# S, SHANKARA RAO BADAMI & ORS v. STATE OF MYSORE & ANR

- **Citation:** [1969] 3 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1968-12-04
- **Case number:** Writ Petitions Nos. 188 and 189 of 1968
- **Bench:** Hidayatullah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-shankara-rao-badami-ors-v-state-of-mysore-anr-4854
- **Pages:** 13

## Headnote

J. C. SHAH,
V. RilμsWAMI,
G. K. MITTER AND A. N, GROVER, JJ.)
Constltllllon of India, 1950, Arts. 31, 31A, Entry 33, List I,
Entry
36, Ust JI and Entry 42, Lisi 111 of 1th. Scheduk-Mysore (Personal and
Mucellaneous) lnams Abolition
Act (Mys. I of 1955),
constitutional
validity of-If can be challenged on the ground of violaticm of Art, 31(2)-
lf condition regarding public
purpose and
payment of compensation
could be Implied In the word 'acquisition' in Entries.
By virtue of a notification under s. 1 ( 4) of the Mysore (Personal and
Miscellaneous) Inams Abolition Act, 1954, the Inarn villages of the petitioners vested in the State of Mysore.
The petitioner challenged the
validity of the Act on two grounds, namely : ( I ) that the compensation
provided by the Act was not the market value of the property at the
time of acquisition and since it did not provide for an adequate compensalton as a 'just equivalent' there was a violation of Art. 31 (2); and (2)
that the impugned Act was beyond the legislative competence of the
Mysore Lea1slature under Entry 36 of List II and Entry 42 of List W
to the 7th Schedule as the Entries stood before the 7th Amendment of
the Cqnstitution, becaU.., ( i) the existence of public purpose and the
obligation to pay compensation are necessary concomitants of compulsory
acquisitioa of property, and so, the term 'acquisition' must be construed
u importina by necessary implication the two conditions of public pur·
pose and payment of ·adequate compensation, and (ii) the words 'subject
to the provisions of Entry 42, List III' in Entry 36 of List II rein!orce
the argument. that a law with respeet to· acquisition of property made
under Entry 36 shoWd be exercised subject to· the two-fold restriction as
to public purpose and payment of compensation both of which are referred
to in Entry 42; List Ill.
HELD : ( 1 }(a) The impugned Act provides for the acquisition of
ri&ht• of inarndars in inam estates and it. is intended to abolish all intermediate holders and to establish direct relationship between the Government and occupants of land in· lnam villages in respect of which noti·
ftcations had been issued. The legislation was undertaken as a part of
aararia~ reform which the Mysore State Legislature proposed to brine
about m. t!I! State. TherefOre, · the impugned Act is a law providing for
th• acqu1S1tion by the State of any .estate or of any rights therein or for
the extinguishment or modiftcation of such rights as contemplated
by
Art. 31A and hence, the impugned Act is protected from attack in any
court on the ground that it contrl!\·enes Art. 31 (2). (9 G-H; 10 A-Bl
(b) The ratio of the two decisions ii) State ol Madras v. Namasivaya
MudalilJI', [1964] 6 S.C.R. 936 and Vajravelu Mudaliar v. Sp!, Dy. Collector, 11.965] 1 S.C.R. 614, in which it was held that the principle Jf Bela
Baner1ee:s. ~ase, [1954] S:C.R. 558 t)iat the _Legislature in making a law
of acqlJ!Siti~n must provide for a 'iust eqmvalent' as compensation, has
no appl1eation to the present case, because, those two cases related to
legislation not dealing with agrarian reform and the protection of Art.
3 lA was not available to either of the statutes challenged in those cases.
[10 F; 11 A-Bl
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[196913 S.C.R.
(2) (i) Under the .common law of eminent domain the State cannot
take the property of its subject unI .. s such property is
required for a
public purpose and without compensating the owner for its loss.
But,
when these limitations are expressly provided for in Art. 31(2) and it
is funher enacted that no law. shall be made which takes away or abridges
those saf~guards, and any such law, if made, shall be void. there can
be no room for implication, and the words 'acquisition of property'
in
Entry 36 must be understood in their natural sense of the mere act of
acquiring property without importing
into the phrase an obligation
to
pay compensation or a condition as to the, existc:!nce of a public purpose.
