemes of social engineering like
abolition of Zamindars, agrarian reforms nationalisation of undertakinas
and
businesses and
the like,
where avowedly ihe
benefit of the
community or public at large is the sole consideration are distinguishable from
the instant case, where "industry'' has been expressly defined to include
business, trade or profession in private sector and where power has been
conferred upon the State <Jovernment to a1lot properties acquired under the
enactment to individual businessman, trader or professional to enable him to
carry on his private business, trade or profession, that is to say, where the
legislation is a fraud on State's power of eminent don1ain, such a provision of
putting a maximum limit on compensation payable in respect of the acquired
property irrespective of its extent will have to be rtgardeQ as ~9Ptiscatory in
11~t11r~.
[911E, 912 A-CJ
MSS. BHIM SINGH V. UNION
869
However, section II (6) ia clearly a severable provision, and, therefore,
ultra vires and unconstitutional.
[913A]
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Slate of Kera/a v. The Gwalior Rayon Silk Mfg. Co. Ltd. (1974] I SCR
671 distinguished.
4.1 Section 23 of the Act which authorises compulsory acquisition of
property for private purposes Oagrantly violates those aspects of Article 31
-which constitute the essential or ba5ic features of the Constitution and it,
therefore, ult1·a virts and unconstitutional. Further, indispensably, it is the
most vital, integral and non-severable part of the entire scheme of urban
ceiling as without it the scheme will merely remain a scheme for unjust and
illegal enrichment of the State, and therefore, the whole of chapter III in
which it occurs, must fall with it.
(906 A-BJ
4.2 Article 31 of the Constitution has more than one facet: it
undoubtedly confers upon individuals (including non citizens) and corporate
bodies a fundamental right to property and incorporates in our Constitution
the concept of State's power of eminent domain i.e. power of compulsory
acquisition of private property and prescribes two conditions precedent to the
exercise of that power, n1mely, (i} such acquisition cannot be except for a
public purpose and (ii) it must be on payment of compensation (now termed
"amount") to the claimant having interest in the properly.
But these two
conditions precedent are sine qua non for the exercise of the State's power of
eminent domain and, represent those aspects of the right t..:i property under
Article 31 which constitute the essential or basic features of our Constitution
and for that matter these would be so of any democratic constitution and.
therefore, any law authorising expropriation of private property in breach of
anyone of those conditions would damagP. or destroy the basic scructure of our
Constitution.
(903 H, 904A, B-EJ
H.H. Kesarananda Bharati v. Union of India & O". [1973] Supp. SCR I
referred to.
State of Bihor v. Kamer\wa- Singh, [1952) SCR 839 rolied on.
4.3 It is extremely doubtful whether co:npulsory acquisition of all the
excess vacant land in all urban agglomerations throughOut the country for a
bald, indefinite and unspecified objective like ''industry'' simpliciter without
any attempt at dovetailing it by having a proper scheme for industrial develop·
ment will constitute a valid public purpose for the exercise of the power of
eminent domain."
[905 C-D]
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4.4 The adoption of a wide definition of "industry"' so as to include
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any business, trade or profession in private sector not only makes a mockery
of :·public purpose'', but also, in the context of eminent domain is clearly
suicidal. What is worse is that under the priorities laid down such private
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purposes are to be catered to first and then comes the diitposal or distribution
thereof to aubserve common good, which clearly smacks of depriving Peter of
his property to give it to Paul and, therefore, clearly amounts to an invalid
exercise of State's power of "tmintnt don1ain".
[90~ F,G-H,906 A]
4.S Besides, the wide definition of "industry'' and the priorities for
disposal or distribution of excess vacant land laid down in sub-sections (1) to
(5) have adverse impact on the directive principle contained in Article 39(b) in
as much as private purposes receive precedence over common good. The
enactment which contains such provisions that produce contra results cannot
be said to
be in furtherance of the directive principle of Article 39(b) and
cannot receive the benefit of the protective umbrella of Article 31-C.
[90li C-D,G-H]
4.6 It is well settled that it is only when there is ambigutty in the text
of any provision in the enactment that the preamble could be looked into.
Here, there is no ambiguity whatsoever in section 23(1) and (4).
Far from
there being any ambiguity there is express provision in section 23(1) and (4)
iodicating the priorities in the matter of disposal or distribution of excess
vacant land, in face of v.hich, the Preamble cannot control, guide, or diref.'.t the
disposal or distribution in any other manner.
