In view of that, either the conviction or the sentence v. Virkumar

Dr. Ambedkar, who appeared for some of the zemin- dars 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 appear- ed to concede what Mr. Das so strenuously that those entries, concerned as they were with the grant of power 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 a constitutional prohibition against compulsory acqui- sition of property without public necessity and pay- from what he- ment of compensation was deducible called the "spirit of the Constitution", which, accord- ing to him, was a valid test for judging the constitutio- nality of a statute. The Constitution, being avowedly justice and equality and' •one for establishing a government of a free people with only limited powers, must be held to contain an implied prohibition against taking private · property without compensation· and in the absence of a public purpose. He relied on· certain· American decisions. and text books as support- ing the view that a constitutional prohibition can be derived by implication from the the Con-· stitution where no expr~s prohib~tion has been enacted in that behalf. Articles 31-A and 31-B barred. spirit of liberty, ) • ' 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 there must be a public purpose and payment of com- pensation before private property could be compul- the State, there was npthing in the sorily acquired by two articles aforesaid to preclude objection on ground that the impugned Acts do not satisfy requirements and are, therefore, unconstitutional. In addition to the aforesaid grounds of attack, which were common to all the three impugned statutes, 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~. 1952 The State of Bihar v. Maharaia· dhiraia Sir Kameshwar Singh of Darbhang_a and Others. Patanjali Sastri C. /. force and I have no hesitation These contentions are, in my judgment devoid of of substance and rejecting them. The fact of the matter the zemin- dars lost the battle in the last round when this Court upheld the constitutionality of the Amendment Act which the Provisional Parliament enacted with object, among others, of putting an end 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 over- taxed 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 fixes the amount of compensation or specifies the principles on which the manner i~ which the compensation is to be determined and given. either (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 •• Maharaja- dhiraja Sir Kameshwar Singh 11f Darbhanga and Others. Patanjali Sastri C. /. 900 SUPREME COURT REPORTS [1952] such law, having been reserved for of the President, has received his assent. the consideration I ( 4) If any bill pending at commencement of this Constitution in the Legislature of a State has, after it has been passed by such Legislature, been reserved for then, notwithstanding any- has received his assent, thing in this Constitution, the law so assented to shall the ground not be called in question in any court on that it contravenes the provisions of clause (2). the consideration of the President (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 pre- vention 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 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 modifica- tion of any such rights, shall be deemed to be void on the ground that it is inconsistent with, or takes or abridges any of the rights conferred by any provi- sions 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 Regu- lations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever that such Act, to have become void, on the ground ' - ' r 1952 The State of Hihar v. MahRraja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Patanjali Sastri C. /. • • .. .. S.C.R. SUPREME COURT REPORTS 901 Regulation or provision is inconsistent with, or away or abridges any of the rights conferred by any provisions of judgment, decree or order of any court or tribunal to and Regula- the conuary, each competent tions shall, subject Legislature to repeal or amend it, continue in force. of the to the power of any and notwithstanding this Part, said Acts ) ., ( 4) to m excludes article 31 than that of It will be seen that the scope of article 31 ( 4) is at article 31-A ; once narrower and wider 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 attack restriction. Again, only on the ground of contravention of article 31 (2), while article 31-A bars objections based on contraven- tion of other provisions of Part III as well, such as reason for articles 14 and 19. This indeed was the 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 article 31(4) the other hand, the law referred covers acquisition of any kind of property, while article 31-A relates only to the acquisition of a parti- cular kind of property, viz., estates and rights there- our present in, and what purpose, the non obstante clause in article 31 ( 4) over- rides 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 this Part". prevail over "the foregoing provisions of Now, impugned statues ambit of both article 31 ( 4) and articles 31-A and 31-B. Putting aside the later articles for the moment, plain that, under article 31 ( 4), the three impugned statutes are protected from attack in any court on that they contravene the provisions of article they are material that a law with respect to acquisition of • property ~hould authorize acquisition for a ...., public purpose and (ii) that such law should provide 31(2). These provisions, so far as here, ~ ·e (i) for compensation, etc. Mr. Das, while admitting fall within important is more • ground " 1952 The State of Bihar v. Maharaia· dhiraia Sir Kameshwar1 Singh of Darbhanga and Others. Palllniali Sastri C. /. 902 SU:llREME COURT REPORTS [19521 acqms1t10n thus clear that section 299(2) was In my opinion, the clause seeks also (ii) was a "provisi9n" of article 31(2), submitted that assumed ( i) was not. According to him clause (2) should be but did not "provide" I cannot accept authorised only for a public purpose. that view. 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 un- doubetedly designed to give effect to the recommenda- tion of the Joint Parliamentary Committee in para. 369 of their Report that two conditions should be imposed on expropriation of private property : "We it (the provision proposed) should secure that legisla- tion 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 instance or in appeal by some independent authority". intended to It is secure fulfilment of to which expropriation of private alone legislation authorising property should be lawful, and it seems reasonable to conclude legislation ex- impose other words, propriating 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 for pay- a public purpose and provision was made Indeed if this were not so, ment of compensation. there would be nothing in the Constitution to prevent acquisition for a non-public or private purpose and result. without payment of compensation-an It cannot be supposed Constitution, while expressly two well-established restrictions to be the right of eminent domain, left law. Article 31 (2) imported must therefore, be taken to provide limitations in express terms. framers enacting one of exercise on the th_at article 31 (2) was two conditions subject for both attack on two conditions on the common the other the same that the property. intended private absurd In An - • ,... .. 1952 The State·of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhang• and Others. Patanjali Sastri C. /. S.C.R. SUPREME COURT REPORTS 903 tliese provlSlons legislation to calling authorising compensation. im- ground of contravention of acquisition authorises plies that the law m question to a public purpose and without without reference This was precisely the payment of objection raised both by Mr. Das and Dr. Ambedkar to the constitutional validity of the impugned statutes, and such objection really amounts laws in question on the ground that they contravened the provisions of article 31 (2), though learned counsel that they were relying on the provi- stoutly denied sions of article 31(2). The denial, however, seems to me to be based on a quibbling distinction without a really difference in substance. Their main attack was grounded on the absence of these two essential .. ~re­ requisites of valid acqms1t1on of private property, though Mr. Das would deduce implication from entry 36 of List II and them by entry 42 of List III, while Dr. Ambedkar sought derive them from the spirit of the Constitution. But this is only a form of stating the objection which, in that the statutes are bad because of the substance, is absence of a public purpose and the omission to pro- vide for a just compensation. This, in fact, was If, then, these two burden of the argument before us. the purview of article grounds of attack fall within 31 ( 4), the words "notwithstanding anything m Constitution" are apt to exclude such grounds how- the entries in soever the legislative Lists or from the spirit of the Constitu- those words. tion-for both alike Indeed, if the objection based on the absence of a public purpose and of a provision for just compensa- tion were still to be open, clause ( 4) of article 31 would - be meaningless surplusage. is obvious impugned clause was specially designed to protect the from attack statutes and other laws similarly enacted 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 is that article 31 ( 4) was to suggest any. The fact they are derived-whether from are covered It 1952 T lu State of Bihar v. Maharaja dhiraja 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 enact- ments on the two fold ground referred to above, and its whole zemindars' contention were to prevail. stand defeated if purpose would respect of "estates" Even if it were open to 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 laws authorising ac- quisition of thdein, rights 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, require- ments as to public purpose and payment of compen- sation are still enforced by the express provisions of article 31(2). State's power of compulsory acquisition incor- porated in the body of the Constitution, from which "estates" alone are excluded, it would, in my opinion, to elementary canons of statutory con- be contrary struction to read, by implication, limita- in conjunction tions into entry 36 of List II, alone or with entry 42 of list III of the Seventh Schedule, or to the Constitution", deduce them and that, c too, properties excluded. from "the spirit of respect In the face of the limitations on the very t'hus It is true that under the common law of eminent domain as recognised in the jurisprudence of all civi- lized 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 pro- law shall vided for and it is further enacted that no safe- be made which takes away or abridges if made, shall be void, guards, and any such law, the words there can be no room for implication, and "acquisition of property" must be understood in natural sense of the act of acquiring property, without importing into to pay an obligation the phrase 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhang11 and Others. Patanjali Sastri C. /. • S.C.R. SUPREME COURT REPORTS 905 context and such expression authorising "acquisition of property in article 31 the provisions Clause (4) of There are legislative competence the existence of a compensation or a condition as public purpose. The entries in the Lists of to define and delimit Seventh Schedule are designed of the the respective areas of Union and State Legislatures, hardly appropriate for the imposition of implied res- triictions on the exercise of legislative powers, which are ordinarily matters for positive enactment body of the Constitution. indications itself to show entry 36 of list II does not in itself carry any obli- to pay compensation. gation acquisition a "law" article postulates of property but contravening clause (2), that is, without a public purpose or pay- ment of compensation. Similarly, clall!se (5) (b ), which excepts certain categories of "laws" from the opera- tion of clause (2), contemplates· laws being made with- out 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 implied confer a legislative power unfettered by any restrictions. laws referred ~t was suggested 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 position as to a taxing law, in regard to the source of legislative power, laws. under heads (2) and (3) of sub- clause (b) must necessarily be referable to, and derive their competence from entry 36 of List II, in so far as they purport to autho- rise 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 the interests of the community and does not represent any specific head of legislative power. And even that answer is not available clause ( 4). to Mr. Das legislative that the regard .be II7 ) .. 1952 "rhe State of Bihar v. Maharaja dhiraja 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 provisions of entry 42 in List III" must be taken 36 that the law-making power under entry could only be exercised subject to the two conditions as to public purpose and payment of compensation, entry. 42. Those both of which are referred to in words, in my opinion, mean no more than that any law made under entry 36 by a State Legislature can the Union Legislature be displaced or overridden by making a law under entry 42 of List III. Tha.t to • be put upon cannot bear the interpretation sought them by Mr. Das is clear from the fact that similar words do not occur in entry 33 of List I which confers on Parliament the power of making laws with respect to acquisition or requisitioning of property purposes of the Union. For if the restrictive condi- to public purpose and pay_ment of compensa• tions as tion are to be derived only from those words, must follow that in the absence of those words entry 33, authorising acquisition or requisitioning of property without a public purpose and a provision for compensation. No legislation suggested why parliamentary reason was requisitioning of respect conC!i- property is to be free restrictive tions while State legislation should be subject to them. The fact is that the law-making power of both Parlia- ment and State Legislatures exercised only subject to the aforesaid two restrictions, not by reason of anything contained in the entries themselves, but by reason of the positive provisions of article 31 (2), and, as laws falling under article 31 ( 4) or under articles 31-A and 31-B cannot be called in question those pre>- in a court of law for non-compliance with visions, such laws cannot be struck down as uncon- stitutional and void. Parliament can make acquisition can be It was further contended that the power to make a law under entry 42 of List III was a power coupled with a duty, because such law was obviously intended ; .. > S.C.R. SUPREME COURT REPORTS 907 for the benefit of the expropriated owners, and where the Legislature has authorised expropriation, it was also bound to exercise the power of making a law such owners laying down the principles on which should be compensated for their loss. Reliance was placed in support of this somewhat novel contention on the well-known case of Julius v. Bishop of Oxford.( 1 ) That case, however, has no application here. While certain powers may be granted in order to be exer- cised in favour of certain persons who are intended to be benefited by that account may well be regarded as coupled with a duty to exer- cise them when an appropriate occasion the power granted to a legislature to exercise arises, make a law with respect cannot be to any matter brought under that category. It cannot possibly have been intended that the legislature should be under an obligation to make a law in exercise of that power, for no obligation of that kind can be enforced by the court against a legislative body. their exercise, and on 1952 The State of Bihar v. Maharaia dhiraja Sir Kameshwar Singh of /)arbhanga and Others. Patanjali Sastri C. /. receives to which Mr. Somayya's It is includes argument based - on to him after it is passed by clause (3) of article 31, reference has been made earlier, is equally untenable. the Governor "Legislature" of a State such Legislature and that a passed cannot become a law until the Gover- nor's assent. Article 200, however, contemplates one of three courses being adopted by the Governor when a bill is presented House or Houses of Legislature : (1) to give his assent, or (2) to withhold as1sent, or (3) to reserve the bill for the consideration of the President. The first proviso, to that article deals with a situation where the Gover- nor is bound to give his !lssent and has no relevance here. The second proviso makes compul- 'Sory where the bill would, "if it became law", derogate from the powers of the High Court, but such reserva- important to note, should be made without tion, it is the Governor himself giving his assent to the bill. It is significant that the article does not contemplate the reservation (1) L.R. 5 H.L. 214.

