# The State of Bombay v. Virkumar Gulabchand Shah. Bose /

- **Citation:** [1952] 1 S.C.R. 889
- **Court:** Supreme Court of India
- **Decided:** 1952
- **Bench:** PATANJALI SASTRI c. J, Mehr Chand Mahajan, MuKHERJEA, DAs, Chandrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-bombay-v-virkumar-gulabchand-shah-bose-75
- **Pages:** 131

## Headnote

Bihar Land Reforms Act (XXX of 1950)-Law for abolition of
zamindaries-Validity-Necessity to provide for compensation
and
of public purpose-Jurisdiction of Court to enquire into validityDelegation of legislative powers-Fraud on the Constitution-Constitution of India, 1950-Constitution (First Amendment) Act, 1951Arts. 31, 31-A, 31-B, 362, 363-Sch. VII,
List II, entries 18, 36
and List Ill, entry 42-Construction-Spirit of the ConstitutionRight of eminent domain-"Law", "Legislature", "Public purpose",
meanings of-Convent
of
merger-Compulsory
acquisition
of
private property of Ruler-Acquisition of arrears of rent payinl
50%-Deduction for cost of works-Legality.
115
1952
The State of
Bombay
v.
Virkumar
Gulabchand
Shah.
Bose /.
1952
May 2, 5.
•
1952 -
The State of
Bihar
v.
Maharaiadhira;aSir
Kameshwar
Singh
of Darbhanga
and Others.
890
SUPREME COURT REPORTS
[1952]
Held
per
Curiah
(MAHAJAN,
MuKHERJEA
and
CHANDRA·
SEKHARA AtYAR JJ.)-Thc Bihar
Land
Reforms
Act,
XXX
of
1950,
is not unconstitutional or void except with regard to the
provisions in s. 4(b) and s. 23(f) thereof.
The provisions of
s.
4(b)
and
s.
23(f)
are
unconstitutional.
Per
PATANJALI
SASTRI
C. J. and DAs J~The whole
of the
Bihar
Land
Reforms
Act
of
1950,
including
the provisions contained in
s. 4(b) and s. 23(f) is constitutional and valid.
Per
PATANJALI
SASTRI C. J.,
MAHAJAN,
MuKHERJEA,
D1i.s
and CHANDRASEKHARA
AIYAR JJ.-(i) The Bihar Land Reforms
Act, XXX of 1950, is not a law in respect of a matter
mentioned in entry 18 of List II, viz., "lands and land
tenures",
but a
law in respect of "acquisition of property", a matter covered
by entry 36 of List II.
(ii) The obligation
to
pay
compensation
for
property
acquired
by the State is not an obligation imposed by entry 36
of List II read by itself or in conjunction with entry 42 of List III
or by the spirit of the Constitution.
Consequently, an
objection
to the validity of a statute in resixct of acquisition of property
on the ground that it does not provide for payment of compensation is an objection on the ground that it contravenes the
provisions of. art. 31(2) and the jurisdiction of the Court to
entertain such an objection in respect of a statute mentioned
in
the Ninth Schedule to the Constitution is barred by art. 31(4),
art.
31-A and art. 31-B
of the Constitution. Per DAs /.-
Assuining
that
the
obligation
to
pay
compensation
is
also
implicit in entry 36 of List II, in itself or read with entry 42 of
List III, even then the validity of the Act cannot be questioned
by reason of arts. 31( 4), 31-A and 31-B.
(iii) Section 32(2) of the Act which empowers the State
Government
to
frame
rules
providing
for "the proportion
in
which compeinsation shall be payable in cash and in bonds and
·the manner of payment pf such compensation"
does
not involve
any delegation of legislative powers especially as
the
legislature
has itself provided in s. 32(2) that the compensation shall be
payable in cash or in bonds . or partly in cash and partly in
bonds and fixed the number of instalments in which it should be
paid.
The words "subject to" in entry 36 of List II only mean
that whenever a law is made by a State Legislature
in
exercise
of its legislative power under entry 36, that law will be
subject
to the provisions of a law made by the Parliament under entry 42
of List III. The words do not mean that when a State makes a
law under entry 36 it must lay down the principles on which
compensation payable for property acquired is to be determined
and the form and manner in which it should be given.
(iv) Entries in the Lc;gislative Lists arc merely of an enabling character.
The power conferred thereunder on the legislatures is not coupled with any duty on the legislature to exercise
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'.S.C.R.
SUPREME COURT REPORTS
891
:such power and the principle laid down in /ulius v. Bishop of
Oxford [5 A.C. 214] has, therefore, no application to the Lists.
Per
PATANJALI
SASTRI
C.
J.,
MuKHERJEA
and
DAs JJ.
(MAHAJAN
and
CHANDRASEKHARA
AIYAR
JJ.

## Text

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S.C.R.
SUPREME COURT REPORTS
889
the learned English Judges in the first tea case would
not be without relevance on the question of sentence
in many cases of this kind. There can, I think, be no
doubt that businessmen who are not lawyers
might
well be misled into thinking that the Ordinance and
the Act did not intend to keep the Order of 1944 alive
because the Order related to certain specified spices
while the Ordinance and the Act changed the .nomenclature and limited themsleves to "foodstuffs", a term
which, on a narrow view, would not include condiments and spices.
