# P. D. Shamdasani v. Central Bank of India Ltd. Patanjali Sastri C. }

- **Citation:** [1952] 1 S.C.R. 391
- **Court:** Supreme Court of India
- **Decided:** 1951-03-02
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-d-shamdasani-v-central-bank-of-india-ltd-patanjali-sastri-c-23
- **Pages:** 5

## Headnote

...
-
S.C.R.
SUPREME COURT REPORTS
391
P. D. SHAMDASANI
v.
CENTRAL BANK OF INDIA LTD.
f P.\TANJALI SAS'I'RI C. J., MEHR CHAh"'D MAHAJAN,
MuKHERJEA, DAs
and CHANDRASEKHARA
A1YAR
JJ.J
Co11stiiut1o11 of India, Arts. 19(1) (f), 31(1), 32-lnfringement of
j~roperty rights by private individttals-Application ttnder An. 32
-Maintainability--Scopc of Arts. 19(1) (f) and 31(1).
Article 19(1) (£) of the Constitution
is clearly intended to.
protect
the freedom to acquire,
hold and dispose of property
against State action other than in the legitimate exercise of its
power to regulntc private rights in the public interest.
Similarly,
article 31(1) provides a safeguard against dcpriYation of property
by the State except by procedure established by law.
Violation
o{ rights of property by private individuals
is not within the
purview of those articles.
A person whose rights of property are infringed by a private
individual must therefore seek his
remedy under the ordinary
law and not by way of an application under article 32.
ORIGINAL JuRISDicTION : Petition No. 328 of
1951.
Petition under article 32 of the
Constitution for issue
of wr.its in the
nature of certiorari, prohibition and
mandamus.
The facts appear in the judgment.
The. petitioner in person.
C. K. Daplitary,
Solicitor-General of India, (J. B.
,
Dadachanji. with him) for the respondent.
1951.
December
21.
The
Judgment of the Court
was delivered by
PAT.\NJALI SAsTRI C. J.-Thi,
i5 a
petition under
article 32 of the Constitution for the enforcement of
the petitioner's fundamental rights under article 19(1)
(f) and article 31 ( l) alleged to h;ive
been violated by
the Central Bank of India Ltd., a company incorporated under the Indian Companies Act, 1882, and having
its registered office at Bombay, (hereinafter referred to
as "the Bank").
It appears that the petitioner held five shares in the
share capital of the Bank which sold those shares to a
195)
D!!c. 21.
1951
P. D. Shamdasani
v.
Central Bank of
India Ltd.
Patanjali
Sastri C. }.
392
SUPREME COURT REPORTS
[1952]
third party in purported exercise of its right of lien for
recovery of a debt due to it from the petitioner, and
the transfer was registered in the books of the Bank in
the year
1937.
The petitioner thereupon instituted a
series of proceedings in the High Court at Bombay on.
its original and appellate jurisdiction challenging the
validity of
the said sale and transfer.
The latest of
these proceedings was a suit filed against the Bank in
1951 wherein the
plaint was rejected on
2nd March,
1951, under Order 7, Rule 11 (d), of the Code of Civil
Procedure as barred by limitation.
The petitioner now
prays that all the adverse orders made in the previous
proceedings be quashed and the said
High Court be
directed to have "the above suit set down to be heard
as undefended and pronounce judgment against the respondent or to make such orders
as it
thinks fit in
relation to the said suit".
It may be mentioned here
that though the aforesaid order rejecting the petitioner's
plaint was appealable, the petitioner did not prefer an
appeal on the
somewhat extraordinary
ground that
"the appeal if filed could not be heard by the Judges
of the said Court as all of them were disqualified from
hearing such appeal"
either because of their
interest
in the Bank or because of their prejudice against him.
vre are
of opinion that
the
petitioner has misconceived his remedy and the petition must fail on a
preliminary ground.
Neither
article 19 (1) (f) nor
article 31 (1) on its true construction was intended to
prevent wrongful individual acts or to provicle protection against merely private conduct. Article
19 deals
with the "right to freedom" and by clause (1) assures
to the citizen
certain fundamental freedoms including
the freedom "to acquire, hold and dispose of property"
subject to the power of the State to impose restrictions
on the exercise of such rights to the extent and on the
grounds mentioned in clauses (2) to ( 6). The language
and structure