#1952. The State of Bihar v. Maharaia· dhiraja Sir Kameshwar Singh of Darbhanga and Others. Patanjali Sastri C. /. 908 SUPREME COURT REPORTS [19521 (3). It was Indeed, in clause including thus seem the Constitution the State Legislature. thereafter, when it for Governor giving his assent and bill has become a full-fledged law, reserving the Governor consideration of the President. is prohibited from giving his assent where such reser- is made compulsory. The Constitu- vation by him tion would to contemplate only "bills" passed by the House or Houses of Legislature being reserved for the consideration of the President and not "laws" to which the Governor has already given his assent. article 31 (3) provides a special safeguard which, in order to ensure that ne> is passed by legislation hasty or unjust expropriatory a State Legislature, requires for such legislation assent of both the Governor and the President, and, to the words "law" and "legislature" make this clear, I am unable to were deliberately used is not agree with this view. The term "legislature" always used Governor, though article 168 mak.es him a component In article 173, part of instance, the word is clearly used in the sense of "Houses of legislature" and excludes the Governor. There are other provisions also where the word is used the Governor. Similarly in contexts which the word "law" is sometimes loosely used in referring to a bill. Article 31 (4), for instance, speaks of a "bill" being reserved for the President's assent "after it has been passed" by a State" and of "the law so assented to." "passed to mean "passed assented as Mr. Somayya would have to be a "bill" it understood, then, it would cease and could no longer be reserved as such. Nor phrase "law so assented to,' strictly accurate, it clear that previous portion of the the President's assent and what is reserved for he assents to is a "bill" and not a law. The phrase obviouslv refers to what has become a law after recei- Similarly, article 31(3) must, in my judgment, be understood as the Houses of the Governor" If the expression the "legislature of legislature" were the President. legislature and clause makes exclude assent - S.C.R. SUPREME COURT REPORTS 909 reference to what, in historical having sequence, having been passed by the House or Houses of the for the State Legislature and reserved by the Governor consideration of the President and assented to by If it was intended that latter, has thus become a h1w. such a law should have the assent of both the Governor to find not only and the President, one would expect a more clear or explicit provision to that effect, but reference in article 200 to also some the Governor's ·power to reserve a measure for the consideration of the President after himself assenting to it. On the other hand, as we have seen, where reservation by Governor is made obligatory, he is prohibited giving his assent. 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhang11 and· Others. Patanjali Sastri C. /. ) .. .. In the view I have expressed above that the objec- tions based on the lack of a public purpose and the failure to provide for payment of just compensation are barred under article 31(4) and are also devoid of of merits, it becomes unnecessary to consider what acquisition autho- a public purpose and whether rised by the impugned statutes subserves any public purpose. Nor is it necessary to examine whether the scheme of compensation provided for by the statutes is so illusory as expropriated owners without any loss of property. compensation to leave Turning now to the special points ansmg in parti- cular cases, it was urged by Mr. Das that section 4(b) that all arrears of of the Bihar Act, which provides rent, royalti~ and cesses due for any period prior the date of the vesting of the estates in Government "shall vest and be recoverable by the State" was un- In the first place, there was constitutional and void. the acquisition of no public purpose such property. lacked evidently illusory com- funds for accord- pensation provided ingly, acquiring hit upon arrears on payment of only 50 per cent. of value as Raising to be served by The Government the payment of even the device of the Act, section 24. provided 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh <Jf Darbhanga and Others. Patanjali Sastri C. /. 910 SUPREME COURT REPORTS [1952] acquisition that entry and the Treasury could not be regard- for augmenting ed as a public purpose such as would justify expro- priation of private property. Secondly, it was said that 'arrears' would represent so much money when realised, and money could not be the subject of com- pulsory acquisition as the obligation to pay compensa- tion would practically into a turn such forced loan. Nor could the payment of 50 per cent of the face value of the arrears be regarded as compensa- tion for the loss of the total arrears, for refund of one half of a sum of money taken away could never make good the loss of the balance. The argument proceeds on a misconception. Whatever may be the position 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 article 31. It is equally fallacious to argue that a pay- ment in cash or in Government bonds of half the the zemindar without leaves amount of such arrears It compensation for the balance. is unrealistic remained uncollected assume that arrears which had the zemindar as over a period of years during which the advantage of summary remedies and landlord had so much other facilities money or money's worth in his hands when he was to cease to he a landlord and to have no longer those remedies and facilities. When allowance is made doubtful and irrecoverable arrears and the trouble and expense involved in the collection of the rest of them the payment of 50 per cent. of the face value of entire arrears must, as it seems to me, be considered reasonable and fair compensation for taking them over. Indeed, the contention leaves one almost wondering what aavantage the zemindars would gain by seeking to overthrow a provision in the Act which may well prove beneficial to them. However tillit may be, indicated, article 31(4) bars a challenge on these two grounds, and the objections section 4(b) cannot be entertained. reasons already represented collection, • 1952 The State of Bihar v. Maharaja dhiraja Sir Karneshwar Singh of Darbhanga and Others. Patanjali Sastri C. /. S.C.R. SUPREME COURT REPORTS 911 a in ascertaining to be based. An attack was also directed against section 23 (l)(f) which provides for a deduction on a percentage basis out of the gross assets as "cost of works of benefit to the raiyats of such· estate or tenure", net assets on which compensation is It was said that there was no evidence to show that it was usual for the zemindars to such expenditure, and that the deduction was a mere contrivance to reduce the compensation payable for the acquisition of their estates. The provision for there- such deduction was the Constitution. The argument, fraud on the well-established obligation of however, overlooks the zemindars irrigation to maintain and repair tanks and channels in the villages comprised in their in The estates. As the Privy Council pointed out Madras ~ilway Co. v. Zemindar of Carvatenagaram(1), "the zemandars have no power to do away with these tanks in the maintenance of which large numbers of people are interested, but are charged, under Indian law, by reason of their tenure, with the duty of pre- serving and repairing are, obviously, the works of benefit to the raiyats of the · estate, and their cost, which the zemindars are thus under an obligation to bear, is a perfectly legitimate deduction If in computing the net assets of estate. zemindars had, in the past, neglected this duty, the deduction before does not affect the propriety of determining the compensation payable It is, therefore, idle to say that it is a mere contrivance for reducing the compensation. This apart, if, I have endeavoured to show, payment of compensation isi not a justiciable issue in the case of the impugned statutes, having regard to articles 31 ( 4), 31-A and 31-B, it is not open to the court to inquire whether a deduc- tion which results in reducing the compensation is un- warranted and therefore, a fraud on the Constitution. them". These them. Lastly, Mr. Das turned his attack on section 32(2) read with section 43(2) (p). Under the former pro- vision compensation was payable in cash or in bonds or partly in cash and partly in bonds. The bonds (1) (1874) 1 I.A. 364. 1952 The Stat< of Bihar v. Maharaja dhiraja Sir Kameshtvar Singh cf Darbhanga and Others. Patanjali Sastri C. /, 912 SUPREME COURT REPORTS ' [1952] proportion forty equal compensation the executive compensation". to be given, (2) must incapable by itself of being were to be either negotiable or non-negotiable and non- instal- transferable and were payable the State Government ments. Power was given under section 43 (2) (p) to frame rules providing shall be in which "the payable in cash and in bonds and the manner of It was argued payment of that, whik' the Constitution conferred power on legislatures under entry 42 of List III to make laws with respect to the principles on which compensa- tiop for property acquired was determined the mauner m wji.ich such com- it was compensation was petent for the Bihar Legislature to delegate this essen- tial legislative power government. Section 43 (2) (p) being thus void and inoperative, section 32 fall to the ground, being vague and effect to, <Jnd, as payment of compensation was an inextri- cable part of the scheme of acquisition under the Act, I see no force in this argu- the entire Act must go. ment. The legislature has applied to be paid and has form in which compensation has It has also provided for payment should be paid. of interest on the compensation amount in the mean- time. The proportion the compensation could be paid in cash and in bonds and the intervals deter- between the tliose must mined by the executive government necessarily depend on the financial resources of to which State and the availability of funds in the executive special means of knowledge. By no standard of permissible delegation can limited discretion by a legislature administrative body be held incompetent. The same remark applies to the delega- tion of rule-making powers in regard to payment of compensation under the other two, Acts. the number of equal instalments in which the vesting of such in an instalments have been left to be government in which its mind regard 'given It'was contended by Mr. Somayya that the Madhya Pradesh Act was not dU.ly passed as no question was third reading of the bilf, put by the Speaker, at the ' 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Patanjali Sastri C. /. • S.C.R. SUPREME COURT REPORTS 913 on the motion that it be passed into law, as required by the provisions of rule 20 (1) of the rules governing legislative business then in force, and that the omis- sion was not a mere "irregularity of procedure" which the court is barred from enquiring into under article 212 (1) of the Constitution. Rule 20 (1) reads as fol- lows: "A matter requiring the decision of the Assembly shall be decided by means of a question put by the Speaker on a motion made by a member". the Sepaker put What appears to have happened is this. One of "The C. P. and Berar. the Ministers moved (Estates, Mahals, Abolition of Proprietary Rights Alienated Lands) Bill, 1949, (No. 64 of 1949) as con- sidered by the House be passed into law". Thereupon the Speaker read the motion to· the House, and this was the measure, followed by several speeches welcoming amid general acclamation in the House, as a great boon to the tillers of the soil. The official report of the pro- ceedings prepared by the Secretary under rule 115(1), however, did not record that question in the usual form : "The question is etc." and that the motion was carried. It was argued that the official report being the only "authentic record of t11e proceedings of the Assembly" under rule 115(2), it must be taken to be the House and carried by the motion was not put to it. There is, in my opinion no substance the objec- tion. The original Bill signed and authenticated by the Speaker was produced before us, and it contains an endorsement by the speaker that the Bill was pass- ed by the Assembly on 5th April, 1950. The endorse- ment was signed by the Speaker on 10th May, 1950. The official report of the proceedings appears to have been prepared on 21st June, 1950, and was signed by the Speaker on 1st October, 1950. When he signed the report the Speaker did not apparently omission as to tf:te motion having been put and carried . Such omission cannot, in the face of the explicit state- ment by the Speaker endorsed on the Bill, be conclusively established notice II8 .. - 1952 The State of Bihar v. Maharaia dhiraja Sir Kameshwar Singh of Darbhanga and Others. Patanjali Sastri C. /. 914 SUPREME COURT REPORTS [1952] to establish that the Bill was not put to the House and In any case; the omission carried by it. motion formally to the House, even if true, was, in the circumstances, no more than a mere irregularity of procedure, as it is not disputed that the overwhelming majority of the members present and voting were favour of carrying the motion and no dissentient voice was actually raised. to put the result ,Advocate-General further contention Mr. Somayya raised a 31-A It was regard to the malguzari lands covered by the Madhya Pradesh Act, articles 31-A and 31-B could be of no assistance to the Government, as such lands are not "estates" within the meaning of clause (2) of article 31-A with the objection based on article 14 as to discrimination in the matter of pay- ment of compensation must prevail. It will be recalled that the High Court of Patna held the Bihar Act un- in providing for constitutional as being discriminatory payment of compensation, and it was to overcome that difficulty that articles and 31-B were inserted in the Constitution. conceded by the learned 'Madhya Pradesh these malguzari lands could not be · regarded as estates within the meaning of in Madhya Pradesh, with the Tenancy Acts in force but he contended that, inasmuch as article 31-B pur- ported to validate specifically the Madhya Pradesh Act among others, and as that article was not limited in its application to estates, the objection could not prevail. Mr. Somayya, however, submitted opening words of article 31-B, namely, "Without prejudice to the generality of the provisions contained in article 31-A" showed that the mention of parti- the Ninth cular statutes in article 31-B read with accordingly, and that, Schedule was only illustrative, article 31-B could not be wider scope. Reliance the deci- was placed in support of this argument upon in Sibnath Banerji's case('). sion of the Privy Council I cannot agree with that view. There is nothing in article 31-B to indicate that the specific mention of (!) [1945] F.C.R. 195 (P.C.) article 31-A 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhang~ and Others. Patanjali Sastri C. J. S.C.R. SUPREME COURT REPORTS 915 illustrate only intended certain statutes was application of the general words of article 31-A. The opening words of article 31-B are only make clear that article 31-A should not be restricted in its application by reason of anything contained in article 31-B and are in no way calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition of " estates. " The decision cited affords no useful analogy. intended to be the "private property" of In some of the cases the estates sought to be acquir- ed are situated in what was previously the territory of rulers. On Indian States and belong to their former the merger of those States in Madhya Pradesh or Uttar Pradesh, as the case may be, by virtue of the "covenant of merger" entered into between the rulers and the Government of India the properties in question were recognised Rulers. In these cases it was urged that estates sought to be acquired formed part of the Rulers' "per- instrument sonal rights" guaranteed to them under impugned statutes nor of merger, and that neither the notifications· issued thereunder could deprive article Ruler of such properties in contravention of 362. The Attorney-General had several this argument, including the bar under article 363 to interference by courts in disputes arising out of agree- ments, covenants, etc., by Rulers of Indian States which the Government of India was a party. But a short and obvious answer contravention assurance covenant of given by merger, as "private property" of be acquired otherwise. The compensation the Rulers and not provided for, such as it is, is in recognition of their private proprietorship, as in the case of any other owner. There is, therefore, no force in this objection. In Appeal No. 285 of 1951 preferred by the Raja of Kapurthala, where a similar objection was was further alleged that the privy purse of the Ruler was fixed at a low figure in consideration of the Oudh the Government under in question are the estates guarantee there was answers sought raised, 4-10 S. c. India/71 1952 The State of Bihar v. Maharaja Jhiraja Sir Kamcshwar Singh of Darbhanga and Others. Patanjali Sastri C. /. 916 SUPREME COURT REPORTS [1952) that its compulsory Estate being left to be enjoyed by him as his plivate property, and taking over would deprive him of the means of discharging his liability to maintain abse!Jce of any material to establish allegation calls for no· consideration. the members of his family. In facts, Certain other minor points were also raised in some of the cases but they are ·not worth mentioning as ,they proceeded either on a misapprehension or were palpably unsound. Thus all the objections raised to the constitutional the Madhya Pradesh Act validity of the Bihar Act, and the Uttar Pradesh Act or any part and are overruled. thereof MAHAJAN J.-This is an appeal under article 132(3) of the Constitution of India from a judgment of the Full Bench of the High Court of Judicature at Patna, dated the 12th March, 1951, whereby the High Court declared the Bihar Land Reforms Act, 1950, ultra vires on the ground of its infringement of article 14 of the Constitution, but decided against respondent on all other points. introduced intituled On the 30th December, 1949, a Bill Bihar Land Reforms Bill was Legislative Assembly qf Bihar and was passed by both the Houses of Legislature, and after having been reserved for the consideration of the President of India, received his assent on the 11th September, 1950. the Bihar Government The Act was published Gazette on the 25th September, 1950, and on same day a ·notification under section 1 (3) of the Act the Act would come was published declaring that a notification under section 3 of the Act was published stating that the estates and tenures belonging to and became respondent and two others passed vested in th~ State of Bihar under the provisions of the Act. The respondent filed a petition in the High Court of Judicature at Patna under article 226 of the Constitution, challenging constitutionality of immediately. On day, •• • .. - • 1952 The State of Bihar v. Mahara7a dhiraja Sir I<.ameshwar Singh of Darbhanga and Others. Mahajan /. S.C.R. SUPREME COURT REPORTS 917 to be issued on acting said Bihar Land Reforms Act and praying fur a writ in the nature of mandamus the State any man- of Bihar restraining ner by virtue of, or under said Act. This application was heard along with three title suits and other similar applications filed by various zemindars of Bihar by a Special Bench of the High Court. By three separate but concurring judg- ments, the Court declared the Act to be unconstitu- tional and void on the ground of its infringement of fundamental right under article 14 of the Constitution. the provisions of, The validity of tl1e Act was attacked before High Court on the following grounds :

#1. That the Bihar Legislature had no competence to pass it.

#2. That it contravened clause (I) of article 31 of the Constitution.

#3. That the vesting of the estates in the State of the Act being in effect an acquisition of that acquisition was not compen- Bihar under the estates, it was invalid as for a public purpose and the provision sation was illusory.

#4. That it contravened article 19(1) (f) of tht' Constit, ution.

#5. That some of its provisions were the ground of delegation of legislative powers. invalid on

#6. That it was a fraud on the Constitution. 7. That it was unconstitutional as contravened article 14 of the Constitution. The Court held as follows :- 1. That the Bihar Legislature was competent enact the legislation.

#2. That the Act did not contravene article 31(1) of the Constitution.

#3. That the acquisition of the estates and tenures was for a public purpose.

#4. That the subject-matter of the Act fell under article 31 ( 4) of the Constitution. 1952 The State of Bihar v. Maharaja· Jhira7a Sir Kameshwar Singh of Darbhanga and Others. Mahajan /. 918 SUPREME COURT REPORTS [1952]

#5. That article 19 (1) (f) had no application.

#6. That whatever powers were delegated executive were permissible. ;

#7. That the Act was not a fraud on the Constitu- tion.

#8. That the Act was unconstitutional as it contra- vened article 14 of the Constitution. appeal a Bill against impugning this was passed by the During the pendency of the decision of the High Court the Union Government with a view to put an end to the litigation of zamindars brought to amend forward Constitution and requisite majority as the Constitution (First Amendment) Act, 1951. The zamindars brought petitions under article the Amendment 32 of the Constitution Act itself as unconstitutional and void. All petitions were disallowed by this Court on the 5th October, 1951, and it was held the Constitu- tion (First Amendment) Act, 1951, had been validly In view enacted. argu_ment regarding the prov1s1ons Bihar Act based on the ground 31 of that Act of the Constitution does not survive and the Act not open to challenge on any such ground. As Act has been held' invalid by the High Court solely on the ground that it violated the provisions of article 14 judgment declaring of the Constitution, the basis of the the Act to be unconstitutional is no tenable and it has therefore to be reversed in case this Court agrees with the decision of the High Court oii points decided against the respondent. the Amendment Act the unconstitutionality of contravened articles 14, 19 or longer frankily Mr. P. R. Das for the respondent conceded that no objection to the validity of the Act at stage could be raised on the ground that it contra- vened any of the provisions of Part III of the Con- stitution. He, however, supported the decision of Court on grounds decided against him by that Court and urged the following points :- - S.C.R. SUPREME COURT REPORTS 919

#1. That it was not within the competence of Bih'\r State Legislature to enact the impugned Act.

#2. That the acquisition of the estates not being for public purpose, the Act was unconstitutional.

#3. That the legislative power in various sections of the Act has been abdicated in favour of the executive and such abdication of power was unconstitutional.

#4. That the Act was a fraud on the Constitution and that certain parts of the Act were unenforceable on account of vagueness and indefiniteness. 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan/. The foundation of Mr. P. R. Das's attack on the vires of the Act mainly rests on the contention that it is implicit within the language of entry 36 of List II of the Seventh Schedule of the Constitution that pro- perty could not be acquired without payment of com- pensation, the only effect of a compulsory power of acquisition against the to sell and convey property the power to oblige him that the when the public necessities require power to take compulsorily raises a is a con- right to payment ; in other words, comitant obligation to pay and the power to acquire to pay compen- the obligation the provisions of the statute in respect sation and as illusory, it is uncon- of payment of compensation are stitutional. individual being that there inseparable from implication it, but fundamental As regards article 31 (2) of the Constitution, it is re- said that it deals with is expressed in the clause in garding property which In entry 36 it is expressed in an negative language. affirmative form. The provisions of articles 31(4) and the expropriated though they deprive 31-A and 31-B, proprietor of his rights provided in Part III of Constitution, do not in any way affect the ambit of entry 36 and empower the State Legislature to make a law for compulsory acquisition of property without payment of compensation in the true sense of that term. laid on the words "subject to the provi- Emphasis sions of entry 42" contained contended that the exercise of legislative power under in entry 36 and it 1952 The State of Bihar v. Maharaia dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mshajan /. 920 SUPREME COURT REPORTS [1952] entry 36 is conditional on exercise of power under entry 42, that one could not be exercised without the other and that the power conferred by the two entries had to be construed on the assumption that the acqui- It is further contended that sitiop. was to be paid for. the legislative power in entry 42 is a power coupled with dnty which the legislature was bound to exercise for the benefit of the person whose property was taken in exer- cise of the legislative power under entry 36. is also legislated both that the Bihar Legislature had under entry 36 and entry 42 and intended to take the property conditional on payment of compensation but if it transpires that the provisions it has made about payment of compensation are illusory, then that part of the Act would be void and as it could not have been intended by the legislature to pass truncated form in which it would remain if the provi- sions regarding compensation are taken out of it, the whole Act should be held unconstitutional. the Act It To appreciate the contentions raised by Mr. Das on the Bihar Legisla- the question of the competence of ture to enact the Bihar Land Reforms Act, 1950, it is necessary to refer to its provisions and to see on what subjects the legislature has purported law. to enact • constitution of The title of the Act indicates that the law provides for some kind of land reform in Bihar. Its preamble gives no indication as to the nature of these reforms a except that it provides for Land Commission to advise the St:ite Government on expression may the agrarian policy, whatever mean. The dominant purpose of the Act is that of transference to the State of the interests of proprietors and tenure-holders in land and of the mortgagees and lessees of such interests including the interests in trees, jalkars, ferries, huts, bazars, mines forests, fisheries, and minerals. Section 3 provides that the Government may, from time to time, by notification declare estates or tenures mentioned therein to have passed and become vested in the State. Section 4 mentions It enacts that the the consequences of such vesting. • 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan /. S.C.R. SUPREME COURT REPORTS 921 subsoil including absolutely tenure-holder the proprietor or discovered in any interests of building or part of a building comprised in such estate or tenure and used primarily as office or cutchery for the colletion of rent of such estate or tenure, and his interests in trees, forests, fisheries, jalkars, huts, bazars, and ferries and all other sairati interests as also his rights interest in or undis- mines and minerals, whether inclusive covered, or whether being worked or not, of such rights of lessee of mines and minerals, com- prised in such estate or tenure (other than the interests of raiyats or under raiyats) shall vest the State free from all incumhrances. Clause (b) pro- vides that all arrears of rents, including royalties and all cesses together with interest, if any, due thereon for any period prior to the date of vesting, which were re- coverable in respect of the estates or tenures of the proprietor or tenure-holder and the recovery of which was' not barred by any law of limitation shall vest in, and be recoverable by, The expression "arrears of rent" includes arrears in respect of which suits were pending on the date of vesting or in respect of which decrees whether having the effect of decree or monev decree were obtained before the date of such vesting -and had not been satisfied and were not barred by In other words, all outstand- allowed by such decrees. i11gs in the nature of rents tenure-holders before were due to the proprietors or tJ1e date of vesting and before the State had any right, :itle or inkn.:st in the estate would also it. ·rhis seems to be a peculiar and rather extraordinary consequence of the vesting of an estate. Normally it has no relation to and cannot be regarded as an inci- The clause dent of the transference of tlie laying down is m effect an tenure-holder that monies due to during the period not realized by him but which were in the course of realization, whether by private effort or by means of pending suit~ or decree~ including the costs of those estates. independent provision the proprietor or antecedent limitation and also includes rent decrees the vesting the State. 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh <Jf Darbhanga and Others. Mahajan /, 922 SUPREME COURT REPORTS [1952] in the forfeited recovery of tenure. Section 5 permits to do for the management of the State. suits and decrees will stand In clause ( c) the liability of the proprietors or tenure- holders for payment of arrears of revenue and cesses to th.e Government prior to the date of vesting is kept alive. The other consequences of vesting are that no suit can be maintained for any money from a proprietor or tenure-holder which is secured by a mortgage or charge on the estate and no such estate or tenure covered by liable to attachment. the Act is The Collector is entitled to take charge of the estate and to inspect the documents and accounts which he thinks necesisary the proprietors estate or and tenure-holders their homesteads but retain only in the capacity of tenants free from the obliga- tion to pay rent. Section 6 allows to retain possession of lands in their khas possession or in the possession of lessees under them, on payment of status of occupancy as raiyats to the State tenants. Section 7 provides that buildings together with lands on which such buildings stand and in the possession of proprietors and tenure-holders and used as golas, factories or mills shall be retained by them on payment of rent. Section 8 gives a right of appeal In to a party aggrieved against the Collector's order. section 9 it is provided that all mines comprised the estate or tenure as were in operation at the com- mencement of this Act and were being worked directly by the proprietor or· tenure-holder shall he deemed to have been leased by the State Government to the pro- prietor or tenure-holder. This section does not include within its scope mines on which considerable money might have been spent but which are actually not m operation. An artificial definition has been given m section (2) sub-clause (m) to the expression "mines in operation" as, meaning mines regarding the working of which notice has been served on Government under the Indian Mines Act. Section 10 keeps alive subsis- ting lease of mines and minerals, lessee being deemed to be a lessee under the Government. Build- ings and lands appurtenant to a mine stand transferred 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga 11nd 0 thers. Mahajan /. S.C.R. SUPREME COURT REPORTS 923 section tenures Section that vest m the procedure constitution of 11 and to the State under the provisions of they are to be deemed to be leased by the State to the lessee with effect from the date of vesting. Section 12 lays down the a Mines Tribunal. Section 13 provides for the management of the estates the. State. Sections 14, 15, .and 16, 17 and 18 make provisions relating to the investi- gation of debts of proprietors and tenure-holders and those debts. Jay down the procedure for payment of In section 19 prov1SJon 1s made for the appointment are given of compensation officer. Certain directions in sections 20 and 21 regarding to be adopted by the pro- the compensation officer when prietor has only a certain share in an estate and where certain trusts have been created by tenure-holder <lr proprietor. agn- cultural year" and assets" with "Gross reference to a proprietor or assets" in the Act means the aggregate of including all cesses, which were payable in respect of the estates or tenures of such proprietor or tenure- holder for agricultural vear, whether raivats. or · the payable by a subordinate tenant assessment of Certain details are laid down for those rents. 1s also included the gross mcome of the prev10us agricultural year from fisheries, trees, jalkiars, ferries, huts, bazars .and forests has to be calculated on the basis of the average gross agricultural years pre- annual income of ceding the agricultural year in which the date of vest- mg falls, which in the opinion of a forest officer, the had been placed forests would have yielded if during the management of the State. said period of twenty-five years under interests. Gross mcome 22 the phrase In the exprnss1on the prevwus tenure-holder. "gross assets" twenty-five "previous defines "gross sairati It provides Section 23 lays down the method of computation of that the net mcome of a computed by the gross asset of such proprietor or net income. proprietor or deducting from tenure-holder, as the case may be, the following :- tenure-holder .. (a) any sum payable as land revenue or rent; 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan f.