However, these observations are
not relevant here because we are not asked to restore
either the conviction or the sentence. In view of that,
there will be no further order and the acquittal
will be left as it stands.
·.
\
Order accordingly.
Agent for the appellant: P. A. Mehta.
Agent for the respondent : M. S. K. Sastri.
THE STATE OF BIHAR
fl.
'
MAHARAJADHIRAJA SIR KAMESHW AR SINGH
OF DARBHANGA AND OTHERS
(CASES Nos. 305 TO 348 OF 1951 AND PETITION No. 612 OF 1951)
[PATANJALI
SASTRI c. J., MEHR CHAND MAHAJAN,
MuKHERJEA, DAs and CHANDRASEKHARA AIYAR JJ.]
Bihar Land Reforms Act (XXX of 1950)-Law for abolition of
zamindaries-Validity-Necessity to provide for compensation
and
of public purpose-Jurisdiction of Court to enquire into validityDelegation of legislative powers-Fraud on the Constitution-Constitution of India, 1950-Constitution (First Amendment) Act, 1951Arts. 31, 31-A, 31-B, 362, 363-Sch. VII,
List II, entries 18, 36
and List Ill, entry 42-Construction-Spirit of the ConstitutionRight of eminent domain-"Law", "Legislature", "Public purpose",
meanings of-Convent
of
merger-Compulsory
acquisition
of
private property of Ruler-Acquisition of arrears of rent payinl
50%-Deduction for cost of works-Legality.
115
1952
The State of
Bombay
v.
Virkumar
Gulabchand
Shah.
Bose /.
1952
May 2, 5.
•
1952 -
The State of
Bihar
v.
Maharaiadhira;aSir
Kameshwar
Singh
of Darbhanga
and Others.
890
SUPREME COURT REPORTS
[1952]
Held
per
Curiah
(MAHAJAN,
MuKHERJEA
and
CHANDRA·
SEKHARA AtYAR JJ.)-Thc Bihar
Land
Reforms
Act,
XXX
of
1950,
is not unconstitutional or void except with regard to the
provisions in s. 4(b) and s. 23(f) thereof.
The provisions of
s.
4(b)
and
s.
23(f)
are
unconstitutional.
Per
PATANJALI
SASTRI
C. J. and DAs J~The whole
of the
Bihar
Land
Reforms
Act
of
1950,
including
the provisions contained in
s. 4(b) and s. 23(f) is constitutional and valid.
Per
PATANJALI
SASTRI C. J.,
MAHAJAN,
MuKHERJEA,
D1i.s
and CHANDRASEKHARA
AIYAR JJ.-(i) The Bihar Land Reforms
Act, XXX of 1950, is not a law in respect of a matter
mentioned in entry 18 of List II, viz., "lands and land
tenures",
but a
law in respect of "acquisition of property", a matter covered
by entry 36 of List II.
(ii) The obligation
to
pay
compensation
for
property
acquired
by the State is not an obligation imposed by entry 36
of List II read by itself or in conjunction with entry 42 of List III
or by the spirit of the Constitution.
Consequently, an
objection
to the validity of a statute in resixct of acquisition of property
on the ground that it does not provide for payment of compensation is an objection on the ground that it contravenes the
provisions of. art. 31(2) and the jurisdiction of the Court to
entertain such an objection in respect of a statute mentioned
in
the Ninth Schedule to the Constitution is barred by art. 31(4),
art.
31-A and art. 31-B
of the Constitution. Per DAs /.-
Assuining
that
the
obligation
to
pay
compensation
is
also
implicit in entry 36 of List II, in itself or read with entry 42 of
List III, even then the validity of the Act cannot be questioned
by reason of arts. 31( 4), 31-A and 31-B.
(iii) Section 32(2) of the Act which empowers the State
Government
to
frame
rules
providing
for "the proportion
in
which compeinsation shall be payable in cash and in bonds and
·the manner of payment pf such compensation"
does
not involve
any delegation of legislative powers especially as
the
legislature
has itself provided in s. 32(2) that the compensation shall be
payable in cash or in bonds . or partly in cash and partly in
bonds and fixed the number of instalments in which it should be
paid.
The words "subject to" in entry 36 of List II only mean
that whenever a law is made by a State Legislature
in
exercise
of its legislative power under entry 36, that law will be
subject
to the provisions of a law made by the Parliament under entry 42
of List III. The words do not mean that when a State makes a
law under entry 36 it must lay down the principles on which
compensation payable for property acquired is to be determined
and the form and manner in which it should be given.
(iv) Entries in the Lc;gislative Lists arc merely of an enabling character.
The power conferred thereunder on the legislatures is not coupled with any duty on the legislature to exercise
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'.S.C.R.
SUPREME COURT REPORTS
891
:such power and the principle laid down in /ulius v. Bishop of
Oxford [5 A.C. 214] has, therefore, no application to the Lists.
Per
PATANJALI
SASTRI
C.
J.,
MuKHERJEA
and
DAs JJ.