The entries i

## Text

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S, SHANKARA RAO BADAMI & ORS.
v.
STATE OF MYSORE & ANR.
December 4, 1968
[M, HIDAYATULLAH, C.J.,
J. C. SHAH,
V. RilμsWAMI,
G. K. MITTER AND A. N, GROVER, JJ.)
Constltllllon of India, 1950, Arts. 31, 31A, Entry 33, List I,
Entry
36, Ust JI and Entry 42, Lisi 111 of 1th. Scheduk-Mysore (Personal and
Mucellaneous) lnams Abolition
Act (Mys. I of 1955),
constitutional
validity of-If can be challenged on the ground of violaticm of Art, 31(2)-
lf condition regarding public
purpose and
payment of compensation
could be Implied In the word 'acquisition' in Entries.
By virtue of a notification under s. 1 ( 4) of the Mysore (Personal and
Miscellaneous) Inams Abolition Act, 1954, the Inarn villages of the petitioners vested in the State of Mysore.
The petitioner challenged the
validity of the Act on two grounds, namely : ( I ) that the compensation
provided by the Act was not the market value of the property at the
time of acquisition and since it did not provide for an adequate compensalton as a 'just equivalent' there was a violation of Art. 31 (2); and (2)
that the impugned Act was beyond the legislative competence of the
Mysore Lea1slature under Entry 36 of List II and Entry 42 of List W
to the 7th Schedule as the Entries stood before the 7th Amendment of
the Cqnstitution, becaU.., ( i) the existence of public purpose and the
obligation to pay compensation are necessary concomitants of compulsory
acquisitioa of property, and so, the term 'acquisition' must be construed
u importina by necessary implication the two conditions of public pur·
pose and payment of ·adequate compensation, and (ii) the words 'subject
to the provisions of Entry 42, List III' in Entry 36 of List II rein!orce
the argument. that a law with respeet to· acquisition of property made
under Entry 36 shoWd be exercised subject to· the two-fold restriction as
to public purpose and payment of compensation both of which are referred
to in Entry 42; List Ill.
HELD : ( 1 }(a) The impugned Act provides for the acquisition of
ri&ht• of inarndars in inam estates and it. is intended to abolish all intermediate holders and to establish direct relationship between the Government and occupants of land in· lnam villages in respect of which noti·
ftcations had been issued. The legislation was undertaken as a part of
aararia~ reform which the Mysore State Legislature proposed to brine
about m. t!I! State. TherefOre, · the impugned Act is a law providing for
th• acqu1S1tion by the State of any .estate or of any rights therein or for
the extinguishment or modiftcation of such rights as contemplated
by
Art. 31A and hence, the impugned Act is protected from attack in any
court on the ground that it contrl!\·enes Art. 31 (2). (9 G-H; 10 A-Bl
(b) The ratio of the two decisions ii) State ol Madras v. Namasivaya
MudalilJI', [1964] 6 S.C.R. 936 and Vajravelu Mudaliar v. Sp!, Dy. Collector, 11.965] 1 S.C.R. 614, in which it was held that the principle Jf Bela
Baner1ee:s. ~ase, [1954] S:C.R. 558 t)iat the _Legislature in making a law
of acqlJ!Siti~n must provide for a 'iust eqmvalent' as compensation, has
no appl1eation to the present case, because, those two cases related to
legislation not dealing with agrarian reform and the protection of Art.
3 lA was not available to either of the statutes challenged in those cases.
[10 F; 11 A-Bl
2
SUPREM,E COURT REPORTS
'
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[196913 S.C.R.
(2) (i) Under the .common law of eminent domain the State cannot
take the property of its subject unI .. s such property is
required for a
public purpose and without compensating the owner for its loss.
But,
when these limitations are expressly provided for in Art. 31(2) and it
is funher enacted that no law. shall be made which takes away or abridges
those saf~guards, and any such law, if made, shall be void. there can
be no room for implication, and the words 'acquisition of property'
in
Entry 36 must be understood in their natural sense of the mere act of
acquiring property without importing
into the phrase an obligation
to
pay compensation or a condition as to the, existc:!nce of a public purpose.