#924. SUPREME COURT REPORTS [19521 (b) any sum payable by such proprietor as agri- any agricultural tenure respect of estate or income-tax cultural income derived from such previous agricultural year ; ( c) any sum payable by such proprietor or tenure holder as income-tax in respect of any income derived from such estate or tenure, other than royalties for the previous agricultural year ; (d) any sum payable as chaukidari tax or muni- cipal tax ; ( e) cost of management of such estate or tenure at rates varying from five to twenty per cent. accord- ing to the amount of the gross asset The lowest limit fixed is at Rs. 2,000, and the highest at any amount exceeding Rs. 15,000. actually can hardly have These rates appear to have been fixed in an arbitrary manner bearing no relation whatsoeyer to the actual cost of management. To illustrate, in the case of the estate has a gross Maharaja of Darhhanga whose income of nearly forty-eight lakhs, the cost of manage- ment, according this calculation, would work out to a sum of nine an<l a half lakhs, which on the face of relation it looks starting; to the costs The expense ratio incurred. under the head "management would ordinarily be lowest for the higheH gross income. It goes up m proportion the reduction in the amount of gross income. The Act has, however, rule of economics with the result that part of the money that for determining compensation would be payable by way of compensation proprietor or artificial reduction .of (f) the net provides for deduction from the gross assets of cost of works of benefit to the raiyats of such est2tes or tenures at rates varying from four to twelve and a haif per cent., applicable where the gross asset doos not exceed Rs. 5,000, and the rate of twelve and a half per cent. being applicable if the gross asset exceeds Rs. 25,000. is obvious income. Clause the rate of four per cent. being the principles stated stands forfeite<l tenure-holder reversed It ' ' . -' 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan/. - - S.C.R. SUPREME COURT REPORTS 925 a confiscatory character. that the calculation of the cost of works of benefit to the raiyats at a flat rate without any reference to the actual expenses that might have been incurred It arti- is a provision of ficially reduces the net income which the basis of the assessment of compensation. The last clause (g) of this section allows deduction of any other tax or legal imposition, payable in respect of such estate or tenure not expressly mentioned in the earlier clauses. Section 24 provides the manner of determination of the compensation payable to the proprietor or tenure- It lays down a sliding scale for the assessment holder. income does not of compensation. Where the net exceed Rs. 500, the compensation payable twenty times the net income and where the net income com- puted exceeds Rs. 1,00,000, it is payable at three times the amount. The compensation in such cases is merely In the case of the Maharaja of Darbhanga, nominal. the estate acquired also comprised land purchased by him by spending about a crore of rupees and also com- to the tune of half a crore. All these pri.<Jed mortgages, inherited zemindari~ of amounting compen- sation payable is ne:1rly a sum of Rs. 9,00,000. This section further provides that payable shall be added the amount of fifty per cent. of ~he arrears of rent referred to in clause (b) of sec- of rnmpensation paya- tion 4 along with as determined ble in respect of mines and minerals under section 25. The section also lays down method of assessment of compensation in the case of persons who have only a share in the zamindari or have other minor interests in the tenures or estates where i-he estate or tenure is held in the trust etc., or where they In the case of mines and are of an impartible nature. minerals the method of assessment is section 25. It has either to be fixed by agreement or by a tribunal appointed for the purpose. The subse- quent section~; provide for the preparation of compen- sation roll and for hearing of appeals etc. Section 32 arrears of to Rs. 30,00,000, while the along with in the Bihar State the Maharaja the amount laid down amount 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh <Jf Darbhanga and Others. Mahajan /. 926 SUPREME COURT REPORTS [1952] be payable therein the perrnn named lays down the method and manner of p~yment of compensation. Sub-section (2) of this section enacts that the amount of compensation shall be paid in cash or in bonds or part! y in cash and partly in bonds. The bonds shall be eitl-ier negotiable or non-negotiable and non-transferable and forty equal instalmen~s to carry interest at two and a half per cent. per annum with effect from the date of issue. Any disputes about tenure compensation between holders have to be determined by a tribunal appointed the State Government. Section 34 provides for the constitution of a commission the Bihar Land Commission. The other provisions of the Act are of a miscellaneous character and require no special mention. the State section Government to make rules for carrying out the pro- visions of the Act. proprietors or authorizes called The the Act From this survey of it appears law enacted might be taken to relate to several items in the legislative lists, i.e., rights in or over land and tenures, forests, fisheries, mines and minerals, acquisition of property and also principles on which compensation for property acquired deter- legislation mined. The pith and substance of however, in my opinion, is the transference of owner- ship of estates to the State Governmeru within the ambit of entry 36 of L>st II. There is no scheme of land reform within the framework of the statute except that a pious hope the commission may produce one. is expressed that The Bihar Legislature was make the law on the subject of transference of estates 1s con- stitutional. legislative head to be the Act as competent transfers certainly regards The Act further deals with the realization of arrears of rents due before the date of vesting of the estates to the zemindars and forfeits fifty per cent. of such realization to the State exchequer. It also in an in- direct manner forfeits the State exchequer part of compensation money which would have been payable S.C.R; SUPREME COURT REPORTS 927 to the proprietors or tenureholders if the net income was not reduced by deduction from the gross income of items of artificial nature which have no relation to these provlSlons will any actual Both in my opi- be separately dealt with hereinafter as, is uncon- nion, stitutional. the enactment of these provisions expenses. Having held that the Bihar Act is constitutional as regards transfer of estates to the State and that this is mainly an enactment under legislative head 36 of Lis:t II, it is convenient now to examine the conten- tion of Mr. Das to the effect that in the contents of legislature by this entry the power conferred on their exists a concomitant obligation to pay compen- sation and that as the provisions regarding payment of i:s unconstitutional compensation are that article 31 ( 4) of the Constitution does not afford any protection against this attack. the Act illusory, 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga, and Others. Mahajan/. .. compulsory implication a For a proper appreciation and appraisal of the pro- position of Mr. P. R. Das that the obligation to pay compensation is implicit in the language of entry 36 of List II of the Seventh Schedule and that the power to take compulsorily raises right to payment, the power to acquire being inseparable from the obligation to pay compensation, it is necessary to examine briefly the origin of the power of the State on acquisition of property. the subject of This power is a sovereign power of the State. Power exercised to take property for public use has been since olden times. Kent speaks of it as an inherent sovereign power. As an incident to thi,<; power of the State the requirement that property shall not be taken for public use without just compensation. Mr. Broom in his work on Constitutional Law says, "Next in degree to the right of personal liberty is that of enjoying private property without undue interference that property or molestation, and shall not be taken for public use without just compen- sation is but an aflirmance of the great doctrine esta- blished by the common law for the protection of pri- vate property. It is founded in natural equity and is requirement 928 SUPREME COURT REPORTS (1952] 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh -0/ Darbhanga and Others. Mahajan f. laid down as a principle of universal words of Lord Atkinson Cannon Brewery Co. Ltd. ('), compulsorily raises by ment. law." in Central Control the power· implication a In the Board v. to pay- On the continent the power of compulsory acqms1- tion is described by the term "eminent domain". This term seems to have been originated in 1625 by Hugo Grotius, who wrote of this power in his work "De Jure Belli et Pacis'' as follows : is under "The property of subjects the eminent domain of the State, so that the State or he who acts for it may use and even alienate and destroy extreme necessity, property, not only in the case of in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed that private should give way. But it is to be added that when this is done the State is bound to ·make good the loss to those who lose their property." to have intended The relationship between the individual's right compensation and the sovereign's power condemn in Thayer's Cases on Constitutional Law is discussed (Vol. I, p. 953) (mentioned on page 3 of Nichols on Eminent Domain) in these words .:- individual. On "But while this obligation thus well established and clear, let' (to make compen- sation) it be particularly noticed upon what grounded it stands viz., . upon the natural rights of the otht;.r hand, the right of the State to take springs from a different source, viz., a necessity of government. These two, therefore, have not the same origin ; they do not come, for instance, from any implied watract between the State and the individual, that the former shall have the property, if it will make compensation ; the right is no mere right to pre-emption, and it has either no condition of compensation annexed precedent or subsequent ; but there is a right to take, it: ( 1 ) [19191 A.C. 744. • 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan J, S.C.R. SUPREME COURT REPORTS 929 and attached to it as an incident, an obligation make compensation ; follows distinct from it, and flows from another source." speaking, the other indeed like a shadow but it is yet latter, morally ~horn of all its incidents,· the simple definition of acquire compulsorily or of the power "eminent domain" the power of the sovereign to take property for public use. without the owner's con- irreducible sent. The meaning of the power in terms is, (a) power to take, (b) without the owner's consent, ( c) for the public use. The concept of public use has been inextricably related to an appro- is considered essen- priate exercise of the power and Payment of tial in any statement of its meamng. ingredient of compensation, though not an essential is an essential element the connotation of Courts have of the valid exercise of such power. defined "eminent domain" so include universal J imitation as an essential constituent of support of the meaning. Authority is universal m amplified definition take property for public power of the sovereign to use without the owner's consent upon making com pensa ti on. "eminent domain" term, It is clear, . therefore, that the obligation for pay- ment of just compensation is a necessary incident of acquisition of property, the power of both under the doctrine of the English Common Law as well as under the continental doctrine of eminent domain, subsequently adopted in America. compulsory to pay The question is whether consideration compensation obligation compulsory acquisition of property has been impliedly laid down by the constitution makers in our Constitution under legislative head in entry 36 of List II and entry 33 of List I, or whether this all important obligation which follows ocmpulsory acquisition as a shadow has been put in express and clear terms somewhere else in the Constitution. To my mind, our Constitution has raised this obligation to pay compensation .~. 1952 The State of Bihar v. Maharafa· dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan /. 930 SUPREME COURT REPORTS [1952) ' a (2) to pay the obligation it in article 31 It did not leave the matter a compulsory acquisition of property to the status of. fundamental right and it has declared that does not make provision for payment of compen- sation shall be void. learned arguments at be discovered and spelt out by the Bar from out of the contents of entry 36 ; they explicitly provided for Constitution. As made a compulsory part of a statute that purports to legislate under entry 33 of List I and entry 36 of List II, it is not possible to accede to the contention of Mr. P. R. Das that the duty to pay compensation . I is a thing inherent in agree with the tlY.: concept of acquisition and that of compensation two different notions having their origin in different the sovereign power of is founded on sources. One the State to take, the other is based on the natural right of the person who is dqirived of property to be take, compensated for his loss. One is the power the other is the condition flor tl1at entry 36, power. Power to take was mentioned the exercise of· that power was embodied in article 31 (2) and there was no duty to pay compensation implicit in the content of entry itself. the exercise of learned Attorney-General language of <;l).try 36. the condition for however, Reference m this connection may be made to the Government of India Act, 1935. By section 299 of the power of that statute a fetter was imposed on legislation itself. The Constitution, de- clared laws not providing for compensation · as void and it not only placed a fetter on the power of legis. lation but it guaranteed the expropriated proprietor a remedv in article 32 of the Constitution for enforce- I am therefore of the opinion that Mr. Das is not right in his contention that unless adequate provision is made by a law en- acted under legislative power conferred by entry 36 of List I for compensation, the law is unconstitutional as entry 36 itself does not authorize the making of such a law without providing for compensation. Then of his fundamental right. 0 ,, 1952 Thi: Stati: of Bihar v. Maharaja dhiraja Sir Kami:shwar Singh of Darbhanga and Others. Mahaian /. S.C.R .• SUPREME COURT REPORTS 931 illusory), and because it was said that entry 36 of List II was linked up with the words "subject entry 42 of the Concurrent List by to" occurring therein and that the validity of any legislative power under entry 36 mad<'. in exercise of the simultaneous exercise of was conditional on legislative power under entry 42 has been no valid exercise of this power (the pro- visions of the impugned Act regarding the determina- legislation tion of compensation being In my opinion, this contention under entry 36 fails. is unsound. The two entries referred to merely heads of are neither inter- legislation It is dependent nor complementary to one another. by force of the provisions of article 31 (2) that it be- comes obligatory to legislate providing compen- sation under entry 42 of the Concurrent List in order to give validity to a law enacted under entry 36 and not by reason of the use of the words "subject to" in the wording of the entry. No such words occur It cannot reasonably be entry 33 of the Union List. that Parliament could make a law for com- argued pulsory acquisition of property for hs purposes with- out fulfilling the condition of making a law under entry 42 of the Concurrent List, but a State Legis- lature in this respect is in a different situation. Such a contention, in my opinion, is untenable. The only purpose of entry 36 is to indicate that legislation under entry 36 would be subject exercise of its legislative power under entry 42 of the Concurrent List. Both legislatures can legislate under entry 42 but exercise of powers under this entry would have pre- ference over a State law in case of repugnancy and it was for this reason that reference was made to entry 42 in the head of legislation mentioned in the State List under entry 36. whenever a law is made by a State Legislature in exer- cise of its legislative power under entry 36, the provisions of a Parliamentary will be subject to legislative powers statute made under entry 42 of the C'nncurrent List. In other words, it only means to any law made by Parliament the Parliamentary in exercise of statute made the words occuring "subject to" 5-10 S. C. Tndiaf71 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan/. 932 SUPREME COURT REPORTS [1952] exercise the benefit of Lastly, it was urged legislative power conferred in entry 42 of the Concurrent List is a power the expropriated owner conferred for and that the legislature power for his benefit whenever it takes property under its compulsory powers, in other words, it was that the power conferred by the entry was coupled with a duty to exercise it. Reference was made this connection to the observations of Lord Cairns in Julius v. Bishop of Oxford(1). The principle of decision is that where power is conferred in the nature of a trust there is an obligation to exercise it for the benefit of the cestui que trust. These o.bservations do not have any apposite application to the case of legis- constitution. The lative powers entries in the lists are merely legislative heads are of an enabling character. Duty to exercise legis- in a particular manner cannot be lative power and If the argument read ·into a mere head of legislation. of the learned counsel was sound, then it would be open to this Court to issue a mandamus to the legis- lature legislation under entry 42, if it failed to do so. Mr. Das, when faced with this question, had to admit that he could not seriously contend that a legislature could be directed to enact a statute if it did not wish to do so. Failure to make a law under entrv 42 cannot make a Ii1 my opinion, the decision made under entry 36 bad. in the case of Julms v. Bishop of Oxford(') has no relevancy to the matter before us. power of conferred exercise a The crucial point for determination in these appeals ( 4) of to discover the extent to which article 31 h the Constitution or the new articles 31-A and 31-B of his rights or remedies in respect of this matter and of the guaranteed right to get property acquired. Article 31(4) is in these terms:- expropriated proprietor compensation deprived "If any Bill pending at this Constitution in the legislature of after it has been passed by (1) (1880) 5 App. Cas. 214. the commencement of a State has, such Legislature, been ' .~ S.C.R. SUPREME COURT REPORTS 933 reserved for the consideration of · the President then notwithstanding any- ' has received his thing 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) ." assent, Articles 31-A and 31-B are in these terms:- "31-A. (1) Notwithstanding anything in the fore- going 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 ground that it is inconsistent with, or takes away or abridges any of the rights conferred pro- visions of this Part : 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan/, Provided that where such the Legislature of a State, Article shall not apply having been reserved for dent has received his assent. is a law made by provisions thereto unless law, the consideration the Presi- (2) In this article- 'estate' shall ( a) the expression local area have the same meaning as ex- pression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include any jagir, inam or musafi or other similar grant; relation 'rights', (b) the expression estate, shall include any rights vesting in a proprietor, tenure-holder or sub-proprietor, other intermediary respect of land revenue. and any rights or privileges proprietor, relation 31-B. 