## Text

...
-
S.C.R.
SUPREME COURT REPORTS
391
P. D. SHAMDASANI
v.
CENTRAL BANK OF INDIA LTD.
f P.\TANJALI SAS'I'RI C. J., MEHR CHAh"'D MAHAJAN,
MuKHERJEA, DAs
and CHANDRASEKHARA
A1YAR
JJ.J
Co11stiiut1o11 of India, Arts. 19(1) (f), 31(1), 32-lnfringement of
j~roperty rights by private individttals-Application ttnder An. 32
-Maintainability--Scopc of Arts. 19(1) (f) and 31(1).
Article 19(1) (£) of the Constitution
is clearly intended to.
protect
the freedom to acquire,
hold and dispose of property
against State action other than in the legitimate exercise of its
power to regulntc private rights in the public interest.
Similarly,
article 31(1) provides a safeguard against dcpriYation of property
by the State except by procedure established by law.
Violation
o{ rights of property by private individuals
is not within the
purview of those articles.
A person whose rights of property are infringed by a private
individual must therefore seek his
remedy under the ordinary
law and not by way of an application under article 32.
ORIGINAL JuRISDicTION : Petition No. 328 of
1951.
Petition under article 32 of the
Constitution for issue
of wr.its in the
nature of certiorari, prohibition and
mandamus.
The facts appear in the judgment.
The. petitioner in person.
C. K. Daplitary,
Solicitor-General of India, (J. B.
,
Dadachanji. with him) for the respondent.
1951.
December
21.
The
Judgment of the Court
was delivered by
PAT.\NJALI SAsTRI C. J.-Thi,
i5 a
petition under
article 32 of the Constitution for the enforcement of
the petitioner's fundamental rights under article 19(1)
(f) and article 31 ( l) alleged to h;ive
been violated by
the Central Bank of India Ltd., a company incorporated under the Indian Companies Act, 1882, and having
its registered office at Bombay, (hereinafter referred to
as "the Bank").
It appears that the petitioner held five shares in the
share capital of the Bank which sold those shares to a
195)
D!!c. 21.
1951
P. D. Shamdasani
v.
Central Bank of
India Ltd.
Patanjali
Sastri C. }.
392
SUPREME COURT REPORTS
[1952]
third party in purported exercise of its right of lien for
recovery of a debt due to it from the petitioner, and
the transfer was registered in the books of the Bank in
the year
1937.
The petitioner thereupon instituted a
series of proceedings in the High Court at Bombay on.
its original and appellate jurisdiction challenging the
validity of
the said sale and transfer.
The latest of
these proceedings was a suit filed against the Bank in
1951 wherein the
plaint was rejected on
2nd March,
1951, under Order 7, Rule 11 (d), of the Code of Civil
Procedure as barred by limitation.
The petitioner now
prays that all the adverse orders made in the previous
proceedings be quashed and the said
High Court be
directed to have "the above suit set down to be heard
as undefended and pronounce judgment against the respondent or to make such orders
as it
thinks fit in
relation to the said suit".
It may be mentioned here
that though the aforesaid order rejecting the petitioner's
plaint was appealable, the petitioner did not prefer an
appeal on the
somewhat extraordinary
ground that
"the appeal if filed could not be heard by the Judges
of the said Court as all of them were disqualified from
hearing such appeal"
either because of their
interest
in the Bank or because of their prejudice against him.
vre are
of opinion that
the
petitioner has misconceived his remedy and the petition must fail on a
preliminary ground.
Neither
article 19 (1) (f) nor
article 31 (1) on its true construction was intended to
prevent wrongful individual acts or to provicle protection against merely private conduct. Article
19 deals
with the "right to freedom" and by clause (1) assures
to the citizen
certain fundamental freedoms including
the freedom "to acquire, hold and dispose of property"
subject to the power of the State to impose restrictions
on the exercise of such rights to the extent and on the
grounds mentioned in clauses (2) to ( 6). The language
and structure of article 19 and ir.. setting in Part III
of the Constitution
clearly show that the article was
intended-to protect those freedoms against State action
other than in the
legitimate
exercise of
its power
to regulate private
rights
in
the
public
interest.
" .
-
' >
I~
,/
~
S.C.R ..
SUPREME COURT REPORTS
393
Violation of rights of property by
individuals ts not
within the purview of the article.
The position is no better under article 31(1). The
petitioner has urged that clause (1) should be construed
apart from and independently of the rest of the article
and, if so construed, its language is wide enough
to
cover infringements of rights
of property
by private
individuals.
He laid emphasis on the omission of
the
word "State" in clause ( 1) while it was used in clause
(2) of the same article as well as in many other articles
in Part III. Referring to entry
No. 33 of the Union
List, entry
No.
36 of
the
State
List
and entry
No. 42 of the Concurrent List of the Seventh Schedule
to the
Constitution,
he also argued that, while these
entries read
with article 246
empowered
Parliament
and the
State
Legislatures
to make
laws regarding
acquisition or
requisitioning of property for the purposes of the Union or the State as the case may be, no
power was conferred to make laws regarding "deprivation of property" by the