The entries in the Lists of the VU Schedule are designed to define and
delimit the respective ·areas of legislative competence of the Union and
State Legislatures and the principle of the maxim expressum facit cessare
tacitu1n, makes it inappropriate to treat the obligation to pay compen·
sation as implicit in Entry 33 of List I or Entry 36 of List II when,
it is separately and expressly provided for in Art. 31(2). [12 C-F]
(3) The words 'subject to the provision of Entry 42 of List Ill' mean
no more than that any law made under Entry 36 by a State Legislature
can be displaced or overriden by the Union. Legislature making a law
under Entry 42 of List II.
If the restrictive
conditions as to public
purpose and payment of compensation are to be derived from these words,
their absence in En.try 33 of List I leads to the unreasonable inference
that Parliament can make law authorising acquisition of property without
a public purpose and without a provision for compensation. The true
inference is that the power to make a law, belonging both to Parliament
and State Legislatures, can be exercised subject to the two restrictions n~t
by reason of anything contained in the legislative entries but by reason
the positive provisions in Art. 31(2). But as legj§lation falling within
Art. 3 IA cannot be called in question in a court for
non-compliance
with those provisions in Art. 31(2) such legislation cannot be struck down
as unconstitutional and void. [13 B-E]
ORIGINAL JURISDICTION: Writ Petitions Nos. 188 and 189
of 1968.
Petiti~ under Art. 32 of the Constitution of India for
enforcement of the fundamental rights.
V. Krishnamurti, S. K. Dholakia and J. B. Dadachanji, for
the petitioners (in both the petitions) .
Niren De, Attorney-General, S. S: Shukla and S. · P. Nayar,
for the respondents ( iip. both the petitions) .
The Judgment of the Court was delivered by
Ramaswami, J.
In these writ petitions under Art. 32 of the
Constitution a common question of law arises for determination,
viz., whether the Mysore (Personal and Miscellaneous)
Inams
Abolition Act, 1954 (Mysore Aci 1 of 1955) is constitutionally
vlilid.
The villages of Debur and Kappasoge in Mysore
District
were Inam grants made to Bakshi Bhima Rao, the ancestor of
the petitioners. The inam grants were made by the Ruler of
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SHANKARA RAO v. MYSORE (Ramaswami, J.)
3
Mysore State in recognition of the military ·services of Bakshi
Bhima Rao. The inam included not only the income from the
lands but from every kind of revenue including excise and the
right to treat all lands newly brought into cultivation as
the
persona! property of the Inmndars. The Mysore
(Personal and
Misce!laneous) Inams Abolition Act, 1954
(Mysore Act 1 of
1955) (hereinafter called the impugned Act) was passed by the
Mysore Legislature and received the assent of the President on
the 18th March, 1955 aind'published in the Mysore Gazette on
19th March, 1955. The Act was
subsequently
amended by
Mysore Act 7 of 1956 which received the assent of the President
on 28th June, 1956 and which was published in the Mysore
Gazette on 5th July, 1956. By virtue of a notification dated 2nd
October, 1956 under section 1 clause (iv) of the impugned Act,
the two inam villages vested in the State of Mysore under section
3 of the impugned Act. Compensation of the various items was
the subject matter of dispute between t!Jii petitioners and the
Special Deputy Commissioner who was
appointed
to
assess
compensation under the machinery of the Act.
Awards of
compensation were made under sections 17 and 20 of the
impugned Act by the Special Deputy Commissioner. The peti·
tioners preferred Miscellaneous Appeals Nos. 89 and 130 in the
High Court of Mysore under section 31 of the impugned Act.
These appeals were heard and decided by the Mysore High Court
by a consolidated order of the 27th October, 1960. Against that
decision two appeals were brought to this Court in Civil Appeals
196 and 197 of 1965. These
appeals were
heard on 25th
October, 1967. It was then pointed out by the Court that the
constitutional validity of the provisions of the
Act cannot be
challenged in the statutory appeals in view of the decision of this
Court in K. S. Venkataraman & Co. v. State of Madras. (1) The
petitioners thereafter filed these writ petitions challenging
the
constitutional validity of the Act.
The main contention raised by the petitioners is
that the
impugned Act docs not provide for adequate compensation for
the property acquired, that the compensation provided for was
not a "just equivalent", in other words, the market value of the
property at the time of acquisition and there was hence a viola·
ti on <>f the guarantee under Art. 31 ( 2) of the Constitution. The
impugned A~t is entitled as an Act to provide for the "abolition
of personal mams and certain miscellaneous inams in the State
of Mysore except Bellary District". The preamble states that it is
expedient. in the public interest to provide for the abolition of
personal mams and certain miscellaneous
inams in the State
of Mysore
except
Bellary District and
for
other matters
connected therewith. Section 1 ( 4) enacts that this section and
(I) [19661 2 S.C.R. 229.