(907 A-CJ
4.7 No rules framed under section 46(1), which en1powers the Central
Government to make rules for carrying out the provisions of the Act, and the
disposal or distribution of excess vacant land can override the express provi-
~sions of section 23. Here, no rules have so far been framed. 907 C-DJ
4 8 No reliance can be made on the "Compendium of Guidt:lines·'
issued by the Central Government in the Ministry of Works and Housing under
the Act either. No doubt, the recommendations made by the 9th Conference
of State Ministers of Housing and Urban Development seek to furnish
improved guidelines but in the process reverse the priorities given in section 23
in the matter of disposal or distribution of excess vacant land. Hence, the
priori ties given in section 23 and as have been snmmarised in para 3 of the
Note must prevail over the priorities indicated in the guidelines contained in
para 4 of the Note and the latter are of no avail.
[907 F-G-H, 908 A-B]
4.9 Section 23 b7 no stretch deals with the objective of Article 39(c)
at all but only deals with the objective underlying the directive principle or
Article 39(b) and its provisions clearly run counter to that objective and as
such the enactment which contains such provisions must forfeit the benefit of
the protective umbrella of Article 31-C.
[908 C-DJ
4.10 The definition of "industry" in section 23 cannot be read down by
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the Court so as to confine the same to industries in public sector or co-opera·
tive sector or the like where benefit to community or public at large would be
the sole consideration, so that allotment of excess vacant land acquired under
the Act to private enterpreneurs for private purposes which runs counter to the
i.iss. l1111M SINGH v. UNION
871
doctrine of eminent da,-nain would bC completely eschewed, beceu1e Parliament
has for the purpose of section (i.e. ror pur.::oses of disposal or distribution of
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such excess vacant land) deliberate1y and in expre;s terms adopted a very wide
definition which includes within its scope not merely trading or manufacturing
activity but also any business or profession in priv.lt~ sector and reading down
the definition would be d.:>ing violence to the Parli1ment
0s intention stated in
·express term•. (908 G-H. 909A]
4.11 Nor can sub-section (1) of section 21 of the Act be read aa
containing merely an enabling provision; the sch-:me of sub-sections (1) to (4)
read together ciearly shows that the disposal of excess vacant land is first to be
done under sub·section (lJ aod disposal under sub·section (4J comes thereafter.·
The opening words of sub·section (4), "'subject to sub-sections (I), (2) and (3)''
cannot be read as constituting a non obstante clause giving an overriding effect
to sub-section (4) nor can sub-section (4• be read as if the opening words
were absent. By indulging in such interpretative acrobatics, the Court cannot
reach the opposit~ result than is ·warranted by the plain text of the provision.
Further, to say that every disposal of excess v:icant la.ad ur.d<:r sub-section llJ
must be for •common good' is to read into that sub-sec~ion s 1mething which is
not there; it amounts to rewriting that sub-section, wh!cl-i cannot be done, the
Preamble noto\ithstanding. Such irlterpretations require the restructuring of the
entire section-a function legitimately falling within the domJin of legislature.
Moreov'er, sub·sections (I), (2J, (3) and (4) of section 23 arc integral parts of
the wh~le scheme dealing with the disoos1l of C'(cess vac1nt land acquired
under the Act and as such cannot be severed from one another. The attempt
to salvage section 23, either wholly or in part, by seeking to free it from the
two vices, namely {i) the adoption of the wide d:finition of "industry ... and
(ii) the priorities m~ntioried therein governing the disposal of excess vacant land
acquired under the Act, must, therefore. fail. [909 C·GJ
S.1 Though the authorisation was for imposition of ceiling on whom
immovable property Parliament deliberately kept out built up properties from
the purview of the Act and the Act seeks to impose ceiling only on vacant land
in urban agglomerations; that being so any restriction on transfer of built up
properties or part thereof (including flats therein) standing on urbtn land
falling within the permissible ceiling area would be outside the purview of the
· Act.