(MAHAJAN
and
CHANDRASEKHARA
AIYAR
JJ.
dissenting).-The
existence of a public purpose as a pre-requisite to the exercise of
the power of compulsory acquisition is an essential and integral
part of the provisions of art. 31(2) and an infringement of such
a provision cannot be put forward as a ground for
questioning
the validity of an Act providing for compulsory acquisition.
DAs. J.-Even assuming that the necessity of a public purpose is
implied in entry 36 of List II and/or entry 42 of List III also,
arts. 31 ( 4), 31-A and 31-B would still protect the Act from being questioned on the ground that the acquisition was not for a
public purpose. In any case the impugned Act is supported by a
public purpose.
Per
MAHAJAN and
CHANDRASEKHARA
A1YAR JJ.-The scope
-0f art. 31(4) is limited to the express
provisions of art. 31(2)
and though the courts cannot examine the extent or
adequacy
-0f the provisions of compensation contained in any law dealing
with the acquisition of property compulsorily, yet the
provisions
of art. 31 ( 4) do not in any way debar the court from consider•
ing whether the acquisition is for a public purpose.
Though
the
main object of the Act, viz., the acquisition of estates, is
for
a
public purpose, the acquisition of arrears of rent due to the
zamindars on payment of 50 per cent. of their value cannot be held
to be for a public purpose and sec. 4 clause (b) of the Act is therefore unconstitutional
and
void.
Per
MuKHERJEA
J.-Assuming
that art. 31 ( 4)
relates to everything that
is
provided for in
art. 31 (2) either in express terms or even impliedly and consequently thei question of the existence of a public purpose is not
justiciable, as the real object of sec. 4, clause (b) is to deprive the
man of his money, which is not a subject-matter for acquisition
under the powers of eminent domain, without giving anything
in exchanm under the guise of acting under entry 4 2 the legislature has in truth and substance evaded and nullified its
provisions altogether and sec. 4 clause (b) is therefore unconstitutional
"''
and void.
•
PATANJALI
SAsTRI C. J.-Whatever may be the pc>1t10n as
regards the acquisition of money as such it is not correct to say
that a law made under entry 36 of List II cannot authorise
acquisition of choses in action like arrears 'of rent due from the
tenants which are covered by the term "property" used in that
entry and in art. 31. The view that .a payment in cash or in
government bonds of half the amount of such arrears leaves the
zamindar
without
compensation
for
the
balance
is
equally
fallacious. Section 4 clause (b) is not therefore ultra vires or unconstitutional.
1952
The State of
Bihar
v.
Maharajadhiraja Sir
Kameshwar
Singh
of Darbhanga
and Others.
1952
The Sta~ of
Bihar
v.
MaharajadhirajaSir
Kameshwar
Singh
of Darbhanga
and Others.
892
SUPREME COURT REPORTS
[1952J
Per
MAHAJAN, MuKHERJEA and
CHANDRASEKHAllA AIYAR JJ.
(PATANJALI SAsTRI C. J. and DAs J. dissenting).-&xtion 23 (b)
of the Act which provides for a deduction on a percentage basis
out of the gross asserts for "costs of works of benefit to
the
raiyat", is ostensibly enacted under entry 42 of List III, but it is
merely a colourable piece of legislation, a mere device to
reduce
the gross assets, which does not really come under entry 42 and
is unconstitutional.
PATANJALI
SAsTRI C.
J. and
DAs J.-The
zamindars are under an obligation to maintain and repair the
minor irrigation works in their villages which arc beneficial to
the raiyats and the cost of such works is therefore a perfectly
legitimate deduction
in computing the
net assets of the estate
and sec. 23(f) is not unconstitutional. Further, as a payment of
compensation is not a
justiciable issue in the
case of the
im~
pugned statute, having regard to arts.
31 (4), 31-A and 31-B,
it
is not open to the
Court to enquire whether a reduction which
results in reducing the compensation is unwarranted and there·
fore a fraud on the Constitution.
Per MAHAJAN J.-The phrase "public purpose" hao to be
construed according to the spirit of the times in which the particular legislation is enacted and so construed, acquisition of estates
for the purpose of preventing the concentration of huge blocks of
land in the hands of a few individuals and to do away with
intermediaries is for a public purpose.
-Per DAs J.-No hard and fast definition can be laid down
as to what is a "public purpose" as tho concept has been
rapidly changing in all countries, but it is clear that it is the
presence of the element of general interest of the community
in
an object or an aim that transforms such object or aim into a
public
purpose,
and
whatever
furthers
the general
interest
of the community as opposed to the particular interest of the
individual must be regarded as a pnblic purpose.
APPEALS under article 132(1) of the Constitution
of India from the judgment and
decree dated 12th
March, 1951, of the High Court of Judicature at Patna
(Shearer, Reuben and Das JJ.) in Title Suits Nos. 1 to
3 and Mis. Judicial Cases Nos.
230-234,
237-244,
246 to 254, 257, 261 to 264, 266, 262, 270 to 277,
287-290 and 297 of 1951. PETITION No. 612 of 1951,
a petition under. article 32 of the Constitution for
enforcement of fundamental rights, was also heard
along with ,these appeals.
'r
•
The facts that gave rise to these appeals and peti-
;.
tion arc stated in the judgment.