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 even to have become void, on the ground that such Act, 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 jmlgment, decree or order of any court or tribunal 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan f. 934 SUPREME COURT REPORTS [1952] to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent legislature to repeal or amend it, continue in force." a condition precedent The language of article 31 ( 4) that when a Bill has received In my opinion, the provisions of is unequivocal in its terms and states assent of the President according the procedure prescribed in article 31(3) and (4) then, notwithstand- ing 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). In order to determine the scope of this clause, it is necessary to determine what are the specific provisions of clause (2) which clause ( 4) makes unjusticiable. A strict construction has to be placed on the language of this clause, it being in the nature of a debarring pro- sub-clause vision. (2) made unjusticiable by clause (4), to the relate determination and compensation. The payment of whole purpose of the clause is to make the obligation to pay compensation The words compulsory acquisition of property. "unless" are merely the clause preceding the word descriptive of the law, the validity of which would be there was no provision for determina- questionable if tion and for payment of compensation for the property taken in its contents. The use of the word "such" fully supports The mandate of the clause is that such a law must contain a provision for payment of the expropriated the Oxford Dictionary, proprietor. According "Provision" when (Vol. 8, p. 1526) used in statutes, has reference to what is expressly provided really ( 4) express provisions of article 31 (2) relating payment of compensation will not be a justiciable issue. It has no reference to anything that may be implied within the language of that clause. The existence of a "public purpose" is undoubtedly an implied condition of exercise of compulsory powers of acquisition by does A not State, but compensation expression the language of article 31(2) this interpretation. therein. contravention article What 31 .. J .. ~ 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan/. S.C.R. SUPREME COURT REPORTS 935 is not valid because expressly make it a condition precedent to acquisition. It assumes that compulsory acquisition can be for a "public purpose" only, which is thus inherent in such acquisition. Hence article 31(4), in my opinion, does inquiring not bar the jurisdiction of the court from whether the law relating to compulsory acquisition of property is not being made for a public purpose. This is also the view taken by the learned Judges of the Patna High Court. The sovereign power to acquire property compulsorily is a power to acquire it only for a public purpose. There is no power in the sovereign to acquire private to private persons. property Public purpose the power itself. Reference in be made Willoughby's Constitutional Law (page 795). Therein it is stated. a content of connection may the acquisition in order to give "As between individuals, no necessity, however great, no exigency, however imminent, no improve- ment, however valuable, no refusal, however unneigh- bourly, no obstinacy, however unreasonable, no offers of compensation, however extravagant, can compel or require any man to part with an inch of his estate." expression "eminent domain" Public purpose is an essential ingredient in the very definition of given by Nichols and other constitutional writers, even though obligation to pay compensation is not a content of the definition but has been added to it by judicial to acquire interpretation. The exercise of the power compulsorily is conditional on the existence of a public purpose and that being so, this condition is not an aliunde express provision of article 31(2) but in the content of the power itself and that in fact is the assumption upon which this clause of the article proceeds. exists -. this discussion The result of of article 31 ( 4) article 31 (2) and courts cannot examine extent or pensation contained limited to the express provisions of prov1S1ons of com- dealing with the adequacy of in any either 1952 The State of Bihar v. Mahara;a dhiraia Sir Kameshwar Singh of Darbhanga and Others. Mahajan/. 936 SUPREME COURT REPORTS [1952] acquisition of property compulsorily for public purpose but the barring provisions of article 31(4) <lo not in any way touch the powers of the court to see whether the acquisition has been made for public purpose. The provisions of this clause also Jo not take away court's power to examine whether the legislature that made the law has acted in exercise of its law making power within the lists or has merely made some other law though it has ostensibly exercised its powers under a certain legislative head which cannot be used to support the legislation. As regards the new articles 31-A and 31-B, merely place beyond the reach of the c;ourt any enact- ment dealing with compulsory acquisition of property infringe any of the provisions of Part III which may of the Constitution ; in other words, article 13(2) of the Constitution cannot be called in aid to impugn the validity of such statutes. Having determined the scope of article 31 ( 4), it is impugned now convenie11t protection given by :i.rticle 31 (4) statute. examine to the extent it may, challenge purely the law under the Constitution Mr. Das is to a great extent right in his contention -the point was not seriously challenged by the learned Attorney-Gcneral,-that the matter of compensation is highly unjust or inequi- table to certain persons and in certain matters, compensation in some cases illusory. Be that as express prohibits an enquiry in a court of matters. The same Constituent Assembly that provi- ded the guarantees in article 31 (2) in respect of pay- remedy ment of .in article 32 for right, guaranteed in the case of the Bihar took awav estates it the procedure of article 31(3) and (4), compliance with which wonld be sufficient to make tbe laws valid and effective. However impugned law may be to our sense of justice, is not possible compensation and provided enforcing rcmedv othe~ zamindari substituted repugnant the· S.C.R. SUPREME COURT REPORTS 937 It is for the question of for us to examine its contents on quantum of compensation. the appropriate legislature to see if it can revise some of its unjust provisions which are repugnant to all notions of justice and are of an illusory nature. The courts' hands are tied by the provisions of article 31 ( 4) and that which has been declared by the Constitution in clear not to be justiciable, cannot be made justiciable in an subject- indirect manner by holding matter which is expressly barred is contained impli- citly in some other entry and therefore open to exa- mination. None of these provisions, however, fetter into any other the power of matters the cognizance of which is not expressly taken away by the provisions of clause (4) and articles 31-A and 31-B. the court inquire 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan/. jurisdiction Therefore, the material point for determination whether the acquisition of the estates is tor any public purpose and if it be not so, the law can certainly be held to be unconstitutional. Mr. Das contended, and in my opinion rightly, that acqmre private property by legislation can only be exercised for a public purpose. It may be the purpose of the Union, or the purpose of the State or any other public purpose. Private property cannot be acquired a private purpose. The right to legislate under entry 36 postulates the existence of a public purpose and the contention is that there was no public purpose behind the High Court the Act. The learned Judges of negatived this conten.tion on the ground that the ques- tion whether there was a public purpose in support of the acquisition of the estates had been by implication decided by therefore the Court could not go into this matter. Shearer J. said as follows :- the Constituent Assembly "We are, in my opm10n, estopped from saying that the acquisition of estates and tenures is not an acqui- sition for such a purpose. That it is, has been decided by the Constituent Assembly itself." 1952 The State of Bihar v. Mnharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan f. 938 SUPREME COURT REPORTS (1952] This decision was reached in view of the prov1S1ons of clauses (4) and (6) of article 31 which were inter- the Constituent Assembly gave preted legislation. Reuben J. their express approval observed as follows :- to mean compulsory is clear acqumt10n, namely, "From article 31, clause (2), requirements Constituent Assembly considered a as essential compensation. The public purpose and provision for protection which under clauses ( 4) and ( 6) was confined to the latter Constituent requirement. Assembly thought that protection was not reqaued under the other head, that is to say, the Constituent Assembly regarded that nationalization of as it- self constituting a public purpose. the Constituent Assembly Evidently, therefore, I would, therefore, hold that there is a pose for the impugned Act within clause (2) of article 31." public pur- meaning of a wide indication to be understood Furthermore, Das J. said as follows :- "There is, I think, clear indication in the Constitu. tion of India itself that the expression 'public purpose' comprehensive sense. Constituent Assembly, representing the people of India which made the Constitution, was itself aware of the existence of legislation of the nature of impugned Act. This is clear from clause ( 4) of article 31. As a matter of fact, commencement of the Constitution ........ If the legis- lation then pending was not for a public purpose, it was, the Constituent Assembly tried to save such legislation by means of the provi- sions of clause (4) of article 31. One may, I think, implied declaration by say that Constitue11t Assembly that such legislation was for a public purpose and such declaration will be given deference by the courts until it is shown to involve an impossibility. the Land Reforms Hill was pending at indeed, surprising that there was an .. , . • • .. 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan/. S.C.R. SUPREME COURT REPORTS 939 For reasons given above, impugned Act does not fall purpose". I hold for want of a public - Learned counsel challenged this view of the High Court and contended that article 31 ( 4) of the Constitu- tion is no answer on this point and that the Act was bad as it was silent on the question as to why the zamindaris were being acquired ; that it only provided for the interception of rents which instead of being realized by the zami11dars would . go into the coffers -0f the Government without any benefit being derived by the tenants ; that private property could not be acquired for merely augmenting the revenues of State; and that the only purpose that could be gather- ·ed from this Act was the ruination of a large class of persons without any corresponding benefit to any sec- It tion of the community. tenure-holders m Bihar 13,35,000 and if an average family be taken to consist of persons, five and a half million people will be ruined legislation, while the ryots will not. benefit in any manner because all the lands excepting the waste lands sought to be the possession and cultivation of the ryots and no part of realisable from them It IS pointed out that the waste lands were. benefit. requirements of villagers for sufficient to meet the grazing (;attle and for pasture and that in effect acquisition of the estates was for the purpose of crea- super-landlord ting one machine-ridden and red-tapist by depriving a substantial portion of their means of livelihood. transferred are 111 land-owners the public commuted Is being The learned counsel proceeded to say that nationali- zation ·of land may be the policy of the party in power ·but this is not a public purpose which involves benefit in this connection was to the community. Reference made to the decision in Hamabai Pramjee Petit v. Secretary of State for India (1), where it was observed it . may :that the phrase "public purpose" whatever (l) (1915) 42 I.A. 44. 1952 The State af Bihar v. Maharaia dhiraia Sir Kameshwar Singh of Darbhanga and Others. Mahaian ]. 940 SUPREME COURT REPORTS [1952} to the particular interest of is, an object or mean, must include a purpose, aim, in which the general interest of the community as individuals 1s opposed directly and vitally concerned. The impugned Act, was contended, did not fall within this definition of "public purpose". Reference was also made to Vol. II of Cooley's Constitutional Limitations, page 744, wherein it is said as follows :- "The purpose must be public, and must have reference to the needs or convenience of the public, and no reason of general pnblic policy will be sufficient to validate other transfers when they concern existing vested rights." Finally, it was urged tl1at there was nothing definite or tangible in the Act or in the views of the legisla- tures which gave any indication of the public purpose for which the estates were being acquired and all that could be gathered was know its own mind at all and on a vague notion of some future policy directed the acquisition of the estates. that the legislature In my opinion, it will not serve any useful purpose· to examine each and every argument that was address- learned counsel. There can be no. ed to us by the manner of doubt that acquisition of private property by legislation under entries 33, 36 and 42 can only be made either for purposes of the Union or for purposes of the State or for a public purpose and that it is un- in the statute itself •1ecessary to state in express terms tne precise purpose for which property is being taken, nrovided from the whole tenor and inten<lment of the Act it could be gathere<l that the property was being acquired either for purposes of the State or for pur- intention was poses of the public and It may be conceded benefit the community at large. that the present statute does not disclose legis- lature's mind as to what it would ultimately do after State Government. Perhaps the State Government has not yet made up· .its mind how and for what purposes the lands and the tenures acqtiired will statute be utilized. arc vested that the in the estates The • • • 1952 The State of Bihar v. Maliaraja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan/. ,. ' • .. ' S.C.R. SUPREME COURT REPORTS 941 it will be provides m section 34 for the establishment of a land to advise the commission whose function Government as that as to its agranan policy. Be that m spite of the criticism may, it seems to me the Act by levelled against learned counsel, it it fails cannot be said that the Act would fall because to postulate a public purpose. The Act intituled "The Bihar Land Reforms Act, 1950". The preamble of the Constitution says con- stituted justice, social, economic and secure ·to all its citizens political. Article 39 of the Directive Principles of State Policy states as follows :-- into a Sovereign Democratic Republic that India has 1s shall, "The State in particular, direct its policy t!owards securing that the ownership and control of the material resources of the community are so dis- the common good ; and tributed as best to that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment." subserve acquisition the common good as best as possible. Now it is obvious that concentration of big blocks of land in the hands of a few individuals is contrary to India the principle on which the Constitution of 1s based. The purpose of the contemplated by the impugned Act therefore is to clo away with the concentrat; on of big blocks of land ancl means of pro- duction in the hands of a few individuals and to so distribute the ownership and control of the material resources which come m the hands of the State as to subserve In other wor<ls, shortly put, the purpose behind the Act land distribution system of Bihar for the general benefit of the commu- nity as advised. The legislature is the best judge of what is good for the community, by whose suffrage it into existence and it is not possible for Court to say that there was no public purpose behind the acquisition contemplated by the impugned statute. The purpose of the statute certainly 1s m accordance with the letter and spirit of the Constitution of India. is fallacious to contend that the object of th1 Act is It to bring about a reform in the 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh <Jf Darbhanga and Others. Mahajan/; 942 SUPREME COURT REPORTS [1952] acquisition. the subject-matter of to ruin five and a half million people in Bihar. All lands in khas possession of all these persons have not Their been made homesteads, tbeir mineral wealth except mines not operation have not been seriously touched by the pro- visions of the Act. Various other exemptions have also been made in their favour in the Act, apart from the provisions as to compensation which in the of small zamindaris can by no means be said to be of It is <liflicult to hold in the pre- an illusory character. that measures adopt- sent day conditions of the world ed for the welfare of the community and sought to be the carry- achieved by process of legislation so far as ing out of the policy of nationalization of land is con- cerned can fall on the ground of want of public pur- pose. The phrase "public purpose" has con- in which strued according to the spirit of the times particular legislation is enacted and so construed, the acquisition of the estates has to be held to have been made for a public purpose. to he arrears was the private purpose of the statute, acquisition of These observations. however, have revenues of for payment of application to the acquisition of arrears of rent. On fifty per cent. of the other fifty per cent. was either zemindars and for supplementing the State or for securing means compensation to discharge the obli- the zemindars. The purpose the price. The same gation of observations apply statute. the purpose of That provision has been made for negativing partially the provisions of the Act regard- ing payment of compensation. Clause ( 4) of article 31 affords no protection against the invalidity of clauses. to clause 23 (f) of the acquirer to pay The learned Attorney-General contended acquisition of arrears was an acquisition of choses in action and that the compensation paid for it was fifty per cent. of the amount of arrears. I regret I am un- is a well accepted able to accept this suggestion. It ' , .. .. _ .... 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan/. S.C.R. SUPREME COURT REPORTS 943 the whole law that property of individual citizen but individuals can- proposition of not be appropriated by the State under the power of compulsory acquisition for the mere purpose of adding "The principle of com- to the revenues of the State. (in says Cooley pulsory acquisition of property," Vol. II at p. 113, Constitutional Limitations) "is founded on the superior claims of com- is applicable munity over an is wanted only in those cases where private property the public welfare for public use, or demanded by and that no instance is known in which it has been the mere purpose of raising a revenue by taken for sale or otherwise and the exercise of such a power is Taking utterly ~10ney under the right of eminent domain, when in money afterwards 1t must be compensated nothing more or than a forced loan. Money or that which in ordinary use passes as such and which the Government may reach rights in action which can only be avai~able when made lo produce money, cannot be taken under this power." destructive individual taxation, right. same opm1on. Nichols Willis in his Constitutional Law, at page 816, offers "Eminent Domain" (Vol. I, at page 97) has expressed a con- trary opinion and reference has been made decision in Cincinnati v. Louisville etc., R. Co. (1). An this case, however, does not disclose examination of It was that any such proposition was stated therein. the enforce- that a Bill held in that case ment of a State statute regulating insurance· rights It was not was a valid law in the State of Kansas. necessary the power compulsory acquisition power the State has it cannot be to acquire choses in action or money, but that such an acquisition amounts . seriously disputed result can be to a forced loan and the police more appositely obtained power of the State than of the power of eminent domain or compulsory acquisition of property , and that com- pensation in such a case is the same amount of money the desired in exercise of in this case whether under restrain to decide (1) 223 U.S. 390. • 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan]. 