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SUPREME COURT REPORTS
(1969] 3 S.C.ll.
sections 2, 27, 3 8 and 40 shall come into force in respect of any
inam village, or minor inam in iwn unalienated village, on such
date as the Government may by notification appoint. Section 3
provides for the consequences of the vesting of an inam in the
State and states as follows :-
" ( 1) When the notification ·under sub-section ( 4)
of section 1 'in respect of any inam has beqn published
in the Mysore Gazette, then notwithstanding anything
contained in any contract, grallll or other instrument
or in any other law for the time being in force, with
effect on and from the date of vesting,
and save
as
otherwise expressly provided in this Act, the following
consequences shall ensue, namely :-
(a) the provisions of the Land
Revenue
Code
relating to alienated holdings shall, except as respects
minor inams to which this Act is not applicable, be
deemed to have been repealed in their application to
the inam; and the provisions of the Land Revenue Code
and all other enactments
applicable to unalienated
villages slrall apply to the said inam;
(b) all rights, title and interest,
vesting in
the
inamdar including those in all communal lands, cultivated Jands uncultivated lands, whether assessed or not,
waste lands, pasture lands, forests, mines a;nd minerals,
quarries, rivers and streams, tanks and irrigation works,
fisheries an\! ferries, shall case and be vested absolutely
in the State of Mysore, free from all encumbrances;
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Section 9 enacts :
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"Lands and buildings to vest in
the
inamdar :
( 1 ) Every inamdar shall, with effect on and from the
date of vesting, be entitled to be registered as
an
occupant of all lands other than-
(i) communal lands, waste
lands, gomal lands,
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forest lands, tank beds, mines, quarries, rivers, streams,
tanks and irrigation works;
(ii) lands m respect of which any person is entitled
to be registered under sections 4, 5, 6, 7 or 8; and
(iii) lands upon which have been erected buildings owned by any person
other than the inamdar.
(2) Every building situated within the limits of
the inam which was owned immediately before the
SHANKARA RAO v. MYSORE (Ramaswaml, J.)
5
A
date of vesting by the inamdar shall, with effect on and
from such date, vest in the inamdar.
Exp/a111Jtion : Ln this section 'inamdar' means an
inamdar other than a holder of a mi,oor inam referred
to in section 7".
B
Section 17 provides as follows :-
"Amount of compensation payable : ( 1) Save as
otherwise provided in section 26, the total compensation payable in respect of any inam shall be the aggregate of the sums specified below :
c
(i) a sum equal to twenty times the amoW}t of land
..
revenue payable in. respect of land held by
kadim
tenants and permanent tenants entitled to be registered
under section 4 and section 5, respectively.
Explanation : Where the land revenue is paid in
kind, the amount of land revenue for purposes of this
D
clause shall be determined on the basis of the market
value prevailing on the 1st day of January, 1954, of
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the crop or crops paid as land revenue;
(ii) a sum equal to seventyfive per centum of the
amount payable by the quasi-permanent tonants of the
inamdar under sub-section (2) of section 6 in respect
E
of lands of which they are entitled to be registered as
occupants under sub-section (1 ) of the said section 6;
(iii) a sum calculated at the rates specified below
in respect of lands referred to ~ clause (iii) of subsecti(lll ( 1 ) of section 7 or section 9;
F
(a) seventyfive rupees per acre within the municipal limits of the Cities of Bangalore,
Mysore
and
Davangere and within an area of one mile from such
limits;
(b) forty rupees per acre
within
the municipal
limits of the towns of Kotar,
Tumkur,
Chitaldrug,
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Shimoga,
Bhadravati,
Chickmagalur,
Hassan
and
Mandya and the limits of the Kolar Gold Fields Sanitary Board Arer, and within an area of one mile from
such limits; and
( c) twenty rupees per acre in all other areas;
H
(iv) a sum equal to twenty times the jodi, quitrent or other amo11I1t, if any, of like nature; derived by
the inamdar concerned from persons holding
minor
inams under such inamdar; and
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SUPREME COURT REPORTS
[1969] 3 s.c.R.