(915 E-FJ
5.2 Such a provision, as in Section 27 or the Act would not be
incidental or ancilliary to the ceiling con!emplated by the Act and would not
fall within the phrase "for matters connected therewith" occurring in the
Preamble and the long title of the Act, for the words •·matters connected
therewith" occurring in the concerned phrase must be coreJated to what
precedes the phrase, namely, •:an Act to provide for ceiling on vacant land in
urban agglomerations. for the ac:'.luistion of such land in excess of the ceiling
limit, to regulate th: construction of building1 on s•tch land". and therefore.
the words •'matters connected therewith'' mu!tt mean matters in retatioil to the
c:cilina: imposed by the Act. A reference to objective! under Article 39(b) (c)
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(for the achievement of which the enactment is allegedly taken in hand) in the
Preamble or long title cannot enlarge the ambit or scope of the Act. Any
restriction imposed on built-up properties falling within the permissible ceilina:
area left with the holder would, therefore, be outside the ambit and sceopc of
tho Act.
[914 0-H, 915AJ
5.3 In the absence of any guidelines for the exercise of the power and
In the absence of any standards having been laid down by the Legislature for
achieving the objectives of preventionof concentration, speculation and profiteering in urban land and urban property, it cannot be said that there three broad
objectives recited in the Preamble could effectively or adequately guide the cxer•
cise of power by the competent a~1thority in the matter of granting or refusing
to grant the permission under section 27 and is bound to produce arbitrary or
discriminatory results. Further, the provision for appeal under section 33 the
Appellate Authority and a revision under section 34 to the State Government
would not be of much avail to preventing arbitrariness in the matter of grant
ing of refusing to grant the permission. Section 27 which does not adequately
control the arbitrary exercise of the power to grant or refuse the permission
sought, is clearly violative of Article 14 of the Constitution and as such the
requirement of permisJion contained therein is ultra vires and unconstitutional,
[915 G-H, 916A-BJ
Per A.P. Sen, J. (concurring)
l.1 Sub-sections (2) and (3) of Section 23 and the opening words subject
to the provisions of sub-sections (I), (2) and (3J" in section 23(4) of the Urban
Land (Ceiling and Regulation) Act, 1976 are ultra vires of the Parliament and
these provisions are not protected under Article 31-B and 31-C of the
Constitution. Sub-section ( 1) of section 27 of the Act is invalid in so for as it
imposes a restriction of transfer of urban property for a period of ten years
frem the commencen1ent of the Act, in relation to vacant land or building thereon, within the ceiling limits. The remaning provisions of the Act, including
sub-section (4) of section 23 being in conformity with PJ.rt IV of the Constitution and Article 31(2) are valid and constitutional. The Act is in iurthtrance
of the directive principles under Article 39(b) and (c) and has the protection of
both Article 31-B and 31-C. [946 B-FJ
1.2 To strike down the whole Act would be against the national interest.
Unless it becomes clear beyond reasonable doubt that the legislation in question
transgresses the limits of the organic law of the Constitution, it must be
allowed to stand as the true expression of the national will. Here, the invalidity
of the provisions of sub .. sections (1) to (3) of section 23 and the opening words
''subject to the provjsions of sub-sections (I), (2) and (3)'' in section 23(4) cannot affect the validity of the Act as a whole, in as much as the said provisions
arc not inextricably bound up with the remanining provisions of the Act.
Further, the legislature would have enacted what survives without enactina the
part that is ultra vires. The Act still remains the Act as it was passed i.e. an
Act for imposition of ceiling on urban land
[935 D-E, 9_.6 A-BJ
Attorney-General for Alberin v. Attorney General for Canada (1947]
AC-505 at 518 quoted with approval.
M!s. BHiM SINGH v. UNION
873
1.3 In determining the effect of law upon the individual's right to
property, the Court must take judicial notice of the fact of vast inequalities in
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the existing distribution of property in the Country. The CourCs concern lic1
not merely with applying the preexisting sets of theories, concepts, principles
and criteria with a view to determining what the law is on a particular point.
The proper approach should be to view the principles with the realisation that
the ultimate foundation of the Constitution finds its ultimate roots in the
authority of the people. And, constitutional questions should not be deterB
mined from a doctrinaire approach, but viewed from experience derived from
the life and experience or actual working of the community, which takes into
account emergence of new facts of the community's social and economic life
aff..:cting property rights of the individual, whenever, among others, the validity
of a Jaw prescribing preference or discrimination is in question under the "equal
protection
90 guarantee.
[936 3-E]
2. The artificial definition of family in section 2 (f) of the Act h valid.
As a result of the artificial definition of "family'' in section 2(f), a Joint Hinds
family is excluded from the purview of section 2 of tha Act, but such a total
exclusion of Joint Hindu Family does not render the Act void and unconstitutional as violative of Article 14. Parliament deliberately excluded a joint family
from the purview of the section as it was beset with difficulties in imposing a
ceiliD$·
The Act aoplies to Hindus, Mohaminedans and Christians alike. By
the exclusion of a Joint Hindu Family the members of a Joint Hindu family,
whether governed by the Milakshara school or the Dayabhaga school were
brought at par with others. Therefore, there is nothing wrong in the
exclusion.