State, so that the "deprivation" contemplated in clause (1) could only be deprivation by individuals.
Sub-section (1) of section
299 of
the Government of
India Act, 1935, corresponding to
clause (1) of article 31 was, it was
pointed out, omitted
in the draft article 19 (later numbered
as article
31)
which retained in a modified form only the
provision
contained in sub-section (2) of that section relating to
compulsory acquisition of property for public purposes.
But, clause (1) was subsequently restored and
article
31 was enacted in its present form as recommended in
Drafting Committee's Report and this, it was claimed,
showed that clause (1) was
intended
to operate as a
distinct provision apart from
clause (2). We see no
force in any of these arguments.
In support of the argument that clause (1) should be
construed in isolation
from the rest of the article, the
petitioner relied on certain observations of our learned
brother Das in Chiranjit Lal v. The Union of India(1),
where the view w~s expressed that clause (1) enunciated
the general principle that no person should be deprived
Y'
C') [19SOJ s:c.R. 869.
1951
P. D. Sltamdasani
v.
Central Bank of
India Ltd.
Patanjali
Sastri 9. !~
1951
P. D. Shamdasani
v.
-Central Bank of
India Ltd.
Patanjali
Sastri C. f.
394
SUPREME COURT REPORTS
[1952]
of his property except by authority of law and laid
down no condition for payment of compensation, while
clause (2) dealt with deprivation of
property brought
.about by acquisition
or taking
possession
of it and
required payment of
compensation.
In other
words,
deprivation
referred
to in
clause (1)
must
be
taken
to
cover
deprivation
otherwise
than
by
acqu1S1t1on or requisitioning
of
property dealt
with
in
clause
(2).
We
consider
it
unnecessary
for the purpose
of the · p~esent petition to go
into
that question.
Even
assummg
that clause
(l) has
to be read
and construed apart from clause (2), it is
clear that it is a declaration of the fundamental right
of private property in the same negative form in which
article 21 decli'.res the fundamental right to life
and
liberty. There is no express
reference to the State in
article 21.
But could it be suggested on that account
that that article was intended to
afford protection to
life and personal
liberty against violation by
private
individuals? The words
"except by
procedure
established by law" plainly
exclude
such
a
suggestion.
Similarly, the words
"save by
authority of law" in
clause (1) of article 31 show that it is a prohibition of
unauthorised governmental action against private property, as there can be no question of one private individual being authorised
by law
to deprive another
of his property. .
The argument based on the entries
in the Lists is
fallacious. It is not
correct
to suggest
that,
merely
because there is no
entry in the Lists of the Seventh
Schedule relating to "deprivation of property"
as such,
it is not within the competence of the legislatures in
the country to enact a law authorising
deprivation of
property. Such a law could be made,
for
instance,
under entry No. 1 of List II, entry No. 1 of List II or
entry No. 1 of List III. Article 31(1) itself contemplates a law being
passed authorising
deprivation of
the properties, and it is futile to deny the
existence of
the requisite legislative power.
.
.
Nor does the legislative
history of the article lend
any support to the petitioner's contention.
Section 299
4'
..
S.C.R.
SUPREME COURT REPORTS
395
1951
P. D. Sham·
dasani
v.
(I) of the Government of India
Act, 1935, was never
interpreted as
prohibiting deprivation of property by
private individuals.
Its
restoration,
therefore,
in
the
same form in article 31, after omission in the original
draft article 19, could lead
to no inference in support
of the petitioner's contention, which
indeed proceeds
on the fundamental misconception that article 19(1) (£)
and article 31(1),
which are great constitutional safe.
guards Vagainst
State aggression
on private property,
are directed
against infringements
by
private individuals for which remedies should be sought in
the
ordinary law.
Central Bank of
India Ltd.
· In this view 1t 1s unnecessary
to deal with certain
other objections to the maintainability of
the petition
raised by the Solicitor-General on . behalf of the
Bank.
The petition is dismissed. We make no order as to costs.
Petition dismissed.
Agent for the respondent : Rajinder Narain,
NARANJAN SINGH NATHAWAN
v.
THE ST ATE OF PUNJAB
(and 13 other petitions).
lPATANJALI
SAsTRr C. J., MEHR CHAND MAHAJAN,
MuKHERJEA, DAs and CHANDRASEKHARA ArYAR JJ.]
Preventive Detention-Ordt;r of detention challenged as illegalFresh order superseding previous
order-Validity-Question of bad
faith-Habeas corpus proceeding-Legality of detention
must be
determined as at date of return.
In the absence of bad faith the detaining authority can super-_
sedc an earlier order of detention which has been
challenged as
defective
on
merely formal
grounds
and make a fresh
order
wherever possible which
is free from
defects and duly complies
with the . requirements of the law in that behalf. The question
of bad faith, if raised, must be decided with reference to the
circumstances of each case.
In habeas corpus proceedings the Court is
to have regard to
the legality or otherwise of the detention at the time of the
return and not with reference to the date of the institution of
the proceedings.
Patanjali
Sastri C. /.
1952
Jan. 25.