(v) a sum equal to ten times the average net
annual income derived
~ the
i&Damdar
during
a
period of five years immediately preceedin~ the date of
vesting, from lands other than lands re erred to
in
dause (Hi) and lands in respect of which any person
is entitled to be registered under sections 4, 5, 6, 7, 8
and 9;
Provided that
(a) the income from sandalwood or any other
forest produce shall not be included in the
annual
income from forests
unless the
right thereto was
expressly conferred on the inamdar by a competent
authority;
(b) the. income from royal~ on minerals or from
mining lease shall not be inclu ed in the annual income unless the right to such minerals or mines was
expressly ~erred on the inamdar by a competent
authori~ and such right was recognised under section
38 of
e Land Revenue Code;
( c) .the income from ferries shall not be included
unless the right to such ferries was expressly granted
to the inamdar by a competent authority.
On behalf of the petitioners learned
co~el stressed the
argument that the
inamdar of the estate
was
completely
deprived of any sort of compensation in regard to the category
of lands mentioned in section 9 (1 ) ( i). It was said that iin regard
to the permanent tenants, the compensation was fixed at 20 times
of the land revenue, but in the case of quasi-permanent tQlllllltS
the compensation is 75 per cent of the value payable by the
quasi-permanent tenants under section 6(2). That is to say, the
Government recovers a premium ~er section 6(2) at 40 times
the land revenue and hands over 75 per cent as compensation
to the holder of the inam estate. It was contended that compensation was not fixed on the basis of the market value Q!l the date
"Of acquisition and that the guarantee embodied in Article 31 (2)
-of the Constitution has been violated.
In support of this argument reference
was made to
the
decision of this Court in The State of West Bengal v. Mrs. Bela
Banerjee & Ors.,(') in which this Court observed that while
under Entry 42 List III the Legislature was given discretionary
:(I) [1954) S.C.R. 558.
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SHANKARA RAO v. MYSORE (Ramaswami, J.)
7
power to lay down the principles which should govern determination of the amount to be given to the owner of the property
appropriated, Article 31 (2) of the Constitution required that
such principles must ensure what is determiru:d as payable must
be 'compensation', i.e. a just equivalent of what the owner has
been deprived. Whether such principles take into account
all
the elements which make up the true value of the
property
appropriated and exclude matters which are to be neglected is a
justiciable issue to be adjudicated by the Court. The Court, therefore, held in that case that the West Bengal Land Development
and Planning Act, 1948 which was enacted primarily for the
settlement of immigrants who had migrated into West
Bengal
due to communal disturbances in East Bengal and which by
section 8 provided that the compensation to be
awarded for
compulsory acquisition to the owner of the land was not to
exceed ·the market value of the land on 31st December, 1946
was ultra vires of the Constitution and void under Article 31 (2)
of the Constitution. At page 564 of the report the Court observed as follows:-
"Turning now to the provisions relating to compensation under the impugned Act, it will be seen that the
latter part of the proviso to section 8 limits the amount
of compensation so as not to exceed the market value
of the land on December 31, 1946, no matter when
the land is acquired. Considering that the impugned
Act is a permanent enactment and
lands
may be
acquired under it many years after it came into force,
the fixing of the market value on December 31, 1946
as the ceiling on the land at the time of the acquisition
is arbitrary and cannot be regarded as due compliance
in letter and spirit with the
requirement of Article
31 (2)".
In our opinion, this principle
cannot
apply in testing
the
validity of the impugned Act in the present case. Article 31 (2)
before its amendment by the Constitution
(4th Amendment)
Act reads as follows :-
"(2) No property, movable or immovable, including any interest in, or in any company, owning,
any
commercial or industrial undertaking, shall be taken
possession of or acquired for public purposes
under
any law authorising the taking of such possession or
such acquisition,
unless the law
provides
for compensation for the property taken
possession of or
acquired and either fixes the amount of the compensation, or specifies the principles on which, and
the
manner in which, the compensation is
to be determined and given".
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SUPREME COURT REPORTS'
[1969] 3 S;C.ll.