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S.C.R.
SUPREME COURT REPORTS
893
M. C. Settdvad (Attorney-General. for India)
and
Mahabir Prasad (Advocate-General. of Bihar) with G. N.
Joshi, Lal Narain Singh and Alladi Kuppuswami
for
the State of Bihar.
P. R. Das (B. Sen, with him) for the respondents
in Cases Nos. 339, 319, 327, 330 and 332 of 1951.
Sanjib K. Chowdhury, S. N. Mukherjee, S. K. Kapur
for the respondents in Cases Nos. 309, 328, and 336
of 1951.
Urukramdas Chakravarty
for
the
respondents in
Cases Nos. 326, 337 and 344 of 1951.
Raghosaran Ltd for the respondents in Cases Nos.
310, 311 and 329 of 1951.
S. C. Mazumdar for the respondent in Case No.
315 of 1951.
S. Mustafid and /agadish Chandra Sinha for the
respondents in Cases Nos. 307, 313, 320, 321, and 322
of 1951.
Ray Parasnath for the respondent in Case No. 331
of 1951.
S. K. Kapur
for
the
petitioner in Petition No.
612 of 1951.
1952. May 2, 5. The Court delivered judgment as
follows:-
PATANJALI SAsTR1 C.
J.-*These
appeals and petitions which fall into three groups raise the issue of
the constitutional validity of
three
State enactments
called
The Bihar Land Reforms Act, 1950 (Bihar Act XXX
of 1950),
'*The Chief Justice, in his judgment, dealt with the above
· Cases and Petition and also Petitions Nos.
166;
228,
237, 245,
246, 257, 268, 280 to 285, 287 to 289, 317, 318 and 487 of 1951
(relating to the Madhya Pradesh Abolition of Proprietary Rights
(Estates Mahals, Ali®ated Lands) Act, 1950) and Cases Nos. 283
to 295 of 1951 (relating to the Uttar
Pradesh Zamindari
Abolition and Land Reforms Act, 1950).
1952
The State of
Bihar
v.
Maharaiadhiraja Sir
Kameshwar
Singh
of Darbhangt;
and Others.
1952
The State of
Bihar
v.
MaharajaJhiraja Sir
Kameshwar
Singh
of Darbhanga
and Others.
Patanjali
Sastri C. /.
894
SUPREME COURT REPORTS
The Madhya Pradesh
Abolition
of
Rights (Estates, Mahals, Alienated Lands)
(No. I of 1951), and
[1952]
Proprietary
Act, 1950
The Uttar Pradesh Zamindari Abolition and Land
Reforms Act, 1950 (U. P. Act No. I of 1951)
(hereinafter referred to as the Bihar Act, the Madhya
Pradesh Act and the Uttar Pradesh Act, respectively).
The common aim of these statutes, generally speaking, is to
abolish zamindaries and other proprietary
estates and tenures in the three States aforesaid, so as
to eliminate the intermediaries by means of compulsory acquisition of their rights and interests,
and
to
bring the raiyats and other occupants of lands in those
areas into direct relation with the Government. The
constitutionality of these Acts having been challenged
in the respective State High Courts on nrious grounds,
the Bihar Act was declared unconstitutional and
void
on the ground that it contravened article 14 of the
Constitution, the other grounds of attack being rejected while the other two Acts were adjudged constitutional and valid. The appeals are directed against
these decisions.
Petitions have also been filed in this
Court under article 32 by certain other zamindars
seeking determination of the same issues. The common
question
which arises for consideration
in all these
appeals and petitions is whether the three State Legislatures, whch respetively passed the three
impugned
statutes, were
constitutiona\.ly
competent
to enact
them, though some special points are also involved in
a few of these cases.
As has been stated, various grounds of
attack
were put forward in the courts below, and, all of
them having been
repeated
in
the
memoranda
of appeals and the petitions, they would have required consideration
but for
the
amendment
of
the
Constitution by the Constitution (First Amendment)
Act, 1951 (hereinafter referred to as the
Amendment
Act) which was
passed
by the
provisional Parlia-
.._.
ment
during
the
pendency
of
these
proceedings.
That Act by inserting the new articles 31-A and
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SUPREME COURT REPORTS
893
31-B purported to protect, generally, all laws
providing for the acquisition of estates or interes.ts therein,
and specifically, certain
statutes, including the
three
impugned Acts, from attacks based on article 13 read
with other relevant articles of Part III of the Constitution.
And the operation of these articles was made
retrospective by providing, in section 4 of the Amendment Act, that article 31-A shall be "deemed always
to have been inserted" and, in article • 31-B, that
none of the specified' statutes "shall be deemed ever
to have become void". The validity of the Amendment Act was in turn challenged in proceedings instituted in this Court under article 32 but was upheld
in Sankari Prasad Singh Dea v. Union of India and
State of Bihar(1). The result is that the impugned
Acts can no longer be attacked on the ground of alleged infringement of any of the rights conferred by the
provisions of Part III.
It will
be noted, however, that articles 31-A
and
31-B afford only limited protection against one ground
of challenge, namely that the law in question is "inconsistent with, or takes away or abridges any of the
rights conferred by any provisions of this Part". This
is made further clear by the opening words of article
31-A "notwithstanding anything in the foregoing
provisions of this Part".