944 SUPREME COURT REPORTS [1952] In acquisition It stands on public purpose. land reform that is being taken and in the case of a chose in action the amount of money that it would produce. situation it cannot be held that fifty per cent. of the sense of outstanding arrears was compensation in any true posi- this acquisition. The that expression for tion is that took over all the arrears and the State decided to refund fifty per cent. of forfeit them and this acquisition has to be the rest. The validity of independently of decided estates. It has no connection with with' any the same footing as other debts due to zamindars or their other movable properties, which it was not the object of Act to acquire. As already stated, the only purpose to raise revenue to pay to support compensation to some of the zamindars whose estates taken. This purpose does not fall within are being any definition, however wide, of "public purpose" and the law therefore to this extent is un- constitutional. One or the public purpose in- volved in this provision will bring O\lt its true character. In Appeal No. 299 of 1951, the arrears of Darbhanga a sum of Raj is payable Rs. 30,81,967. Half of In the Raj and the other half stands case of Raja P. C. Lal (Appeal No. 330 of 1951), rents due were Rs. 10,26,103, and in Appeal No. 339 of 1951, the amount is Rs. 9,52,937. two illustrations of 26th September, this acquisition this amount the phrase 1950, was forfeited. 011 Next it was contended that the impugned Act is a fraud on the Cunstitution and therefore void. It was said that the Act, while pretending to comply with it ; that the Act the Constitution, evades and invades merely pretends to comply with the Constitution when it says that it provides for payment of compensation but in effect it has produced a scheme for non-payment of compensation by shift and contrivance. Reference was made to certain provisions of the Act of a con- judgment. fiscatory nature, already Section 9 was mentioned under which mines in income yet -course of development and fetching no noticed ' - . ~ • I 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan/. • S.C.R. SUPREME COURT REPORTS 945 vest in the State without payment of compensation. No compensation has been made payable in respect of forests or trees which were not fetching income In a nutshell, it was contended at the date of vesting. that the object of the Act was to acquire properties of the zemindars by payment of compensation (so-called) them- out of the moneys belonging to the zemindars they had not only selves and that in some cases give up their estates for nothing but would have the prin- pay something, in addition, to the State, if It was ciples specified in the Act were pointed out in the case of the Maharaja of Darbhanga that his zemindari would be acquired by the State Government without paying anythiµg but that the Maharaja would have to pay out of his own money In Case No. 330 of six lakhs to the Government. that Government 1951 would get the zemindari free, while in Case No. 339 of 1951 the State will get the zemindari and two and half lakhs out of the arrears, while in Case No. 331 of 1951 (Chota Nagpur appe;:il) the zemindari will be acquired on payment of a small sum of Rs. 14,000 only. No- thing will be payable to public exchequer. Attention was drawn to the obser- vations of Shearer J. in the following passage :- (Raja P. C. Lall), it was said the zamindars out of apply. the most the intention loan. The conclusion, "The legislature, it is clear, are optimistic enough to hope that this reform may conceivably be effected without raising any great my mind, is irresistible over the great estates in the province, paying no com- inadequate compensation, and pensation or to be out of the considerable profits which are derived from them, to take over, in course of In other words, a remaining estates and comparatively small minority belonging to this parti- cular class are to be expropriated without compensa- tion or with the most order that, when the great majorit} are expropriated, in- receive compensation which will not be adequate and may, quite possibly, in many cases, be more than adequate." inadequate compensation tenures. likely time, 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan /. 946 SUPREME COURT REPORTS [1952J Mr. Das vehemently contended the statute was a fraud on republican Constitution which promised to deprive no one of his property without payment of compensation ; it pretended to make elaborate provisions for paying it but that by shift and con- its pay- trivance it has provided for in Moran ment. Reference was made to a passage Proprietary Ltd. v. Dy. Commissioner of Taxation for New Sottth Wales ('),which is in these terms:- the evasion of effect financial to grant the power discrimination "Cases may be imagined in which a purported exercise of assistance under section 96 would be merely · colourable. Under the guise or pretence of assisting a State with money, and purpose of the Act might the real substance simply be regard taxation. Such an Act might well be 11/tra vires Their Lordships Commonwealth Parliament. using the language of caution because such a case may never arise, and also because it is their usual practice in a case dealing with constitutional matters to decide They will add no more than their duty requires. the matter, some only that, in the view they take of ttltra vires of the by Evatt judgment- may_ well be colourable, and such acts are not receiving the approval of their Lordships." legislative expedient-objected to as forcible dissenting J. in his • ' . the Constitution on It was urged that a statute could be declared to be same principles a fraud on that are applicable corporations or of executive bodies, whether abuse of their statutory powers. Reliance was placed in this connction on the observations of Abbott C.J. in Fox v. Bishop of Chester("), which are terms:- they act in excess cases of "Our judgment is founded upon the language of the Statute 31 Eliz. c. 6 and the well-known principle of law, that the provisions of an Act of Parliament shall not be evaded by shift or contrivance." (!) [1940] A.C. 838, at p. 858. (2) 107 E.R. 520, at p. 527. S.C.R. SUPREME COURT REPORTS 947 >--l • In Fox v. Bishop of Chester(1), it was said that there may be fraU<i on the law, an insult to an Act of Parlia- ment, though in the language and text of the law no In Westminster such fraud may have been mentioned. Corporation v. London & North Western Raz'lway(2), it was observed :- those conferred upon "It is well settled that a public body invested with statutory powers such as corporation must take care not to exceed or abuse its powers. the author- It must act in good faith. And ity committed to it. it must act reasonably. The last proposition involv- ed in the second, if not in the first." It must keep within the limits of 1952 The State of ·Bihar v • M aharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Ma/iajan /. •• » . In Maharaja Luchmeswar Singh v. Chairman of the Darbhanga Municipality(8), it was pointed out that the offer and acceptance of one rupee was a colourable attempt to obtain a title under the Land Acquisition lq Alexander v. Act without paying Brame( 4 ), it was observed that i£ it had appeared that sufficient ground existed · for holding that the deed in question was a device on the part of Mr. Brame for the statute, by the purpose of evading and eluding keeping seemingly and colourably clear of it, while meaning substantially a view might have been taken favourable to the appellants. infringe it, for the land. in passing All these principles are wellcsettled. But the ques- tion is whether they have any application to the present It is by no means easy to impute a dishonest case. motive to the legislature of a State and hold that acted mala fide and maliciously the Bihar Land Reforms Act or that it perpetrated a fraud on the Constitution by enacting this law. some of the provisions of the Act may operate harshly on certain persons or a few of the zamindars and may be bad if they are in excess of the legislative power of the Bihar Legislature but from that circumstance it does not follow that the whole enactment is a fraud on the Constitution. estates of half a· dozen zemindars may be expropriated From the premises It may be (1) 6 E.R. 581. (2) (1905] A.C. 426 at p. 430. 6-10 S. C. India/71 (3) 17 I.A. 90. (4) 44 E.R. 205. 1952 The State of Bihar v. Mahar11ia- 4hiraia Sir Kameshwar Singh •f Darbhanga •al Otherr. SUPREME COURT REPORTS [1952] without payment of compensation, one cannot j~mp to the conclusion that the whole of the enactment ts a fraud on the Constitution or that all the provisions as to payment of compensation are illusory. At best are illusory only in the case of some only of the large body of persons affected by it. I _A - '. Section 23(f), however, in my opinion, is a colour- It has been enacted under able piece of legislation. power conferred by legislative entry 42 of List III. It is well-settled that Parliament with limited powers cannot do indirectly what it cannot do directly. (Vide South Australia v. The Commonwealth(') and Madden v. Nelson & P<>rt Sheppard R. W. Co.(2). In Deputy Federal Commissioner of Taxation (N. S. W.) v. W.R. Moran Proprietary Ltd. (8 ), follows:- it was observed In such cases "Where the law-making authority is of a limited or qualified character, obviously it may be necessary the substance of to examine with some strictness legislation for the purpose of determ'ining what that the legislature is really doing. court is not to be over persuaded by the appearance of the challenged legislation ........ In that case, court applied the well known principle that in relation to constitutional prohibitions binding a legislature, legi.~lature. cannot disobey the prohibition merely by employing an indirect method of achieving exactly the same result ........ The same issue may be whether legislation whieh at first sight appears to conform to constitutional requirlements is co~ble or disguised. In such cases the court may have to look behind names, form and appearances to determine whether or not the legislation is colourable or disguised." ' .. The provision herein impeached has not been arrived at by laying down any principles of payh;g compensation bur in truth, is designed to deprive a number of people of their property without payment of compensation. The State legislature is authorised to pass an Act in the interests of persons deprived of . .., (1) 65 C.L.R. 373. (2) (1899) A.C. 626. (3) 61 C.L.R. 735 at p. 793. S.C.R. SUPREME COURT REPORTS 949 propeny under entry 42. They could not be permitted under that power to pass a law that operates detriment of the object of which those persons and provision is to deprive them of the right of compen- sation to a certain extent. • legislative head In this connection it is no~ convenient to examine the contention of the learned Attorney-General as entry 42 of the interpretation of List III. He contended that under this head it was open to the Parliament or the State Legislature to make a law laying down the principles which may result in non-payment of compensation or which may result in not paying any compensation whatsoever. I cannot possibly assent to any such construction of this entry. The entry reads tfius:- 1952 The State of Bihar •• Maharaja- tlhiraja Sir Kameshwar Sin1h of Darbhan111 and Otliers. Mahaian /. "Principles on which compensation for property acquired or requisitioned for purposes of the Union or of a State or for any other public purpose is to be determined, and the form and manner in which such compensation to be given." that a This head of legislation seems to have been expressly mentioned in the Concurrent List not only in view of the accepted principle of law that in cases of compul- sory acquisition of property compensation has to be made but also in view of the clear and mandatory provisions of article 31(2) which require authorising the taking or acquisition of propeny will be void if it does not provide for payment of compen- sation for the property acquired or does not either fix the amount of compensation or specify the principles on which and the manner in which the compensation is to be determined and given. The power of legisla- tion in entry 42 is for enacting the principles of deter- paying it. The mining such compensation and for principles to be enacted The principles compensation to be enacted the equivalent price of the property taken away. the determination of for ascertainment on the basis of certain uniform rul('s; It may be the equivalent may be are for determining for determining for paying it. • ,, 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan f. 950 SUPREME COURT REPORTS [19521 for instance, it may be laid down that the principles for determining compensation will be the rental basis or the market value of the property etc. But it is difficult to imagine that there can be any principles fur non- payment of compensation or for negativing the pay- ment of compensation. No principles are required be stated for non-payment of compensation. A simple statement that no compensation will be paid is quite I know of no principles __ ior enough to attain the object. determination of compensation which result in its non- payment except in the Act under notice. AlCfcgiS: lative heads have to be reasonably construed and the power given under entry 42 is a positive power given· to bring about the resuit of payment of compensation and not non-payment of the same. The key words in the entry are "compensation" and "given". Any- thing that is no.related to compensation or the giving of it cannot be justified by legislation under entry 42, Reference was made in this connection to the United Provinces v. Atiqa Begum('), in which it was held that the descriptive words under legislative head - "collection of rents" are wide .enough to permit k~- lation in respect of remission ·of rents and that under item 22 of the Government of India Act, legislative head "forests" include the power to legis- late with respect not only to afforestation but also to disafforestation and that the legislative head "fisheries" to legislate on the prohibi- tion of analogies have no application . to the construction of the language employed in entry 42, These entries are not in par[ materia to entry 42. Perhaps a more analogous case on the point is the decision in Attorney General for Ontario v. Attorney-General for t!te Domi nion ( 2 legis- lative head "Regulation of Trade and Commerce" included the power to abolish it also. Their Lord- following ships of observations which appear report:- ). The question there was whether page 363 of the Privy Council made include the power In my opinion, altogether. fishing 1935, (!) [1940] F.C.R. 110 at p. 135. (2) [1896] A.C. '!48. • ' J ' . ' ., • , '· SUPREME COURT REPORTS 951 S.C.R. "A . power to regulate assumes the conservation of the thing which is to be made the subject of regu- lation. In that view, their Lordships are· unable to regard the. prohibitive enactments of the Canadian statute as regulations of trade and commerce .... there Maharaja· dhiroja Sir vention of a. trade and the· regufation or governance Kas~·h~• ..g,. f 't" of Darbhanga 0 1 • An entry concerning payment of compensation in no•v ornlOthera. ~­ · is marked distinction between the prohibition or pre- 1952 Tl• Stat• of Bihar _ v •. . . - . · sense includes legislative power of non-payment of\ compensation, The whole purpose of this head of/ MohajanJ. legislation is to provide payment of compensati_on andi · - not the confiscation of property. The provision that four per cent. to twelve and a half per cent. has to be deducted out of thenet income on account of costs of works for the benefit of raiyats etc. has no relation to real facts. Even the earlier provision in clause (d) that costs of management have to be deducted up to twenty per cent. has in its entirety no real relation to actual state of affairs. As already pointed out, it is partially of a confiscatory character in sufficient number of cases. The deduction under clause (f) from the gross income is merely a deduction of an artificial character, the - whole objecLbeing.. to inflate the deductions and thusJ1r.ing_about_11on, pay ment of compens_aJ;ion. -such legislation, in my op1mon, is not permitted by entry 42 of List III. Suppose, for instance, instead of a twelve and a half per cent. it declared that a deduction of seventy per cent. be made on that account. Could it be said by any reasonable person that such a piece of legislation (ti was legislation on principles of determining compensa- D tion or of making payment of compensation. This provision, therefore, in my opinion has been inserted in the Act as a colourable exercise of legislative power under entry 42 and is unconstitutional on that ground. The power has not been exercised - under any -- other legislative head authorizing the State legislature to pass such a law. Legislation ostensibly under one or other of the powers conferred by the Constitution but jn truth and fact not falling within the content of thai =- 1952 TAe State of Bihm· v. Mah1Jraja dhiraja Sir Kameshwar Singh of Darbhan ga and Others. Mahajan /. 952 SUPREME COURT REPORTS (1952] power is merely colourably constitutional but is really [Vide Quebec v. Queen Insurance Co. (') ; not so. Russell v. The Queen(').] Reference in this connection may also be made to the decision of the Privy Council in Madden v. Nelson & Fort Sheppard R. W. Co. ('). legislation is unconstitutional This clause made colourable valid under exercise of legislative power under entry 42 of List II. therefore survive, or, It was contended by Mr. Das that if some provisions in the Act are ultra vires, the statute as a whole must be pronounced to be ultra vires and that it could not be presumed that the legislature intended to pass it in what may prove to be a truncated form. The is whether what quc:stion to decide in all such cases reamins is so inextricably bound up with the part declared invalid that what remains canno~ independ- as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted at all that which survives without enacting the part that is ultra vires. as a whole, it Look[ng at the Act seems to me that the offending provisions of the Act are not so inextricably bound up with the part valid as to hit or kill the remainder also. In this case legislature a presumption cannot be drawn would not have enacted the Act leaving out the to be declared to be or three provisions which have invalid. Mr. Das also raised a minor point Act was unenforceable. section 32(2) of the Act Reference was made which runs as follows :- the Bihar "The amount of compensation so payable in terms finally published of a compensation Assessment-roll as shall be paid in cash or in bonds or partly in cash and partly in bonds. The bonds shall be either negotiable or non-negotiable and non-transferable and be payable in forty equal instalments to the person named the1ein and shall carry interest at two and a half per centum per annum with effect from the date of issue." (!) (1878) App. Cas. 1090. (2) 7 (1882) App. Cas. 841. (3) [1899] A.C. 626. ' . S.C.R. SUPREME COURT REPORTS 953 It was contended that as no date has been ment_ion- ed for payment of compensation and no interval has been stated between the instalments mentioned therein and it has not been mentioned how much would be payable in cash and how much in bonds, the Act could not be enforced. Section 43 of the Act empowers State Government to make rules for carrying out the purposes of the Act. Clause (p) is in these terms :- "The proportion in which compensation shall payable in cash and in bonds and the manner of pay. ment of such compensation under sub-sections (2) and (3) of section 32." It seems clear that the Act has made sufficient provi- sion for enforcing its provisions if section 32(2) is read with the provisions contained cannot be said for this reasi;.>n. in section 43 that the Act is unenforceable 1952 T }11: Stau of Bihlll' . y, Maharaia· tlhiraia Sir Kameshwllf' Singh of Darbh11,,g11. and Others. M ahaian J. the legislature The last point urged by M. Das was that section 32 legislative functions (2) of the Act was void as had been abdicated by in favour of the executive. A two-fold attack was levelled against this prov1S1on. Firstly, it was the Constitution having _in entry 42 of List III of the Seventh Schedule vested authority in the legislature laws on the question of the principles as the payment of compensation and the manner and form of its payment, in other words, it h;, ving trusted these matters to care, judgment and wisdom of the legislature, it had the executive. no power to delegate these matters Secondly, it was contended section 32 (2) dele- gated essential legislative power to the executive which it was incompetent to do. Reference was made to the this court in Special Reference No. 1 of opinion of 1950. to make )., . •• The matters alleged to have been delegated are these:-