But Article
31 A was added in the ·Constitution
with retrospective effect by section 4 of the Constitution (1st Amendment)
Act, 1951 which provides as follows :-
"4. After Article 31
of the Constitution,
the
following
article
shall
be
inserted, and shall be
deemed always to have been inserted, namely :
31 A. Saviag of laws providing for
acquisition of
estates, etc.-( 1) Notwithstanding
anything in
the
foregoing provisions of this Part, no law providing
for the acquisition by the State of any estate or of any
rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on
the ground that it is inconsistent with or takes away
or abridges any of the rights
conferred by, any provisions of this Part :
Provided that where such law is a law made by the
Legislature of a State, the provisions of this
article
shall not apply thereto unless such law, having been
reserved for the consideration of the
President, has
received hiS assent.
( 2) In this article-
(a) the expression 'esiate' shall, in relation to
any local area, have the same meaning as that expression or its local equivalent has in
the existing Jaw
relating to land tenures in force in that area, and shall
also include any jagir, inam or maufi or other similar
grant;
( b) the expression
'rights'
in
relation to
an
estate, shall include any rights vesting in a proprietor,
sub-proprietor,
under-proprietor,
tenure-holder
or
other intermediary and any rights or privileges in res·
pect of land revenue".
Article 31 A was amended again by section 3 of the Constitution
(4th Amendment)· Act, 1955 with retrospective effect.
Section
3 of the Constitution (4th Amendment) Act reads, as follows :-
"(a) for clause (1), the following clause shall be,
and shall be deemed always to have been substituted,
namely:-
( 1) Notwithstanding anything contained in article
13, no Jaw providing for-
( a) the acquisition by the State of any estate or of
any rights therein or the extinguishment or modification of any such rights, or
;
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SHANKARA RAO v. MYSORE (Ramaswami, J.)
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(b) the taking over of the management of any
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property by the State for a limited period either in the
public interest or in order to secure the proper
management ol' the property; or
( c) the amalgamation of two or more corporations either in the public interest or in order to secure
the proper management of any of the corporations, or
( d) the
extinguishment or
modification of any
rights of m!IQ:Jaging agents, secretaries and treasurers,
managing directors, directors or managers or corporations, or of any voting rights of shareholders thereof, or
( e) the extinguishment or modification of any
rights accruing by virtue of any agreemtmt, lease or
licence for the purpose of searching for, or winning,
any mineral or mineral oil, or the . premature termination or cancellation ol' any such agreement, lease or
licence,
shall be deemed to be void on the ground that it
is inconsistent with, or takes away
or abridges any
of the rights conferred by article 14,
article 19 or
article 31;
Provided that where such law is a law made by the
Legislature of a State, the provisions of this
article
shall not apply thereto unless such Jaw, having been
reserved for the consideration of the President,
has
received his assent; and
(b) in clause (2),-
(i) in sub-clause (a), after the word 'grant' the
words 'and in the States of Madras and TravancoreCochin, any janmam right' shall be,
and
shall
be
deemed always to have been inserted.
(ii) iin sub-clause (b), after the word 'tenureholder' the words 'raiyat, under-raiyat' shall be,
and
shall be deemed always to have been, inserted".
In the present case, it is plain that under Article 3 lA as
introduced by the 1st Amendment
to the Constitution or as
altered by the 4th Amendment, the impugned Act is protected
from attack in any Court on the ground that it contravenes the
provisions of Article 31 (2) of the Constitution. The reason is
H
that the impugned Act is a law providing for the acquisition by
the State ol' any estate or of any rights therein or for the
ex~guishment or modification of such rights as contemplated
by Article 31A of the Constitution. The impugned Act provides
L7 Sup. C.I./69-2
10
SUPREME COURT REPORTS
(1969] 3 s.c.R.
for acquisition of the rights of inamdars in inam estates in Mysore
11,.
State and it is intended to abolish all intermediate holders who
were termed as· Superior holders and to establish direct relationship between the Government lll!ld occupants. of land in the Iruun
Villages in respect of which notifications had been issued.
The
legislation was undertaken as a part of agrarian reform which
the Mysore State Legislature proposed to bring about in the
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former State of Mysore.
The impugned statute, therefore, falls
under the protection of Article 3 lA oi the Coin.stitution and cannot be challenged on the ground that Article 31 has been violated, that no principle of compensation has been provided or that
the compensation provided for is illusory or inadequate.