The Amendment Act thus provides no immunity from attacks based on the lack of
legislative competence under article 246, read with the
entries in List II or List III of the Seventh Schedule to
the Constitution to enact the three impugned
statutes,
as the Amendment Act d!d not in any way affect the
Lists.
Mr. P. R Das, leading counsel for the zamindars, accordingly based his main argument in these
proceedings on entry 36 of List II and entry 42 of
List III which read as follows :
"36. Acquisition or requisitioning
except for the purposes of the Union,
Provisions of entry 42 of List III.
of
property,
subject
to the
42. Principles on which compensation
for property
acquired or requisitioned for the purposes of the Union
(1) [1952] S.C.R. 89.
1952
The State of
Bihar
v.
Maharajadhiraja Sir
Kameshwar
Singh
of Darbhanga .
and Others ......
Patanjali
Sastri C. /.
1952
The State of
Bihar
v.
Maharaj a.
dhiraja Sir
Kameshwar
Singh
of Darbhanga
and Others.
Patanja/i
Sastri C. /,
896
SUPREME COURT REPORTS
[1952]
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".
The argument may be summarised thus.
Entry 36
of List II read with article 246(3) was obviously intended to authorise a State Legislature to exercise the
right of eminent domain, that is, the right of compulsory acquisition of private property, The exercise of
such power has been recognised in· the jurisprudence of
all civilised countries as conditioned by public
necessity and payment of compensation.
All legislation
in
this country authorising such acquisition
of property
from Regulation I of 1824 of the Bengal Code down
to the Land Acquisition Act, 1894, proceeded on that
footing.
The existence of a public purpose
and an
obligation to pay compensation being thus the necessary concomitants of compulsory acquisition of
private
property, the term "acquisition" must be construed
as importing, by necessary implication, the two conditions aforesaid. It is 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 Royal Hotel(1 ). 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 of List III" in entry 36
reinforce the argument, as these words must be
taken
to mean that the power to make a law with respect to
acquisition of property should be exercised subject
to
the condition that such law should also
provide for
the matters referred to in entry 4 2, 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.
In any case,
the legislative power conferred under entry 42 is a power coupled with a duty to exercise it for the benefit of the
owners whose
properties
are
compulsorily acquired
(1) [1920) A.C. 508, 542.
(2) [1919] A.C. 744.
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SUPREME COURT REPORTS
8<J7
;under a law made under entry 36. For all these
reasons the State Legislatures, it was claimed, had no
power to make a law for acquisition of property without fulfilling the two conditions as to public purpose
.and payment of compensation.
On the basis of these arguments, counsel proceeded
to examine elaborately various
provisions of the impugned Acts with a view to show that the compensation
which they purport to provide has, by "various shifts
:and contrivances", been reduced to an illusory figure
as compared with the market value of the properties
acquired.
The principles laid down for the computation of
compensation
operated
m
reality
as
·"principles
of
confiscation",
and
the
enactment
of the statutes was in truth a "fraud on the Constitution",
each of them being a colourable legislative
.expedient for taking private properties , without
payment of compensation in violation of the Constitution,
while pretending to comply with its
requirements.
Nor were, these statutes enacted for
any public
pur~
pose ; their only purpose and effect was to destroy the
dass of zamindars and tenure-holders and make
the
Government a "super-landlord".
While such an
aim
might commend itself as a proper policy to be pursued by the politkal party in power, it could not, in
law, be regarded as a public purpose.
Mr. Somayya, who appeared for some of the zamin-
-dars in the Madhya Pradesh group of cases, while
adopting the arguments of Mr. Das, put forward an
additional ground of objection.
He argued that
the
impugned Acts were not passed in accordance with
the procedure
prescribed
in
article
31 (3)
which
·provides
"No such law as is referred to in clause (2) made
:by the Legislature of a State shall have effect unless
such law, having been reserved for the consideration
of the President, has received his assent".
Learned counsel stressed
the
words "law" and
·•'legislature" and submitted that, inasmuch
as the
legislature of a State included
the Governor (article
116
.{ ·-:-.
1952
The State of
Bihar
v •
MaharaiadhirajaSir
Kameshwar
Singh
of Darbhanga
and O.t!zers.
Patanjali
Sastri C. /.
•
1952
The State of
Bihar
y,
MaharajadhirajaSir
Kameshwar
SinKh
of Darbhanga
11nd Ot7ters.
Patanjali
Sastri C. f,
•
898
SUPREME COURT REPORTS
[1952J
168) and a bill could become a law only after the
Governor assented to it under article 200, clause (3) of
article 31 must be taken to require that a State law
authorising compulsory acquisition of property should
rei;eive the
Governor's
as
well
as
the President's
assent, the former to mab: it a law and the latter to
give it "effect". As the relative bilbi were reserved
in each case by the Governor
concerned
after
they
were passed by the House or Houses of Legislature,
a&
. the ::.;;,; may
b~ without giving
his
assent
under
article 200, the statutes did not
satisfy
the
require- ,
ments of article 31 (3) and so could not have "effect". ·
This ground of attack, it was claimed, was not exclud-
'ed by article 31-A or article 31-B as it was not based
on infringement of fundamental rights.