[937 E-H, 9l8A, C-E]
3.1 The contention that the amount fixed by sub-section (6) of
section (I) of the impugned Act is totally arbitrary and illusory since there is
no nexus between the value of the property and the amount fixed and, therefore,
the maximum amount fixed under sub-section (6) makes the Act confiscatory
in total abrogation of the fundamental right guaranteed under Article 31(2)
cannot be accepted.
[9J8 F-A]
3.2 The Constitution (Twenty-fifth Amendemnt) Act, 1971, has placed
the matter of adequacy of compensation beyond the pale of controversy by
substituting the word "amount" for the word "compensation" in Article 31(2)
and made the adequacy of the amount payable for acquisition or requistion
of the property nonjusticiable. When the Court has no power to question the
adequacy of the amount under Article 31{2), it cannot be said, that the amount
determined according to the principles laid down in sub-section (1) subject to
the maximum fixed under sub-section (6) thereof is illusory merely because of
inadequacy. The legislature in its wisdom has laid down the principles and
fixed a ceiling on the maximum amount payable and considers that Rupees
Two Lakhs is a fair and just recompanse. That is a legislative judgment and
the Court has no power to question it. [938 G, 939JFG, 942 E-F,G]
H.H. Kesavananda Bharati v. State of Kera/a [1973] Supp, SCR P.I; R.C.
Cooper v. Union of india [1970] 3 SCR 531; State of Kera/av. Gwalior Rayan
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t19ssj SUPPL. S.C.R
Silk Mauufacturlng Co. [1974] I SCR 671; State of Karnataka v. Ranganatha
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Reddy [1978] l SCR 641 followed.
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4.1 Sub-sections (I), (2) and (3J of section 23 and the opening words
"subject to the provisions of sub-sections (1), (2) and (3)" in sub-section (4) of
section 23 are ultra vires of the Parliament. [935 B-C]
4.2 Apart from the five pillars or the Constitution, namely, Sovereign
Demoeretic Republic, Equality of status and opportU.nity, Secularism, Citizen's
right to worship and the Ruic of law-, the Goncept of social and economic
justice-to build a welfare State-, is equally a part of the basic structure or
the fundation upon which the Constitution rests. The provisions of sections
23(1). (2) and (3) and the opening words in sections 23(4) are the ver)' antithesis
of the idea of a welfare State based on social and econornic justi::e. Since
these provisions permit acquistion of property under the Act for private
purpo-:;es, they o~end against the Directive Principles of State Policy of
Article 39 {b) and (c) and are 1lso violative of Article 31(2J and tll·::refore, not
protected under Article 31-B.
['>34 G-H, 935 A-BJ
Indira Nehru Gandhi v. Raj Narain, {1976} 2 SCH. 347 rehed on
H.H. Kesai·ananda Bharyti v. State of Kera/a [I 973J Supp. SCR p.I
explained.
4.3 It is extremely doubtful whether compulsory acquistion of all the
excess vacant land in all urban agglomeration throughout the country for a
bold, indefinite and unspecified objective like' industry", simliciter would be a
valid exercise of the power of eminent domain.
[928H·929A]
4.4 Although the impugned Act is enacted with a laudable object to
subserve the common good, in furtherance of the Directive Principles of State
Policy under Article 39(b) and (c), in terms of sub-sections (I), (2J and (3) of
section 23 it would be p:rmissible to acquire vacant land in urban agglomerations and divert it for private purpo5es, the whole emphasis being on industrialisation. The opening words in section 23 (4) "subji!ct to the provisions of subsections (I), {2) and (3)'' make the provisions of seation 23(4J subservient to
section 23(1), which maket it lawful for tho allottee that is the industrialist to
hold such land in excess of the colling limit.
[928 D-F]
4.5 The provisions of sub-sections (1), (2) and (3) of •ection 23 cannot
be read in the light of the Preamble of the Act or the Directive Principles
under Article 39(b) and (c).
[929 B·CJ
When the language of the section is clear and explicit, its meaning cannot
be contrOlled by the Preamble. It is not for the Court to restructute the
section. The restructuring of a statute is obviously a legislative function.