On behalf of the petitioners Mr. Krishnamurthi. in support
of his argument referred to the ·decision of this Court in State
of Madras v. D. Namasivaya Mudaliar and Ors. (1 }
in which
Madras Lignite (Acquisition of Land) Act (Madras Act XI of
1953) was held invalid on the ground that the provisions of the
Act relating to compensation violated Article
31 (2)
of the
Constitution as it stood before the Constitution (4th Amendment)
Act, 1955 and that the principle laid down in The State of West
Bengal v. Mrs. Bela Banerjee & Ors.( 2 ) was applicable.
Reference was also made to another decision of this Court in
P. Vajravelu Mudaliar v. Special Deputy Collector, Madras
&
Anr.,(8 ) in which the question was raised with regard to the
validity of Land Acquisition, Madras Amendment Act,
1961
(Madras Act 23 of 1961). In that case the petitioners' lands
were notified for acquisition for the purpose of housing schemes
and the object of the acquisition was slum clearance. In that
case also it was held by this Court that the principle of Bela
Banerjee's(~-) case should be applied a\fld by virtue of Article
31 (2) the Legislature in making the law of acquisition must
provide for a "just equivalent" oi what the owner has been
deprived of or specify the principles for the purpose of ascertaining such "just equivalent". It was pointed out that the comparative study of the principal Act and the Amending Act showed
that if land was acquired for a housing scheme under the Amending Act, the claimant would get a lesser value than what he would
get for the same or similar land acquired for some public purpose
under the Principal Act. The discrimination between persons whose
lands were acquired for housing schemes and those whose lands
were acquired for other public purposes could not be sustained on
the principle of reasonable cl.assification and the Amending Act
clearly violated Article 14 of the Constitution and was void. In
our opinion, the ratio of the two decisions in State of Madras v.
(I) [1964] 6 S.C.R. 936.
(2) [!9541 S.C.R. 558.
(3) [1965! I S.C.R. 614.
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SHANKARA RAO v. MYSORE (Ramaswami, /.)
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D. Namasivaya Mudaliar & Ors.(') and P. Vajravelu Mudaliar v.
Special Deputy Collector, Madras and Anr.(2 ) has no application
to the present case because those. cases related to legislation not
dealing with agrarian reform and the protection of Article 3 lA of
the Constitution was not available to either of the statutes
challenged in those cases.
We pass on to consider the next question raised on behalf of
the petitioners, namely, whether the impugned Act was beyond the
legislative competence of the Mysore Legislature under Entry 36
.of List II to the 7th Schedule and Entry 42 of List III as those
Entries stood before the 7th Amendment of the Constitution. The
argument may be summarised thus : Bntry 36 of List II read with
Article 246(3) of the Constitution was obviously intended. to
authorise the State Legislature to exercise the right of eminent
domain i.e., right of compulsory acquisition of private property.
The exercise of such power has been recognised in Anglo-Saxon
jurisprudence as conditioned by public necessity and payment of
compensation.
All legislation in this country authorising such
acquisition of property from Re~ulation 1 of
1824 to Land
Acquisition Act 1894 proceeded on that footing. The existence of
public purpose and the obligation to pay compensation are, therefore, necessary concomitants of compulsory acquisition of private
property, and so, the term "acquisition" must be construed
as
importing by necessary implication the aforesaid two condition•.
It is also a recognised rule for the construction of statutes that,
unless the words of the statute clearly so demand, a statute is not
to be construed so as to take away the property of a subject without compensation :
Attorney-General v.
De
Keyser's
Raya!
Hotel.(';) The power to take compulsorily raises by implication
a right to
payment : Central
Control Board v.
Cannon
Brewery('). The words "subject to the provisions of entry 42 in
List III" in entry 36 reinforce the argument, as these words n{ust
be t~k~!l to mean that the power to ma!re a law with respect to
acqu1s1t10n of property should be exercised subject to the condition that such Jaw should also provide for the matters referred to
in entry 42, in other words, a two-fold restriction as to public
purpose and payment of compensation
(both of which are
referred to in entry 42) is imposed on the exercise of the law
making power under entry 36. Entry 36 at the material time read
as follows:
"Acquisition or requisition of property, except for
the purposes of the Union, subject to the provisions of
entry 42 of List III".
Entry 42 was to the following effect :
(I) [1964] 6 S.C.R. 936.