Dr. Ambedkar, who appeared for some of the zemindars in the Uttar Pradesh batch of cases, advanced
a·
different line of argument. He· placed no reliance upon
entry 36 of List II or entry 42 of List III. He appeared to concede what Mr. Das so strenuously
contested,
that those entries,
concerned as they
were
with the
grant of power to the State Legislature to legislate
with respect to matters specified therein, could not be
taken, as a matter of construction, to import an obli--
gation to pay compensation.
But he maintained
that
a constitutional prohibition against
compulsory
acquisition of property without public
necessity
and payment of compensation was deducible from
what hecalled the "spirit of the Constitution", which, according to him, was a valid test for judging the constitutionality of a statute.
The Constitution, being avowedly
•one for establishing liberty, justice and equality and'
a government of a free people with only limited powers,
must be held to contain an implied prohibition against
taking
private · property without just
compensation·
and in the absence of a public purpose. He relied on·
certain· American decisions. and text books as supporting the view that a constitutional prohibition can be
derived by implication from the
spirit of
the
Con-·
stitution
where no
expr~s
prohib~tion has
been
enacted in that behalf.
Articles 31-A and 31-B barred.
)
•
'
..
-
..
S.C.R.
SUPREME COURT REPORTS
899
only objections
bas~d on alleged infringements of the
fundamental rights conferred by Part III, but if, from
the other provisions thereof it could be inferred that
there must be a public purpose and payment of compensation before private property could be compulsorily acquired by the State, there was npthing in the
two articles aforesaid to preclude objection on the
ground that the impugned Acts do not satisfy these
requirements and are, therefore, unconstitutional.
In addition to the aforesaid grounds of attack, which
were common to all the three impugned statutes,
the
validity of each of them or of some specific provisions
thereof was Aliso challenged on some special grounds •
It will be convenient to deal with them after disposing
of the main contentions summarised above which are
common to all the three batches of case~.
These contentions are, in my judgment devoid of
of substance and force and I have no hesitation in
rejecting them.
The fact of the matter is the zemindars lost the battle in the last round when this Court
upheld the constitutionality of
the
Amendment Act
which the Provisional
Parliament enacted
with
the
object, among others, of putting an end to this
litigation. And it is no disparagement to their learned
counsel to say that what remained
of
the
compaign
has been fought with such weak arguments
as overtaxed ingenuity could suggest.
It will be convenient here to set out the material
provisions of the Constitution on which the arguments
before us have largely turned.
Article 31 (2).
No property movable or immovable
........ shall be acquired for public purposes under any
law authorising ........ such acquisition unless the law
provides for compensation for the property .... acquired
and
either
fixes the
amount
of compensation or
specifies the principles on
which
and
the
manner
i~ which the compensation is to
be determined and
given.
(3) No such law as is referred· to in clause (2) made
by the Legislature of a State shall have effect unless
3-10 S. C. India/71
1952
The State of
Bihar
v.
Maharaia·
dhiraia Sir
Kameshwar
Singh
of Darbhang_a
and Others.
Patanjali
Sastri C. /.
1952
The State of
Bihar
••
Maharajadhiraja Sir
Kameshwar
Singh
11f Darbhanga
and Others.
Patanjali
Sastri C. /.
900
SUPREME COURT REPORTS
[1952]
I
such law, having been reserved for the consideration
of the President, has received his assent.
( 4) If any bill pending at
the
commencement
of
this Constitution in the Legislature of
a State
has,
after it has been passed
by
such Legislature, been
reserved for the consideration of the
President
and
has received
his assent,
then, notwithstanding anything in this Constitution, the law so assented to shall
not be called in question in any court on
the ground
that it contravenes the provisions of clause (2).
(5) Nothing in clause (2) ~hall affect-
( a) The provisions of any existing law other than
a law to which the provisions of clause (6) apply, or
(b) the provisions of any law which the
State
may hereafter make-
(i) for the purpose of imposing or levying any tax
or penalty, or
(ii) for the promotion of public health or the prevention of danger to life or property, or
(iii) in pursuance of any agreement entered into
between the Government of the Dominion of India or
the Government of India and the Government of any
other country, or otherwise, with respect
to
property
declared by law to be evacuee property ....... ,
31-A. Saving of laws providing
for
acquisition of
estates,
etc.-(1) Notwithstanding
anything
in
the
foregoing provision;; of this Part no law providing for
the acquisition by the State of any e.state 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 : .....•
' -
'
31-B. Validation of certain Acts and
Regulations.-
Without prejudice to the generality
of the provisions
contained in article 31-A none of the Acts and Regulations specified in the Ninth Schedule nor any of the
provisions thereof shall be deemed to be void, or ever
r
to have become void, on the ground
that such Act,
•
•
..
..
)
S.C.R.
SUPREME COURT REPORTS
901
Regulation or provision is inconsistent with, or takes
away or abridges any of the rights conferred by any
provisions of
this
Part,
and
notwithstanding
any
judgment, decree or order of any court or tribunal to
the conuary, each
of the
said
Acts
and
Regulations shall, subject to the power of any
competent
Legislature to repeal or amend it, continue in force.