#1. The determination of the proportion of the cash payment to the payment by giving bonds, negotiable or non-negotiable. 123 ' ' , 'TM State of Bihar v. Maharaia ilhiraia Sir Kamcshu1ar Singh t'>f Darbhanga ond Others. Mahaian /. 1 954 SUPREME COURT REPORTS [1952}

#2. The determination of the period of redemption of the<e bonds.

#3. The period of interval between the several instal- ments. issued. instalments. is obvious non-transferable. the question of the nature It further The section enacts that It has interest at the compensation payable shall be paid in cash or in bonds or partly in cash and the principle It therefore determines partly in bonds. that the payment of compensation will be in these two that bonds shall be either forms. It further enacts It negotiable or non-negotiable and therefore also determines enacts that would be in forty payment, if made in bonds, will be paid It equal instalments. the bonds will be co-terminous of redemption of further with the period of the enacted that the bonds will carry the rate of two and a half per cent. What has been left to the executive is the determination of to be paid in proportion in which compensation cash or in bonds and the fixation of the interval of the It seems to me that the delegation to this instalments. the decision of this extent Court in The State of Bombay v. Narottamdas bai (') and the decision of their Lordships of the Privy Council in Queen v. Burah(2). The legislature applied its mind to the question of the method and manner of It settled its policy and payment of compensation. It gave the State Government the broad principles. the power to determine matters of detail after having settled vital matters of policy. the legislature did not apply its mind to the subject- matter of the legislation and did not lay down a policy. The proportion in which compensation was payable in cash or in bonds or whether the whole of it was to be paid in cash is a matter which only the State Govern- ment could fix and similarly, instal- ments and the period of redeemability of the bonds were also matters of detail which the; · executive could is permissible in view of It cannot be said interval of (1) [1951] S.C.R. 51. (2) (1877) 5 I.A. 178. S.C.R SUPREME COURT REPORTS 955 .more oppositely determine in exercise of its rule-mak- It cannot be said in this case that any mg power. essential legislative power has been delegated executive or th.at the legislature did not discharge If the trust which the Constitution had reposed in it. rule-making authority abuses its power or makes any attempt to make the payment illusory, the expropriat- ed proprietor will not be without a remedy. For the reasons given above, I am of the opinion that section 32(2) of the Act cannot be held bad on the ground that it is a piece of unregulated delegation of legislative power. Mr. Das's contention in Cases Nos. 319, 327, 330 in which he and 332 of 1951 and in the other cases appeared were the same. · 1952 The State of Bihar . v. Maharaia dhiraja Sir Kameshwar Singh of Darbhanga and Others. Mahajan/. ,). . I stress was is necessary Mr. Chaudhury appearing in Cases Nos. 309 and 328 of 1951 raised a large number of points, some of which are covered by the arguments of Mr. P. R. Das, which already. The rest seem to me to I have discussed to notice a few be unsubstantial but laid by the of them upon which great learned counsel. Mr. Choudhury contended the question of principles of field of legislation on the mode and determination of compensation manner of payment of such compensation was already occupied by the Land Acquisition Act which was an existing law of Parliament and, t~refore, the State legislate Legislature could not enter on on the principles of payment of compensation. This argument really has no force, because the provisions as to a~sessment of compensation enacted the Land Acquisition Act only to acquisitions that are Its provisions made by notification under have no application to acquisitions made under either local or central laws unless they are specifically made .applicable by the provisions of these statutes. this field and that Act. ·Another point put forward by him, the Constitution articles 31-A and 31-B of cannot affect pending cases cannot be seriously entertained because retrospectivity is writ large on the face 1952 The Stau of Bihar v. Maharaia dhiraia Sir Ka111eshwar- Singh of Darbhanga and Others. Mahajan/. 956 SUPREME COURT REPORTS [1952] transference Similarly, cannot but regard I contention seriously pressed by him articles. as un- substantial estates of zamindars to the State under the provisions of a statute requires registration. The only other the Bihar Legislature had no power to issue bonds without complying with the procedure laid down in article 293 of the Constitution. It is enough to state with regard to this poiint that the stage for issuing bonds has not arrived as yet. When issues bonds which it is not competent to contention can possibly be raised. are unenforceable or which issue, the the State legislature f Mr. Chakravarty who appeared m three cases, Noo. 326, 337, and 344 of 1951, urged regards that as trust properties, the Bihar legislature had no power to acquire them without payment of full compensa- tion as certain educational and institutions would thereby be seriously affected. He was, however, unable to point out how the Bihar Legislature had no power to acquire trust properties. charitable reasonable and Mr. Raghav Saran who appeared in Cases Nos. 310, the Supreme it void on to support his argument The constitutionality of statute passed by a competent legislature cannot 311 and 329 of 1951, raised a novel point Act not being Coun ·had jurisdiction ground. He was unable on any reasonable basis. a be challenged on the ground that the law made not reasonable or just. to declare just, Counsel who appeared in Cases Nos. 307, 313, 315, 320, 321, 322 and 331 and Petition No. 612 of 1951 merely adopted the points urged by Mr. P. R. Das. The result is that the provisions o f the Bihar Land Reforms Act contained in sections 4(~) and 23(f) are held not constitutional. The rest of the Act is good. The appeals are therefore allowed except to the extent indicated above. A writ of mandamus will issue the State Government not to give effect to provisions mentioned above and held unconstitutional. \ · S.C.R. SUPREME COURT REPORTS 957 right has been alleged Petition No. 612 of 1951 under article 32 is dismissed it is not maintainable ; no infringement of any therein. There fundamental in Cases Nos. was no appearance for 18 of 1950 and 299 of 1951 and no opposition appeals being allowed. They are accordingly allowed. I will make no order as to costs in any of these appeals and petition. the respondents MuKHERJEA J.-1 had the advantage of going care- fully through the judgment of my learned brother Mahajan J. and I concur entirely in the conclusions In my opinion, arrived at by him. the Bihar Land Reforms Act of 1950 is not unconstitutional, with the exception of the provisions contained in section 4(b) and 23(f) of the Act and these provisions alone must be held to be void and inoperative. 1952 The State of Bihar v. Maharaja dhiraja Sir Karneshwar Singh of Darbhangrr and Others. legislature purported As regards section 23(f) its powers under entry 42 of the Bihar Land Reforms Act, my learned brother has based his decision on the ground that the provision of this clause constitutes a in enacting fraud on the Constitution, and although to exer- the provision, the Legisla- in Schedule VII of the Constitution, tive List in reality i:t is a colourable exercise of that power been done wliich thing has under which a that entry at all and not contempleted by I agree with the line of reasoning outside its ambit. adopted by my connection and there I can usefully add. learned brother is nothing further which III As regards section 4 (b) it has been held by my learned brother that the provision of this clause is un- constitutional as it does not disclose any public pur- pose at all. The requirement of public purpose . is implicit ~ compulsory acquisition of property by the State or, what is called, the exercise of its power of eminent domain. This condition is implied provision of :irticle 31 (2) of the Constitution and although the enactment in the present case fulfills the requirements of clause (3) of article 31 and as Jo. • .,. 1952 The State of Bihar v. Maharaja dhiraja Sir Kanieshwar Singh cf Darbhanga and Others. Mukherjea /. 958 SUPREME COURT REPORTS [1952] that clause clause takien (4) of the view learned brother has such attracts the operation of article, my the bar created ·by cleause ( 4) is confined to the ques- tion of compensation only and does not extend to the a public purpose which, existence or necessity of though implicit in, has not been expressly provided for by clause (2) of the article. For my part I would ( 4) of article 31 be prepared to assume relates to everything that is provided for in clause (2) and con- either in express the existence of a public sequently tl1e question of the purview of our purpose does not come within enquiry in the present case. Even then I would hold that the same reasons, which have weighed with my declaring section 23(f) of the learned impugned Act to be unconstitutional, apply with equal, if not greater, force to section 4 (b) of the Act in agreeing with him as and I have no hesitation regards his decision on provision of the Act though to adopt a different line of reasoning in support of the same. the constitutionality of I would prefer terms or even impliedly brother thereon tl1e Act tenure by the estate or Section 4 (b) of the Bihar Land Reforms Act down, as one of the results of the publication of a notification under section 3(1) of that "all together with arrears of rents........ and all cesses interest, if any, due for any period prior to the date of vesting which were recoverable in respect the proprietor or tenure- holder and the recovery of which was not barred by recoverable any law of limitation shall vest in and be by the State". further clause the expre"ion "arrears of rent" clause include suits were pending arrears respect of which together with decrees were obtained before that date section 24 costs allowed by such decrees. Under of the Act, 50" lo of these arrears of rent are directed to be added the amount of compensation money payable for the estate or interest calculated in accord- ance with the provisions of the Act. attached for purposes of respect the date of explanation The provides vesting or in of which JP 1952 The State of Bihar v. Maharaia dhiraja Sir Kameshwar Singh of Darbhanga· and Others. Mukhtriea f. S.C.R. SUPREME COURT REPORTS 959 therein, estate or learned Attorney-General The arrears of rent whether merged in decrees or not, whic.h were due to the landlord for a period ante- rior to the date of notification under section 3(1) of the Act, were undoubtedly the property of the landlord, irrespective of his interest in the estate or tenure which is the subject-matter of acquisition. Such arrears could not vest in the State as a normal result of acquisition of any interest con..:cdcd by the that article 31-A of the Constitution has no application so far as these arrears of rent are concerned. The arrears of rent, therefore, are the subject-matter of separate and indi- I,,~nd Reforms pendent acquisition Act, if the word "acquisition" can at a11 be appropriate to cases of this description. It cannot be disputed in every Government appropriate property of the citizens for the necessities of Statt: and constitutional provisions do not confer they generally surround it with safe- that when pri- guards. The restrains invariably are vate property is taken, a pecuniary compensation must be paidC1 ). Thus eminent domain is an attribute of sovereign power supposed to be tempered by a princi- ple of natural law which connects its exercise with a duty of compensation(2). authority the Rih:i.r inherent though i1nrler Possibly under the impression that the sacredness of private property should not be confided the un- certain virtues of the party in power for being, the Constitution-makers of our country have declared it as one of the fundamental rights that no property shall be taken possession of or acquired for public purpose unless the law directing its appropriation makes provision for compensation in the manner down in article 31 ( 2). Clause ( 4) of article 31 does not do away with the obligation to pay compensation ; it merely lays down that laws which are referred to in clause (3) of the article would be immune from judi- inadequacy of the the ground of (I) Vi de Cooley on Constitutional Limitations, Vol. II, p. 1110. (2) Vide Encyclopaedia of Social Science, Vol. V, p. 493. scrutiny on f ' .. 1952 The State of Bihar v. Maharaja Jlziraja Sit Kameshwar Singh of Darbhanga and Others. 960 SUPREME COURT REPORTS [1952) amount of compensation or the impropriety of principle for assessing the same as provided for in the enactment. The clause presupposes however that the enactment is the result of a valid exercise of a legis· lative power conferred on appropriate entries in the Legislative Lists and if the legislature acts outside these entries or, under the pre- tence of acting within them, does something which is in flat contradiction with its contents, clause ( 4) of article 31 could not be invoked to afford any protec- tion to such legislation. legislature by .; to appropriate all the legislative provision purports Clause ( 4) (b) of the impugned Act read with the provision of section 24 of the same, empowers the arrears of State Government rent due to a landlord at a particular time and in this the Government only obligation it casts on the amount thus appro- respect is to allow 50"/o of priated as sol'lllium the so-called acquisition. On the face of have been made in exercise of the powers conferred on the State legislature under entry 36 of List II and entry 42 of List III of Schedule, VII of the Constitu- In my opinion, this is a mere device or pretence tion. and the real object which the accomplish is to deprive a man of his money which is not ordinarily a subject-matter of acquisition, in exer- cise of what are known as powers of eminent domain by the State, without giving him anything ex- change; and under the guise of acting under entry 42 of List III, the legislature has in truth and substance evaded and nullified its provisions altogether. legislation intended The general p_rinciples, which distinguish the powers the State of eminent domain from other powers of under which the sacrifice of the proprietary interest of a citizen could be demanded or imposed, are fairly well-known. As has been observed by Cooley in his Constitutional species of pro- perty which require the Government cannot lawfully appropriate seized and subject under any other right, "every needs may Limitations public to be 1952 T lie State of Bihar "· Malioraja- tlhiraja Sir Kameshwar Singh of Darbhanga a11d Others. MuJc/1erjea [. .S.C.R. SUPREME COURT REPORTS 961 the right of eminent domain('). ~ppropriated under Money as such and also rights in action arc ordinarily this List by American jurists and for excluded from good reasons(2). There could be no possible necessity for taking either of them under the power of eminent in the hands of a citizen can be domain. Money taxation, it reached by the exercise of the power of may be confiscated as a penalty under judicial order and we can even conceive of cases where the State seizes -or confiscates money belonging to or in the hand~ of a citizen under the exercise of its 'police' powers on the ground that such fund may be used for unlawful pur- poses to the detriment of the interest of the community. But, as Cooley has pointed out(3), taking money under it must be of eminent domain when eompc"'ated by money afterwards could be nothing mor-e or less than a forced loan and it is difficult to say Stat it comes under the head of acquisition or re- quisitioning of property as described !n entry 36 of List II and is embraced within its ordinary connot- ation. It is said by the learned Attorney-General that the subject matter of acquisition in the present case is not money but choses in action. It seems to me that there is no difference in principle between them because a the acquiring -chose in action can be available authority only when it is made to produce money ; Otherwise it is useless altogether(3). Assuming however that entry 36 of List II is wide enough to include acquisition of money or a right of action, I have no hesitation in holding that in Qr~vid­ ing for compensation in respect of such acquisition the legislature has made a colourable use of entry 4:l oi List III and has thereby defeated the purpose of that speaks of Entry 42 of List entry altogether. "principles on which for property compensation acquired or requisitioned for the purposes of the Union to be or of a State or any other public purpose is ( l) Sec Cooley on Constitutional Limitations, Vol. II, p. 1113. (2) Cooley, Vol. If\ p. 1118; Willis on Constitutional Law, p. 816. (3) Vidc Cooley on Constitutional Limitations, Vol. II, p.1118,F. N. III 124 1 ,.. ' J • • t 1952 The State of Bihar v. Maharaja dhiraia Sir Kameshtuar Singh of Darbhanga and Others. Mukherjea /. %2 SUPREME COURT REPORTS [19521 to be given. learned Attorney-General determined, and the form and the manner m which such compensation is to be given". This is a descrip- tion of legislative head and I agree with the learned Attorney-General that in deciding the competency of the legislation under this entry, we are not concerned with the justice or propriety of the principles upon which the assessment of compensation is to be made under a parti- cular legislation nor are we concerned with the justice· or otherwise of the form or manner in which such I do not, however, compensation is agree with reasons already given by my learned brother in his judgment that legislation under this head need not pro- vide for any compensation at all and that a legislative provision which declares that no compensation is to be given comes within the ambit of this legislative head. Such construction is repelled by the very language of the entry which speaks of giving compensation and not of denying or witholding it. Stripped of all dis- guise, the net result of the impugned provision is that it would be open to the State Government to appro- priate to itself half of the arrears of rent due to the landlord prior to the date of the acquisition without giving him any compensation whatsoever. Taking of the whole and returning a half means nothing more or less than . taking half without any return and this is naked confiscation, no matter in whatever specious form it may be clothed or disguised. The impugned provision, therefore, in reality does not lay down any principle for determining the compensation to be paid for acquiring the arrears of rent, nor does it say any-_ thing relating to the form of payment, though appar- ently it purports to determine both. This, in my opinion, is a fraud on the Constitution and makes the legislation, which is a colourable one, void and operative. con- tended that it is beyond the compentency of the Court to enter into a question of bona fides or mala fides of If the legis- In a sense this is true. the legislature. lature is omnipotent, tl:;i.e mqtives, which impel it to enact a particular law, are absolutely irrelevant; learned Attorney-General has The · • • 1952 The State ot Bihar v. Maharaja- __ _ dhiraja Sir ' Kameshwar Singh of Darbhanga and Others. Mu/f..herjea /. S.C.R. SUPREME COURT REPORTS 963 on the other hand, if it lacks competence the question of motives does not at all arise. But when a legis- latU.re has a limited or qualified power and has got to act within a sphere circumscribed legislative entries, the question, whether in purporting to act under these entries, it has, in substance, gone beyond them and has done certain things which cannot be accomplished within the scope of these entries, is really a question affecting the competency of the legislature. In such cases, although the legislation purports to have been enacted under a particular entry, if it is really outside it, it would be void(1). It has been suggested in course of the argument on behalf of the State that in the present case the Government in the exercise of its powers of acquisition could acquire the arrears of rent and as the arrears were still unrealised, it was quite legitimate and proper for the Government deduct half of the gross amount as consideration for the trouble and expense that it would have to undergo in the matter of realising these arrears. This would that what the legislature intended is simply to enable the Government to help zamindars in realising the arrears' of rent and as a return for the help which it is to render, the Government right to retain half of the arrears that were actually due. This could not possibly have been the real in- tention of the legislature and I do not think that there is any item in the long legislative lists framed by the Constitution which empowers to inter- fere with the legal rights of the landlord in this manner apart from special circumstances indebtedness or otherwise and impose upon him an onerous obligation to which he is not a consenting party. A legislation of this character is a complete novelty, the like 0£ which has seldom been witnessed before. The result I concur in the order which has been made by my learned brother Mahajan J. in this case and I allow the appeals subject to the two modifications indicated above. There would be no order as to costs. the legislature is given (I) See Lefroy on Canadian Constitution, pp. 79-80. 7-10 S. C. India/71 1952 • The State of Bikar v. Maharaja tlhiraja Sir Kameshwar Singh flf Darbhanga and Others. Das/. 964 SUPREME COURT REPORTS [1952] DAs J.-The proceedings out of which these appeals initiated by different proprietors of have arisen were estates in Bihar challenging the constitutional validity of the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950) which will hereafter in this judgment be referred to as "The Act". 25, reserved section 3 of the Legislature of 1950 vesting · the the same. On September On January 26, 1950, when our Constitution came in- to force, the Bill which eventually became the Act was the State of Bihar. pending before After the Bill had been passed the State Legis- the consideration of the lature, it was President. On September 11, 1950, that Bill received the assent of the President and became the Act. The provi- sions of the Act have been analysed and summai; ised in the judgment just delivered by Mahajan J. and judgment by not necessary for me to burden recapitulating 1950, the text of the Act was published the Official Gazette with a notification under section 1 (3) dated September 24, 1950, bringing the Act into operation. the Act dated A notification under September 25, estates of certain in · the Official named proprietors was published This Notification having Gazette on the next day. been published in the Official Gazette, some of in the proprietors affected thereby Subordinate Courts in Bihar after giving the requ1S1te notice under section 80 of the Code of Civil Procedure and prayed for a declaration that the Act was uncon- the pro- stitutional and void and that their title perties remained the other Some of unaffected. proprietors filed applications in the High Court Patna under article 226 of the Constitution praying for the issue of appropriate writs, directions or orders. The State of Bihar filed its written statements in the· transferred to the High Court for suits which were disposal in exercise of its extraordinary Original Civil applications were Jurisdiction. involved grave ques- issues heard together. the Constitution, tions of and applications were placed before a Special Bench intcroretation of The suits As instituted ' 1952 The State of Bihar v. Maharaja- dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das/. S.C.R. SUPREME COURT REPORTS 965 Judges, learned of the Patna High Court and were disposed of on March 12, 1951. All the for one reason or another, repelled all the main contentions of the proprietors but held that the Act was uncon- stitutional in that it. denied to the proprietors equal protection of the laws guaranteed by article 14 of the Constitution. The High· Court rejected the plea of the State that article 31 ( 4) of the Constitution by reason of this Constitution" excluded article 14 at least application to the alleged inequality of compensation. Article 31(4) is in these terms:- the words "notwithstanding anything "lf 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 President and has received the consideration of then, notwithstanding anything assent, Constitution, not be so assented called in question ground that it contravenes the provisions of clause (2)." to shall . The State of Bihar obtained the Patna High Court under article 132 (1) of the Constitution to appeal to this Court and preferred these appeals before us. leave of the proprietors It may be mentioned here that the States of Uttar Pradesh and Madhya Pradesh also passed legislation for the abolition of zamindaries respective States and the validity of those legislations was also contested by thereby. The respective High Courts of those States, however, up- held the validity of legislations and the aggrieved proprietors came up to this Court either on appeal or on substantive application under article 32. the Constituent Assembly passed the Constitution (First Amendment) Act, 1951. Sections 4 and 5 of the Act which are material for our purpose are as follows :- It was at that stage that the respective State affected Insertion of new 4. After article 31 of the Constitution the following article shall be inserted, article 31-A. :i.nd shall be deemed always to have been inserted, namely:- 1952 The State of Bihar v. Maharaia dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das/. %6 SUPREME COURT REPORTS (1952} 3l~A. (1) Notwithstanding anything Saving of pro~i.ding for ac- providing for the rqmsitton of estates, State of any estate or of laws going provisions of this Part, no acquisition by fore- any rights etc. extinguishment or modification of any such rights shall be deemed to be void on inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this Part : the ground that it is therein or for I Provided that where such law is a law made by the article thereto unless such law, having been the President, has Legislature of a State, the provisions of shall not apply reserved for recdved his assent. the consideration of (2) In this article,- (a) the expression "estate" shall, i;elation to local area, have the same meaning as that expres- sion or its local equivalent has1 in relating to land tenures in force in that area, and shall inam or mttafi or other similar also include any grant; the existing jagir, (b) the expression to an "rights", estate, shall include any rights vesting in a proprietor, sub-proprietor, other iterme<liary and any rights or privileges in res- pect of land revenue. under-proprietor, tenure-holder relation Insertion of new stitution as article 31-B. following namely :-