(J) [1920] A.C. 508, 542.
(2) [1965] I S.C.R. 614.
(4) [1919JIA.C. 744.
12
SUPREME COURT REPORTS
[1969] 3 s.c.R.
• "Principles on which
cqmpensation for
property
A
acquired or requisitioned for the purposes of the Union
or of a State or for any other public purpose is to be
determined, and the form and the manner in which
such compensation is to be given''.
By the Constitution (7th Amendment) Act, 1956, Entries
36
of List II, 33 of List I were omitted and Entry 42 of List III was
B
altefe4 and the altered entry reads as follows : "Acquisition aind
requisitioning of property".
It was however pointed out on
behalf of the petitioners that the amendment was not retrospective and the validity of the impugned Act must be tested by the
language of entries 36 of List II and 42 of List III as they stood
at the material time.
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In our opinion, there is no substance in. the argument. It is
true that under the common law of emiinent domain as recognised
in Anglo-Saxon jurisprudence the State cannot take the property
of its subject unless such property is required for a public purpose and without compensating the owner for its loss. But, when
these limitations are expressly provided for in Article 31 ( 2)
and it is further enacted that no law shall be made which takes
away or abridges these safeguards, and any such law, if made,
shall be void, there can be no room for implication, and the
words "acquisition of property" in entry 36 must be understood in
their natural sense of the act of acquiring property, without
importing into the phrase an obligation to pay compensation or a
condition as to the existence of a public purpose. In other words,
it is not correct. to treat the obligation to pay compensation as
implicit in the legislative entry 33 of List I or legislative entry 36
of List II for it is separately and expressly provided for in Article
31 (2). The well-known maxim expressum facit cessare taciturn
is indeed a principle of logic and commonsense and not merely a
technical rule of construction. The express provision in Article
31 (2) that a law of acquisition in order to be valid must provide
for compensation will, therefore, necessarily exclude all suggestion
of an implied obligation to provide for compensation sought to be
imported into the meaning of the word "acquisition" in entry 36
of List II. In the face of the express provision of Article 31 (2),
there remains no room for reading any such implication in the
legislative heads. The entries in the Lists of the Seventh ..Schedule
are designed to define and delimit the respective areas of legislative competence of the Union and State Legislatures. Such a
context is hardly appropriate for the imposition of implied restrictions on the exercise of legislative powers, which are ordinarily
matters for positive enactment in the body of the Constitution.
It was said that the words "subject to the provisions of entry
42 of List III" must be taken to mean that the law-making power ·
under entry 36 could be exercised subject to the two conditions as
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SHANKARA RAO v. MYSORE (Ramaswami, J.)
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to public purpose and payment of compensation both of which
are referred to in entry 42. In our opinion, the contention is unsound. The two entries are merely heads of legislation and are
neither interdependent nor ·complementary to each other. These
words in entry 36 mean no more than that any law made under
entry 36 by a State Legislation can be displaced or overridden by
the Union Legislation making a law under entry 42 of List ill.
B
It is important to notice that similar words do not occur in entry
33 of List I which confers on Parliament the power to make laws
with respect to acquisition of property for the purpose of the
Union.
For if these restrictive conditions as to public purpose
and payment of compensation are to be derived only from those
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words, then it must follow that in the absence of those words,
Parliament can make law, authorising acquisition of property
without a public purpose and without a provision for compensation. No reason was suggested why Parliamentary Legislation
with respect to such acquisition of property is to be free from
such restrictive condition, while State Legislation should be
subject to them. The true inference is that the power to make law
belonging to both Parliament and the State Legislatures can be
exercised only subject to the aforesaid two restrictions not by
reason of anything contained in the legislative entries themselves
but by reason of positive provisions contained in Article 31 (2).
But as legislation falling within Article 3 lA cannot be called in
question in a Court of law for mm-compliance with those provisions such legislation cannot be struck down as unconstitutional
and void. In our opinion, counsel on behalf of the petitioners i~
unable to make good his argument that the impugned Act was
beyond the legislative competence of the Mysore Legislature at
the time when it was enacted.
For these reasons we hold that the petitioners have made out
no case for grant of relief under Art. 32 of the Constitution.
F
These writ petitions accordingly fail and are dismissed with costs.
There will be one set of hearing fee.
V.P.S.
Petitions dismissed.