It will be seen that the scope of article 31 ( 4) is at
once narrower and wider than that
of
article
31-A ;
the former has application only to statutes which were
pending in the legislature at the commencement of the
Constitution, whereas the latter is subject to no such
restriction.
Again,
article 31 ( 4)
excludes
attack
only on the ground of contravention of article 31 (2),
while article 31-A bars objections based on
contravention of other provisions of Part III as well, such as
articles 14 and 19.
This indeed was the
reason for
the enactment of articles 31-A and 31-B, as the words
of exclusion in article 31(4) were found inapt to cover
objections based on contravention
of article 14.
On
the other hand, the law referred to
m
article 31(4)
covers acquisition of any kind
of
property,
while
.,
article 31-A relates only to the acquisition of a particular kind of property, viz., estates and rights therein, and what
is more
important
for
our present
purpose, the non obstante clause in article 31 ( 4) overrides all other provisions in the Constitution including
the List of the Seventh Schedule, whereas a law which
falls within the purview of article 31-A could
only
prevail over "the foregoing provisions of this Part".
Now, the three impugned statues
fall
within
the
"
ambit of both article 31 ( 4) and articles 31-A and 31-B.
Putting aside the later articles for the moment, it is
plain that, under article 31 ( 4), the three impugned
statutes are protected from attack in any court on the
•
ground that they contravene the provisions of article
31(2).
These provisions, so far as they are material
here, ~ ·e (i) that a law with respect to acquisition of
• property
~hould authorize acquisition
only
for a
...., public purpose and (ii) that such law should
provide
for compensation, etc.
Mr. Das, while admitting that
1952
The State of
Hihar
v.
MahRrajadhiraja Sir
Kameshwar
Singh
of Darbhanga
and Others.
Patanjali
Sastri C. /.
1952
The State of
Bihar
v.
Maharaia·
dhiraia Sir
Kameshwar1
Singh
of Darbhanga
and Others.
Palllniali
Sastri C. /.
902
SU:llREME COURT REPORTS
[19521
(ii) was a "provisi9n" of article 31(2), submitted that
( i) was not.
According to him clause (2)
assumed
but did not "provide"
that
acqms1t10n
should
be
authorised only for a public purpose. I cannot accept
that view.
In my opinion, the clause seeks also
to
impose a limitation in regard to public purpose.
The
clause was evidently worded in that form as
it
was
copied (with minor variations) from section 299 (2) of
the Govesrnment of India Act, 1935, which was undoubetedly designed to give effect to the recommendation of the Joint Parliamentary Committee in para. 369
of their Report that two conditions should be imposed
on expropriation
of
private
property : "We think
it (the provision proposed) should secure that legislation expropriating or authorising the expropriation of
the property of private individuals should
be lawful
only if confined to expropriation for
public purpose
and if compernation, is determined either in the first
instance or in appeal by some independent authority".
It is thus clear that section 299(2) was intended to
secure fulfilment of two conditions subject to which
alone legislation authorising
expropriation
of
private
property should be lawful, and it seems reasonable to
conclude th_at article 31 (2) was
also
intended
to
impose the same two conditions
on
legislation expropriating
private
property.
In
other
words,
article 31 (2) must be understood as also
providing
that legislation
authorising
expropriation
of
private
property should be lawful only if it was required for
a public purpose and provision was made
for
payment of compensation.
Indeed if this were
not so,
there would be nothing in the Constitution to prevent
acquisition for a non-public or private purpose
and
without payment of compensation-an
absurd
result. -
•
It cannot be
supposed
that the
framers
of
the
Constitution, while expressly
enacting one of the
two well-established restrictions
on the
exercise
of
the right of eminent domain, left
the other
to be
imported from the common law.
Article
31 (2)
must therefore, be taken to
provide
for
both
the
limitations in express terms.
An
attack
on
the ,...
..
S.C.R.
SUPREME COURT REPORTS
903
ground of contravention of tliese
provlSlons
implies that the law m
question
authorises
acquisition
without reference to a public purpose and
without
payment
of
compensation.
This was precisely the
objection raised both by Mr. Das and Dr. Ambedkar
to the constitutional validity of the impugned statutes,
and such objection really amounts
to calling
those
laws in question on the ground that they contravened
the provisions of article 31 (2), though learned counsel
stoutly denied that they were relying on the
provisions of article 31(2). The denial, however, seems to
me to be based on a quibbling distinction without a
difference in substance. Their main attack was really
grounded on the absence of these two
essential .. ~re
requisites of valid
legislation
authorising
acqms1t1on
of private property, though Mr. Das
would
deduce
them by implication from entry 36 of List II and
entry 42 of List III, while Dr. Ambedkar sought
to
derive them from the spirit of the Constitution.
But
this is only a form of stating the objection which, in
substance, is that the statutes are bad because of the
absence of a public purpose and the omission to
provide for a just compensation.
This, in fact, was the
burden of the argument before us.