#5. After article 31-A of inserted by section 4, article shall be the Con- inserted, prejudice Validation of certain Acts and Regulations. 31-B. Without generality tained in article 31-A, none of Acts and Regulations specified provisions con- Ninth Schedule or any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, S.C.R. SUPREME COURT REPORTS 967 judgment, decree or order and notwithstanding any of any court or the contrary each of the tribunal said Acts and Regulations shall, subject to the power of any competent legislature to repeal or amend it, continue in force." of which A new Schedule called the Ninth Schedule specifying thirteen several Acts and Regulations Bihar Land Reforms Act, 1950, was the first was added to the Constitution. The legal validity of Constitution (First Amendment) Act, 1951, has been recently upheld by this Court and all Courts must give effect to the two new articles which are now rubstantive parts of our Constitution. Article 31-A the Constitution and relates back date of article 31-B to the the Acts and Regulations specified in the Ninth Schedule. It has the provisions of the above not been disputed two newly added articles have to be taken into con- sideration in disposing of these appeals. respective dates of .. 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das/. amendments the position that as a tl1e Learned counsel appearing respondents accept result of the con- stitutional impugned Act has removed from the operation of the provisions article 14 of Part III of the Constitution including complain therefore, and that the respondents cannot, of the breach of the equal protection of the laws under arcicle 14 which was the only ground on which the respondents succeeded in the High Court. Learned counsel, however, maintain that although they cannot now challenge the constitutionality of the Act on ground that it contravenes or is inconsistent with or takes away or abridges any of the rights conferred by any of the provisions of Part III of the Constitution ; it is, nevertheless, open to them to call the Act into question on other grounds founded on other parts of the Constitution or on general principles of law. Accordingly Mr. P. R. Das formulates the following five principal grounds of attack against the Act, namely: A. On a proper interpretation of articles 245 and 246 read with entry 36 in List II and entry 42 1952 The State of JV¥!El v. Maharaja t!hiraja Sir Kameshwar Singh of Darbhanga and Others. Das/. 968 SUPREME COURT REPORTS [1952] List III the Bihar Legislature had no power to enact the said Act inasmuch as it makes no provision for the payment of just compensation . for the proposed acqui- sition of the zamindaries and tenures. B. Even if the Court does not accept the correct- ness of the arguments based on entry 36 in List II and entry 42 in List III and holds the respondents barred from going into the question of compensation by reason respondents are of articles 31(4), 31-A and 31-B still entitled to challenge the Act on the ground that the proposed acquisition is not for a public purpose. C. The Act constitutes a fraud on the Constitution, tllat is to say, while it purports to be in conformity with the Constitution it, in fact, constitutes a definance of it. D. The Act is unenforceable 111 provides for payment of compensation instalments' without specifying the period of between the instalments. that section 32(2) in 40 equal interval E. The Act delegated essential legislative functions to the executive Government. The heads of objections Mr. P. R. Das apparently look necessary, therefore, to consider the arguments advanced by him of them. formulated formidable and 1s close attention in support of each a is, therefore, the compulsory Re Ground A : That article 31 (2) imposes upon a acquisition of private pro- law for perty the obligation to provide for compensation and provision of that such obligation article 31(2) is not challenged. Nor is it claimed, in view of articles 31( 4), 31-A and 31-B, that it is the valid- open to the respondents to call in question ity of the impugned Act on that it contravenes or is inconsistent with or takes away or abridges the provision that the obligation article 31(2). What is urged to provide for compensation is not a provision to be found exclusively in article 31(2) but that it is also provided for in other parts of the Constitution compensation made the ground .. - 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das f. S.C.R. SUPREME COURT REPORTS 969 to acquire private far as such obligation is found provided that, in so elsewhere, the impugi:ed Act can well be challenged on the ground that it contravenes or inconsistent with or takes away or abridges the provisions of those other parts of the Constitution, for that ground of challenge has not been taken away by articles 31 ( 4), 31-A and 31-B, by reason of the delimiting words used therein. The argument is developed in the following property way. The State's power is, in essence, a power to compel the owner to sell his property when the public interest requires it. Autho- rity for this: proposition is to be found in Blackstone's Commentary (Broom's Edn.) p. 165 and in Cooley's C,onstitutional Limitations, 8th Edn., Vol. II, p. 1201, Footnote (3). Indeed, In some of the English statutes for compulsory acquisition of lands and hereditaments (e.g. 5 & 6 Vic. C. 94 and 8 & 9 Vic. C. 18) the word "purchase" was used to denote acquisition. As can be no sale without a price, there can be no com- pulsory acquisition of private property without a pro- vision equivalent value compulsory acquisition of pay just compensation private property is a principle of natural equity re- cognised by all temperate and civilized governments, that the right to compensation is an incident exercise of the power of eminent domain and that one is so inseparably connected with the other they may be siaid to exist, not as separate and distinct principles but, as parts of one and the same principle are well-established by a series of decisions of American courts quoted by Harlan J. in Chicago, Bur linghton and Quincy. Railroad Company v. Chicago(1). In England Lord Dunedian in Attorney-General v. De Keyser's Royal Hotel Ltd.(2), described the obli- gation to pay con- comitant to taking". obligation to pay compensation and is implicit in the power of acquisition. This obli- i.e., in money. That the obligation "a necessary therefore, It follows, just compensation, for payment of compensation inseparable (1) 166 U.S. 216; 41 L. Ed. 979. (2) [ 1920] A.C. 508. 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das/. 970 SUPREME COURT REPORTS [1952] "conditional upon" that compound concept. gation flows ftom the mere use of the word "acquisi- tion" in entry 36 in List II, as in entry 33 in List I. That word, by itself, according to Mr. P. R. Das, con- the concept of a notes a compound concept, namely, power of taking on just terms and confines the very legislative competency under those entries within If, however, limits of word "acquisition" in entry 36 in List II and entry 33 in List I does not by itself imply the obligation to pay just compensation, then, urges Mr. P. R. Das in the alternative, the words "subject the provisions of entry 42 of List III" occurring at the end of entry 36 in List II certainly brings in that obligation. On a plain reading of entry 36 in List II the power make law with respect to matters specified therein "subject to", that is to say, exercise of legislative power under entry 42 in List III. Those conclud~ng words\ Mr. P. R. Das says, import for compensation as provided the obligation to provide in entry 42 in List III into entry 36 in last mentioned thereby enlarge the content of legislative head comprising · entry so as to make it a \he compound concept referred to above. The third alternative position is that if the word "acquisition" in entry 36 in List II does not, by obligation to provide words. "subject that obligation as stated import List above, entry 42 in List III nevertheles~, be construed as conferring a power coupled with a duty, so that if law-making power under entry 33 in List I or entry 36 in List II is at all exercised, the law- making power under entry 42 in List III must, on the principle /ulus v. Lord Bishop of Oxford(') and adopted in Chief Controlling Revenue Autho by this Court rity v. Maharashtra Sugar Mills Ltd.('), also be exer- that the Bihar Legislature having cised. purported to exercise its power to make a law compulsory acquisition of property under entry 36 m of entry 42 !Ii" do not for compensation and the House of Lords laid down by It is urged provisions I)st II should, itself, ( 1) L.R. 5 App. Cas. 214. (2) [1950] S.C.R. 536. ... 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das/. S.C.R. SUPREME COURT REPORTS 971 laying down any List II but not having made any law principle for determining what may, in the eye of the law, be regarded as just compensation at all, the Act is ultra vires and void. The arguments thus deve- the merit loped by Mr. P. R. Das undoubtedly have certainly call for very careful consideration. ingenuity and apparent cogency attractive that the State and Incidental to this primary object To cut at the root of the above argument the learned Attorney-General appearing the appellant State contends that the impugned Act is a law made with respect to matters mentioned in entry 18 in List II and not under entry 36 in List II. The contention is that it is essentially a leg~slation for land reforms and alteration of land tenures. It is pointed out interests of all zernindars and in- Act eliminates the tenure-holders so termediate actual tiller of the soil may be brought into direct relationship. acquisition of the various interests in the land. Re- ference is made to the cases of The United Province; v. Mst. Atiqa Begum and Others('), Thakur /agannath Baksh Singh v. The United Provinces(2) and Megh Raj -and Another v. Allah Rakhia and Others(8) in support list, which is of the proposition that each entry in the a category or head of the subject-matter of legislation, must be construed as widely as possible so as in- This lien of reasoning clude all ancillary matters. J. but was found favour with Shearer rejected by Reuben J. and S. K. Das J. There is no doubt "land" in entry 18 in List II has been construed in a very wide way but if "land" or "land tenures" in that entry is held to cover acquisition of entry 36 in List II will have to be held as wholly redundant, so far as acquisition of land is concerned, a conclusion to which I am not prepared to assent. In my opinion, to give a meaning and content to each of the two legislative heads under entry Ht and entry 36 in List II the former should be read as a legislative (3) [1947] F.C.R. 77. land also, (1) [1940] F.C.R. 110 at p. 134. (2) [1946] F.C.R. 111 at p. 119. • 1952 The Stat• of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das/. 972 SUPREME COURT REPORTS [1952] Further, impugned Act purports tenures and category or head comprising land and all matters connected therewith other than acquisition of land which should be read as covered by entry 36 in List II. acquire all arrears of rent and a la~ for acquisition of to be a the arrears of rent cannot possibly be said in entry 18 law with respect to matters specified in List II for it cannot be supposed to be a the meaning relating to the collection of rent within of that entry. On this point I find myself in agree- ment with Reuben J. and S. K. Das J. and I cannot accept the arguments of the learned Attorney-General to the contrary. Therefore, the arguments of Mr. P. R. Das founded on entry 36 in List II and entry 42 in List III cannot be rejected in limine but have to be considered and I proceed to do so immediately. - to be important question the obligation to pay compensation is con- That that is to say, accompanies, the power of comitant to, compulsory taking of private property by the State cannot be disputed. The first whether this obligati'on is implicit in the term "acquisi- tion" as used in entry 36 in List II, or in other words whether this obligation is inferred simply from the nse of that term as a part of the content or mean- In Attorney-General v. De Keyser's Royal ing thereof. Hotel Limited (supra) Lord Dunedin pointed out that the power of acquisition was, in its origin, derived from the prerogative of the Crown and that the pay- ment of compensation was originally a matter of negotiation and bargain between the Crown and the subject, but came to be determined later on by statutes of local application and finally by statutes of general application and that, therefore, the Crown, which an assenting party to every statute, must, in effect, be regarded as having consented prerogative being made subject to payment of compen- that case, however, sation regulated by statutes. it was not disputed taking itself was a matter of prerogative right. In United States of America the power of eminent in terms, conferred on domain was not originally, the exercise of in arguments In • .. -• 1952 The State of Bihar v. Maharaja dhiraja Sir Kam~shwar Singh of Darbhangt¥ and Others. Das/. • ., S.C.R. SUPREME COURT REPORTS 973 It It an inherent attribute the United States by any provision of the Federal Constitution, but this power has always been recog- sovereignty of the State. So far as the United States are concerned, the Fifth Amendment by providing that private property shall not be taken for public use without just compensation gave a constitutional recog- nition to the right of eminent domain and, to protect the subjects, imposed a limitation on the exercise of that right by the State. This indicates the power of to pay compensation acquisition and the obligation are two separate and distinct concepts although If the obligation to pay com- second follows the first. pensation were an integral part of the concept or itself, then this part of the Fifth meaning of "taking" Amendment was wholly unnecessary. follows, that the expression "acquisition" does not, therefore, by itself and without more, import any obligation pay ·compensation. is urged by Mr. P. R. Das that entry 42 in List III really implements the obli- gation implicit in entry 36 in List II and entries are complementary to each other. If this obli- gation were not implicit in entry 36 in List II where else, to pay compensation to be found ? The obvious answer that that obligation is to be found in article 31(2) in . Part III of our Constitution. The obligation pay compensation may be introduced as a· part of the a legislative power itself, in which case it becomes composite power, namely, a power to make law with respect to acqui.sition circumscribed by the· obligation 31 to provide for compensation. section (XXXI) of the Commonwealth of Australia Constitu- tion Act the acquisition of property on just terms has legislative power of been made a head or category of the Commonwealth Parliament. There the power not to make a law for the acquisition of property sim- pliciter but is to make a law for the acquisition of property on just terms which connotes that the legis- lative power the necessity itself is circumscribed by for providing just terms. But there is no overriding is the obligation is asked, Thus 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhan ga and Others. Das]. 974 SUPREME COURT REPORTS [1952] respect, requires to make laws with necessity of constitutional law that I know of, or that has been brought to our notice, which the obligation to pay compensation for the acquisition of property must be made part and parcel of the very legislative power to make a law with respect compulsory acquisition of private property. It must depend on the provisions of the particular constitution under consideration. What do we find in our Con- stitution ? We find that under article 246 Parliament has exclusive power to make laws with respect, ulia, to matters specified in entry 33 in List I, namely, "acquisition or requisitioning of property for the pur- poses of the Union, that the State Legislatures have exclusive power alia, to matters specified in entry 36 in List II, namely, the "acquisition or requisitioning of property except for the purposes of the Union subject to the provision of entry 42 of List III" and that both Parliament and the State Legislatures may make laws with respect to matters set forth in entry 42 in List III, namely, the principles for determining the compensation and form and manner of giving such compensation. This legislative power of Parliament or of the State Legis- latures is, by article 245, made "subject to the provi- sions of this Constitution." One of the provil; ions 0f the Constitution is article 31 (2) under which no pro- perty can be "taken public purposes under any law authorising the taking of such possession or such acquisition unless provides for compensation for the property and either fixes the amount of in which, the principles on which, and compensation to be determined and given." The scheme of our Constitution obviously is to provide the three things separately, namely, the power of making a law for acquisition of property in article 246 with entry 33 in List I and entry 36 in List II, the obligation of such law to provide for compensation article 31 (2) and the power of making a law laying down the · principles for determining such compen- sation in article 246 in List III. read with entry 42 possession of or acquired compensation or the mam:1er specifies ' ... • .. , 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das f. S.C.R. SUPREME COURT REPORTS 975 article f acit cessare According to this scheme it is not necessary at all in List I and entry 36 in List II, to regard entry 33 which are mere heads of legislative power, as contain- ing within themselves any obligafion to provide for the In other words, it is not payment of compensation. necessary to treat the obligation to pay compensation as implicit in or as a part or parcel of these legislative themselves, for it separately and expressly 31 (2). The well-known provided maxim expressum indeed, a principle of logic and common sense and not merely a technical rule of construction (See Broom's Legal Maxims, 10th Edn., p. 443 at p. 452). The law of express provision in article 31 (2) acquisition, compensation, will, therefore, necessarily exclude all suggestion of an implied obligation to provide for compensation sought to be impo.i;.ted into the meaning of the word "acquisition" in entry 36 II. In the face of the express provision of article 31 (2) there remains no room £or reading any such impli- cation in the legislative heads. to be valid, must provide in order in List tacit um that a is, itself as used Mr. P. R. Das suggests, in the word "acquisition" to provide for compensation in the alternative, that if is not the obligation implicit entry 36 in List II that obligation is a~tracted and made a part and pared of that entry by reason of the words "subject to the provisions of entry 42 of List III". The last mentioned words are, however, not to be found l.n entry 33 in List I and this pan of Mr. P. R. Das's argument would lead to this anomal- ous result to provide for compensation is made a part of the legislative power under entry 36 in List II by virtue of its last few words quoted above, no such obligation is attractedt and made part of the legislative power under entry 33 in List I, and that, therefore, in making a law with respect List I Parliament, unlike the State Legislatures, will not be bound to provide for any compensation at all. the intention of the framers This cannot possibly be to acquisition of property under entry 33 the obligation that while f. 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das/. • 976 SUPREME COURT REPORTS [1952] I agree with S. K. Das J. to indicate that the scope of entry 36 restricted, that is to say, of our Constitution. Further, Mr. P. R. Das reads the words "subject to" as meaning "conditional upon" the exercise of the legislative power under entry 42 in List III, that is to say, conditional upon fulfilling the the form obligation to provide for compensation and and the manner in which such compensation is to be that the~ words given. "subject to" have not the meaning sought to be given uo them by Mr. P. R. Das but that they mean "but not" so as List II is the subject- matter of entry 42 in List III is not within the content If entry 42 in List III were, of entry 36 in List II. by reason of the words "subject to the provisions of entry 42 of List III" occurring in -entry 36 in List II, to be read as having been made a part of the content in List II then it may well be argued of entry 36 in view of article 246, . Parliament will not that, respect be competent to be deter- principles on wh'ich compensation mined. argument and out of subject- matter of entry 42 III has been excluded from the content of entry 36. in List II by the words "subject to" et cetera and Parliament may, therefore, freely make a law with respect to the matters excluded from entry 36 in List II and set forth as a separate and independent item in entry 42 'in List III. This consideration was not material in connection with entry 33 in List I which explains the omission of the words "subject to" et cetera from that entry. to prevent caution in order aqundant to maintain law with that - the in List It is Mr. P. R. Das finally urges that if the obligation to provide for compensation is not implicit in the word in entry 36 in List II and if that obliga- "acquisition" tion is not to be read into that entry even in view of the words "subject to .............. " at the end of it, even then if the State exercises its power to make a to acquisition of property under law with respect entry 36 in List II it is the duty of the State Legisla- ture to make a law also with respect to matJters speci- fied in entry 42 in List III on the principles that as • . ..., • • 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das/. S.C.R. SUPREME COURT REPORTS 977 for Parliament or the State Legislatures law under any of the entries in any of entry 42 in List III confers a power on the Legisla- ture for the protection of the interest of persons; whose property is compulsunly acquired, such power must, therefore, be regarded as coupled with a duty to exer- cise it. No authority has been brought to our notice establishing or even suggesting that the principle laid ·dawn by the House of Lords in Julius v. Lord Bishop of Oxford (supra) has been extended to the exercise of Legislative power and I am not prepared to assent to the proposition. Article 246 does not make it obli- gatory make a Lists in the Seventh . Schedule. Entry 42 in List III does not, therefore, impo~e any duty upon Parliament or the State Legislatures to make any law for payment of compensation. What requires Parliament or State law for compulsory Legislatures, when making . a acquisition of private property, to provide for com- thereof or pensation and either specify which the compensation is to be determined and given is the provision of art'icle 31 (2). Entry 42 in List III only constitutes a legislative head under which Parlia- ment or the State Legislatures may make a law so as the obligation expressly imposed on to give effect to them by article 31 (2). In view of the clear provision of that article it is wholly unnecessary to read entry 42 in List III as imposing an Legislature on the principle referred to in the Hoose of Lords case. the principles on which and the manner implied duty on the amount to fix That the obligation to provide for compensation not included in the content of the legislative power u_nder entry 36 in List II, by itself or read with entry 42 in List III, will be made further clear when we come to consider closely clauses (4) and (5) of article 31 and article 31-A. Article 31 ( 4) protects a law of the descrip- the provisions. of tion mentioned article 31 (2). It follows, therefore, that what is sought to be protected by article 31 (4) is a law for the acqui- sition or taking possession of property which does not, for compensation or amongst other things, pro-ifide against therein 126 1952 The State of Bihar v. Maharaia dhiraia Sir Kameshwar Singh of Darbhanga and Others. Das/. 