If, then, these two
grounds of attack fall within the purview of article
31 ( 4), the words "notwithstanding anything
m
this
Constitution" are apt to exclude such grounds
howsoever they are derived-whether from the entries in
the legislative Lists or from the spirit of the Constitution-for both alike
are covered
by those
words.
Indeed, if the objection based on the absence
of
a
public purpose and of a provision for just compensation were still to be open, clause ( 4) of article 31 would -
be meaningless surplusage. It
is obvious that
that
clause was specially designed to protect the impugned
statutes and other laws similarly enacted from attack
in a court of law on the aforesaid grounds and, if they
were nevertheless to be considered as not being within
the protection, it is difficult to see what the use
of
article 31 ( 4) would be. Learned counsel were unable
to suggest any.
The fact is that article 31 ( 4) was
1952
The State·of
Bihar
v.
Maharajadhiraja Sir
Kameshwar
Singh
of Darbhang•
and Others.
Patanjali
Sastri C. /.
1952
T lu State of
Bihar
v.
Maharajadhiraja Sir
Kameshwar
Singh
of Darbhanga
and Others.
Patanja/i
Sastri C. /.
904
SUPREME COURT REPORTS
[19521
designed to bar the jurisdiction 'of courts to entertain
objections to the validity of a certain class of enactments on the two fold ground referred to above, and
its
whole
purpose
would
stand
defeated if
the
zemindars' contention were to prevail.
Even if it were open to the
court to consider
these grounds of objection, they are, in my op1mon,
unsustainable.
As po!nted out already,
article
31-A
operates as an except10n to article 31 (2)
read with
article 13, only in respect of laws authorising acquisition
of
"estates"
and
rights
thdein,
and
this exception is to be deemed to have been part of
the Constitution from its commencement. But it has
no application to laws authorising acquisition of other
kinds of property and, as regards these, the requirements as to public purpose and payment of compensation are still enforced by the express provisions
of
article 31(2).
In the face of the limitations on the
State's power of compulsory acquisition t'hus incorporated in the body of the Constitution, from which
"estates" alone are excluded, it would, in my opinion,
be contrary
to elementary canons of statutory construction to read, by implication,
those
very
limitations into entry 36 of List II, alone or in conjunction
with entry 42 of list III of the Seventh Schedule, or to
deduce them from "the spirit of the Constitution",
and that,
c too, in
respect
of the very
properties
excluded.
It is true that under the common law of eminent
domain as recognised in the jurisprudence of all civilized countries, 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 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" must be understood in
their
natural sense of the act of acquiring property, without
importing into
the
phrase
an obligation
to
pay
)
..
S.C.R.
SUPREME COURT REPORTS
905
compensation or a condition as
to the existence of a
public
purpose.
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,
and such
context
is
hardly appropriate for the imposition of implied restriictions on the exercise of legislative powers,
which
are ordinarily matters for positive enactment in
the
body of the Constitution.
There are indications in article 31 itself to show
that
the
expression
"acquisition
of
property
in
entry 36 of list II does not in itself carry any obligation to
pay
compensation.
Clause (4) of
that
article
postulates
a
"law"
authorising
acquisition
of
property
but
contravening
the
provisions
of
clause (2), that is, without a public purpose or payment of compensation. Similarly, clall!se (5) (b ), which
excepts certain categories of "laws" from the operation of clause (2), contemplates· laws being made without a public purpose or
payment of
compensation.
Such laws can be made by a State Legislature only
under entry 36 which
must, therefore,
be
taken to
confer a legislative power unfettered by any
implied
restrictions.
~t was suggested that the laws referred
to in sub-clause (b) of clause (5) are laws made in
exercise of the taxing power or the police power of
the State as the case may be, and that the sub-clause
was inserted only by way of abundant caution. This
is hardly a .satisfactory answer. Whatever may .be the
position as to a taxing law, in regard to the source of
legislative power, laws. under heads (2) and (3) of subclause (b) must necessarily be referable to, and derive
their competence from the legislative
power
under
entry 36 of List II, in so far as they purport to authorise acquisition of any property, for the police power
of the State is only the general power to regulate and
control the exercise of private rights and lioerties
in
the interests of the community and does not represent
any specific head of legislative power.
And even that
answer is not available to Mr. Das in regard
to
clause ( 4).
II7
1952
The State of
Bihar
v.
Maharajadhiraja Sir
Kameshwar
Singh
of Darbhang11
and Others.
Patanjali
Sastri C. /.
•
1952
"rhe State of
Bihar
v.
Maharajadhiraja Sir
Krlmeshwar
Singh
of Darbhanga
and Others.
PatanjaU
Saitri C. J.
•
906
SUPREME COURT REPORTS
[19521
Nor is the position improved for the zemindars by
reading entry 36 of List II and entry 42 of List III te>-
gether.
It was said that the words "subject
to
the
provisions of entry 42 in List III" must be taken
to
mean that the law-making
power
under entry
36
could only be exercised subject to the two conditions
as to public purpose and
payment
of compensation,
both of which are referred to in
entry. 42.
Those
words, in my opinion, mean no more than that any
law made under entry 36 by a State
Legislature can
be displaced or overridden
by
the Union Legislature
making a law under entry 42 of List III. Tha.t they
cannot bear the interpretation sought to • be put upon
them by Mr.