978 SUPREME COURT REPORTS [1952] the principles on does not fix the amount or specify which and the manner in which the compensation is to be determined and given, for otherwise there would be no necessity for any protection. The question at once arises as to whether there is any legislative entry in List II under which a law for acquisition or taking possession of property without compensation can be made by a State Legislature. To test the validity of Mr. P. R. Das' s argument and to avoid the complica- tion arising out of the residuary powers of Parliament under article 248 and entry 97 of List II I have taken the case of a law otf acquisition made by the legislatures of a State which also come within article 31(4). Is there, then, any entry in List II under which a State Legislature can make a law for acquisition without compensation or pub!'ic purpose ? Obviously there is none, except entry 36 in List II. If that entry by it- self or read with entry 42 in List III has any impli- cation as suggested, namely, that a law for acquisition of property made under entry 36 in List II without a for compensation wiJll be beyond the legis- provision lative compentency there is no other entry under which such a law can be made by a State Legislature and there can, therefore, be no point in making a prOIVision in article 31(4) for protecting, against article 31(2), a law which, on this hypothesis, cannot be made at all. Article 31(4) postu- lates a law which offends against 31(2) and so far as the State Legislatures are concerned there is no entry in List II except entry 36 under which such an offending law may made by the State Legislatures. This cir- cumstance unmiistakabRy establishes thait entry 36 in List II, by itself or read with entry 42 in List III, ha.s not any such implication as is imputed to it. Likewise . tak:e article 31(5) (b) (ii) which protects the provi- sions of any law which the State may hereafter make for the promotion of public health or the prevention of danger to life or property. The law wh'ich is thus sought to be protected must also involved acquisition of property without any provision. for · compe~sation, for otherwise there can be no occas10n or necessity for of the State \Legislatures, • "· • 1952 The State of Bihar v. Maharaia dhiraia Sir Kameshwar Singh of Darbhanga and Others. Das/. - • S.C.R. SUPREME COURT REPORTS 979 implicit to him, 'in entry 36 is, according any protection against article 31 (2). A law of this kind, in so far as such law provides for acquisition of property, must necessarily be made by a State Legis- If Mr . lature, if at all, under entry 36 in List II. P. R. Das's contentions were correct, a law for promotion of health or the prevention of danger to life or property involving the acquisition of property without a provision for compensation, which is what is sought to be protected from article 31 (2), can never be made, for the obligation to provide for compensa- List II, by itself or read with entry 42 in List III, and there is no other entry under which a law may be made by a State Legislature with respect to acquisi- f1on of property. It is futile to attempt to get over this anomaly by suggesting that clauses ( 4) and (5) (b) (ii) of article 31 have been inserted in the Constitution ex abundanti cautela, for, if Mr. P. R. Das were correct in his submission, no amount of caution was necessary for protecting a law that, ex hypothesi, cannot be made at all. Similar arguments may as well be founded on article 31-A, for that article also protects a article 31 (2) which is in Part III of the Constitution. that article 31-A postulates a valid It law made by a competent ambit of its legislative powers. If a State Legislature in making a law for the acquisition of property for a public purpose under entry 36 in List II must pro- vide for compensation then a law made conformably that entry by a State Legislature will require no protection ar all agalnst article 31 (2), and article 31-A must be regard- conclusion In my opinion clauses ( 4) and (5) (b) (ii) of article 31 and article 31-A In my clearly negative Mr. P. R. Das's proposition. judgment, for the major premise in the arguments advanced by Mr. P. R. Das the obligation to pay compensation is implicit in entry 36 in List II by is unsound. itself or read wiith entry 42 this supposed requirement of and unnecessary. Surely, is manifestly untenable. the first head, namely, reasons stated above, legislature within as meaningless is - suggested in list III 8-10 S. C. lnida/71 980 SUPREME COURT REPORTS [1952] 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. 1 Das/. The obligation to provide for compensation being, as I hold, a provision of article 31 (2) and not being im- plicit m or a part and parcel of the legislative power itself under entry 36 in List II read by itself or in conjunction with entry 42 in List III, the impugned Act cannot, by virtue of article 31 ( 4), 31-A and 31-B, be called in question on the ground that it contravenes or is 'inconsistent with or takes away or abridges any of the rights conferred by the provisions of clause (2) of a~ 'de 31, to say, that it does not provide for compensation. that is III in List Assuming that the obligation to pay compensation which is expressly provided in article 31 (2) ·is also implicit in entry 36 in List II by itself or read with entry 42 respo!ldents cannot, even then, be permitted to call in question the validity of the impugned Act on the ground that it does not pro- vide for compensation, for then they will be doing exactly what they are forbidden to do by article 31 (4) and the newly added articles. Article 31 (4) and the added articles debar the respondents from questioning the validity of the Act on the ground, inter alia, that it contravenes or is inconsistent with or takes away or abridges any of the rights conferred by the provisions of clause (2) of article 31. The emphasis articles number of the article or the Part of the Constitution. It is obvious that the real substance of the matter is that articles 31(4), 31-A and 31-B expressly seek prevent a challenge to the validity of the Act based on the ground, inter alia, that it does not provide for compensation. TIJils obliganbn to provide for compen- sation is no doubt one of the provisions of articles 31 (2) but self same provision be found elsewhere in the same Constitution, e.g., entry 36 in List II or entry 42 in List III, then that "prorvision" must also be regarded as having been covered by article 31 ( 4) and the two added articles, for otherwise those articles will be ren· two construc- In my opinion, dered nugatory. tions are possible, the Court should adopt that· which if, as contended by Mr. P. R. Das, the "provisions" than on rather on • .. • S.C.R. SUPREME COURT REPORTS 981 in mind intention of the makers of that which will stultify will implement and discard the Con- the apparent stitution. Further, it must be borne article 31 ( 4) which applies "notwithstanding any- thing in this Constitution'', will, by force of the very words, protect the Act against everi in- competency, if any arising out of the alleged non- compliance with any, of entry 36 in List II and entry 42 in List III. In my judgment the respondents are not, by reason of articles 31 ( 4), 31-A and 31-B, entitled to call the Act in question on the ground that it does not provide for compensation, whether the ground ~s formulated as a breach of article 31 (2) or of the implied provision, if any,. of the legislative heads mentioned above. implied provisions, the suggested legislative 1952 The State •f Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanz11 and Others. DRs /. It will be noticed that the argument that the the assumption .Act is unconstitutional is founded on it has not laid down any principle for determining compensation as required by entry 42 in List III and that the provision for compensation is wholly illusory. Chapter V of the Act deals with assessment of compen- sation. Shortly put, the scheme is to start with the gross assets which are taken to be synonymous with the gross income and then to make certain deductions therefrom and to arrive at the net assets. Then the compensation is to be calculated at a sliding scale 0£ rates varying from 20 to 3 times of the net income. To the amount thus determined is to be added a moiety of the accumulated arrears of rent etc. and the com- pensation for the mines and minerals as determined under section 25. Ex f acie, it cannot be disputed that the Act does prescribe some principles for determin- the proprietor c.r tenure-holder. deduction of 5 to 20 per cent. of the gross assets as and by way of cost of management is quite arbitrary. It is said that although it is well known that the per- centage of cost of management income of a small estate is greater than that of a larger estate, yet the Act provides for deducting 20 per- the case of proprietors cent. of It is, however, pointed out the compensation payable the gross assets in relation • 1952 The State of Bihar v. Maharaia dhiraia Sir Kameshwar Singh . of Darbhanga and Others. Das/. 982 SUPREME COURT REPORTS [1952] is next I do not to saying larger estates but only 5 per cent. case of the smaller estates. Objection to the deduction of any amount under the head of works of benefit to raiyats the and also to the scale to my minct, of such deduction. These arguments, do not, on close scrutiny, amount tha:: the Act does not lay down any principle for determin- the compensation. The real underlying implica· tion of these arguments, as I understand them, is that the principles are not good enough in that they do .not produce fair compensation. think the Court can go into the policy of the legislation. All that the Court is concerned with is to see whether any principle has been laid down as mentioned in entry 42 in List III. It is true that the percentage of costs of management calculated on the basis of the income of a big estate less than that of a smaller estate, but it is quite clear that the Act has fixed the scale of deducion under this head and under the head of works of benefit according to tenure- impossible to say that the holder provision for deduction for works of benefit raiyats is not supported by any principle. A landlord .is expected to spend money on works of benefit to his raiyats, e.g., providing irrigation, charitable dispensary, schools and so forth and be it said to the landlords that in practice they do spend money on this account. There- fore, there is nothing wrong, when calculating the net income of a landlord, to deduct something which the landlords should and some of them often do, in prac- tice, spend under this head. absence of principle in this provision. The rate of deduction, I have said, has been fixed according to the capacity of the proprietors or tenure holdens. It shown, and that in many cases a the basis of calculation of principles laid down in in the Act operates to reduce the gross income to a very small net income. To take only one barbhanga estate is about Rs. 47,85,069, the deduction the capacity of the proprietor or the gross annual income of the credit of some of the net income on tanks and wells, it is not denied I see no instance, to bear it. It • j • • 1952 The State of Bihar v • Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das/, .. S.C.R. SUPREME COURT REPORTS 983 the Act but laid down in in the Act inadequate the Act is about Rs. 44,88,585, and actually produces it may be said allowed by net income computed according to the principles laid down in the Act comes to about Rs. 2,96,484 or say Rs. 3 · lacs and the compensation payable rupees Maharajadhiraj of Darbhanga will be only 9 lacs. It has also been shown that at least in one case, e.g., iu the case of the Raja of Purnea the compensation calculated according to the principle laid down in the Act works out at a deficit figure. The fact that in one isolated case the calculation may work out in thi~ way, does not, however, prove that no principle has been laid down. Indeed, in all other cases the principle laid compensation, however in some to be If a principle has been laid down, then cases. the pro- visions of entry 42 in List III are amply satisfied and If no question of legislative incompetency can arise. a principle has beeh principle does not in fact produce any compensation in any rare case or adequate compensation in some then the real complaint should be, not that no principle has been laid down but, that the principle laid down does not produce what may be called just compensation. That provisions of article 31 (2) but certainly not against entry 42 in List III and in view of articles 31 ( 4), 31-A and 31-B the Act cannot be challenged for non-com- pliance with article 31 (2). On the other hand, even if i;t is held that no principle has, in fact, been down by the Act, as contended, then that fact not only amounts to a breach of the provisions of entry 42 in List III but also constitues a breach of the provi- sions of article 31 (2) which clearly and emphatically re- quires which the compensation· is to be given and a breach of this "provision", call it a provision of article 31 (2) or one of entry 42 in List III, cannot, for reasons already stated be questioned in view of articles 31 ( 4), 31-A and 31-B. It should also be remembered that article 31 ( 4) by reason of the words "notwithstanding law to either fix the compensation or the manner the principles on which and result may offend aga·1nst • ; • ·- y 984 SUPREME COURT REPORTS [1952] 1952 . The State of Bihar v. Maharaja tlhiraja Sir Kameshwar Singh •f Darbhanga •nd Others. D"' /. occurring against out of this Constitution" the Act even incompetency arising therein anything will also protect the alleged legislative non- the Constitution compliance with all provisions of the payment of compensation or the exist- relating ence of a public purpose including the supposed re- quirement of producing actual compensation said in List III. be implicit in the provisions of entry 42 In my judgment, the Act cannot be called in question on the ground of legislative incompetence of the Bihar Legislature to enact it under entry 36 in List II or entry 42 in List III. What I have stated above is sufficient to repel the the Act by first ground of attack Mr. P. R. Das. But before passing on to the second main ground of attack I think it right to deal with a few subsidiary points canvassed before us. levelled against It is said that section 3 of the Act, which is its main operative section, does not contemplate or authorise the acquisition of arrears of rent at all, for the notifi- cation under that section only refers to the vesting of the estates or tenures in the State. It is, however, to be noticed that the consequeunce of issuing that notifi- cation is that the arrears of rent including all that are mentioned in clause (b) of section 4 are also to vest in, and be recoverable by, the State. This vesting of arrears of rent in the State necessarily implies transfer of the rights of tenure- holders to the State and this process must, therefore, the State, amount to the acquisition of Therefore, acquisition of the arrears of rent by the State. that right by the Act does contemplate the proprietors or in effect, On the authority of a passage in Willis' Constitu- tional Law, p. 816, that the power of is argued eminent domain cannot be exercised with respect to money and choses in action besides certain other un- is . founded on usual forms of property. This passage certain earlier decisions of the American Courts. It is, however, clear from Nichols on Eminent Domain, the case of Cincinnati Vol. I, p. 99, paragraph 2, an<l • \. - S.C.R. SUPREME COURT REPORTS therein in action. that expression v. Louisville & N. R. Co.(1) cited that the right of eminent domain can modern view is In any case we are be exercised on choses to consider whether arrears of rent are "property" in in our the sense m which Constitution and understood m our law. What are the arrears of rent but rents that have fallen due but have not been paid? It is not at all money in the till of the landlord but it is a debt due by the tenants. It therefore, nothing but an actionable claim against is, is undoubtedly a species of "pro- tenants which perty" which is assignable. Therefore, it can equally be acquired by the States as a species of "pro- perty." ts used 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das/. It section used m for taking this fifty per cent. of taking of the estates or "compensation" taking of mines and minerals but not It is finally urged that the Act makes no provision item of for payment of compensation 24 property. connection tenures and also with the in con- the arrears of nection with to the compen- rent which are directed to be added sation. But this prov1S1on for adding the fifty per cent. of the arrears also appears in the chapter headed "Assessment of Compensation" the process fifty per cent. of the arrears the compensation. Further, assessment why is this: fifLY per cent. given to the proprietors or tenure-holders at all unless it were for compensation? It ts pointed out that when the State takes away a lac of· rupees and returns 50,000 rupees, it, in reality, pays no compensation but by contri- vance only thet other 50,000 rupees for nothing. This argument sounds plausible at first but is not founded on any good principle. This argument arises only because a moiety js paid back, as it were, If compensation for money were m the same com. the value of a made, say, by g1vmg some moiety of the money taken, the same argument would that could be said not have been available and all and, ts added m takes away this shift therefore, land of (1) 223 U.S. 390; 50 L.Ed .. 481. 1~7 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das]. 986 SUPREME COURT REPORTS [1952] In said to be a arrears would have been that the land so given, not being equivalent in value to the money compulsorily away, could not be JUSt compensation. That argument, in view of articles 31(4), 31-A and 31-B, would , of course, have been futile. But I see no difference in principle or law when compensation for a acquisition of arrears is made in money. case if only a moiety of the amount of returned the obvious complaint will be that the return is not fair or adequate compensation of 50,000 rupees complaint for taking away Rs. 1,00,000 may have prevailed had there been no provision those we have in articles 31(4), 31-A and 31-B. this, the argument completely overlooks Apart from that the arrears of rent are not really cash in the fact the till of the proprietor or tenure-holder but is only a the market value d~bt due by the tenants. What of this book debt ? This debt will have to be realised, possibly by suit followed by execution proceedings in- volving time and money in costs. Part of it, quite conceivably, may not be realised at all. Therefore, the the risk< of realising or not realising the State takes arrears of rent but irrespective of efforts for arrears is in a lump added to the compensation. This, indicates clearly that compensation is in to my mind, fact paid for the arrears of rent and I am not prepared to say that the payment of a moiety of the book debts as compensation is so illusory as to amount to nothing, as contended by Mr. P. R. Das. Even if it be inadequate, the grievance will be not that no principle has been laid down in required by entry 42 in List III but, that the principle so laid down does not produce adequate compensation and there is, therefore, a contravention of the provisions of article 31(2). That defect cannot, however, _be made a ground of attack in view of articles 31(4), 31-A and 31-B for reasons ex- plained above. the results of their realisation the fifty per cent. of the Act as • i • Re Ground B: The second point urged by Mr. P.R. Das is that even if the Court does not accept the argu- ment as to the necessity for providing for compensation '\ · . 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga . and Others. Das/. .. > " S.C.R. SUPREME COURT REPORTS 987 the Act on in List II and respondents are, nevertheless, entitled entry 42 being implicit in entry 36 in List III and holds the respondents are, by the provisions of articles 31 ( 4), 31-A and reason of from questioning the validity of 31-B, debarred that it does not provide for compen- Act on the ground s.i.tion challenge the ground of the absence of a public purpose. That the existence of a public pur- pose is an essential prerequisite to the exercise of power of compulsory acquisition has not been disputed the learned Attorney-General. The contention put forward on behalf of the respondents is that the neces- sity for the existence of a public purpose as a condi- to compulsory acquisition of private tion precedent property is not a "provision" 0£ articl\! 31 (2) but is a requirement of entry 36 in List II or entry 42 List III. The words "for public purposes" do occur in article 31 (2) but it is said that there is a distinction between a "provision" and an assumption. It is urged that article 31 (2) assumes a law authorising the taking of possession or the acquisition of property for a public that the property shall not be purpose and provides taken possession of or acquired even for that public law also provides for compensa- purpose unless that the only "pro- tion. vision" of article 31 autho- rising the acquisition for a public purpose must provide of property "provision" only for compensation and that cannot be made Act by reason of articles 31 ( 4), 31-A and 31-B of the Constitution. This argument has favour with Reuben J. and S. K. Das J. The latter learned judg- Judge; after referring to a passage in his own the earlier case of Sir Kameswar Singh v. The ment in Province of Bihar(1) concludes as follows :- a ground of attack on (2) taking of possession or therefore, concluded It is, "Clause (2), strictly speaking, does not, in express words, make "public purposes" a condition precedent .to compulsory acquisition but such acquisition can be for public purposes only ; <loes so by necessary implication." assumes rather (I) A.I.R. 1950 Pat. 392. 1952 The State of Bihar v. Maharaia dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das/. 988 SUPREME COURT REPORTS l1952] The learned Judge then following passage judgment of my learned brother Mukherjea J. in Chiranjit Lal Choudhury v. The Union of India & Others(') :- refers the acquisition of "Article 31 (2) of the Constitution prescribes a ·two- fold limit within which such superior right of imposed limitation State should . be exercised. One taking possession of private property which is implied in the clause is that such taking away must be for public purpose. The other condition is that no property can be taken unless the law which authorises such appropriation contains a provision for payment of compensation in the manner laid down in the clause." that article 31 I do not, however, see how the above observations of Mukherjea J. in any way support the argument of Mr. P. R. Das that the existence of a public purpose is not a provision of article 31 (2) but is an inherent condition of any legislation for compulsory acquisition It is significant that Mukherjea J. of private property. (2) "prescribes" a two-fold recognises limit. Surely, a Emit which is "prescribed" by articles must be a provision · thereof. In any case, the clause must, nevertheless, the expression be a provision of "provision" include implied as well as an express prov.1S1on. Be that as it may, I am prepared to go further and say, fur reasons I shall presently explain, that the require- ment of a public purpme as an essential prerequisite to compulsory acquisition is, if anything, essentially a provision of tha.t clause and an integral part of it. certainly wide enough the clause, implied Article 31 is one of a group of articles included in Part III of tl1e Constitution under the heading "Funda- mental Rights". right in so far as it protects private property from State action. Ch use (1) of the article protects the owner from being deprived of his property save by authority of law. A close examination of the language of clause ( 1) will. fundamental It confers (2) [ 1950] S.C.R. 869. • ' • 1952 The State of Bihar v . Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das/, • • S.C.R. SUPREME COURT REPORTS 989 show that this immunity is a limited one and this will at once be clearly perceived if we convert the negative language of clause (1) In its positive form clause (1) will read :- into positive language. "Any person may be deprived of his property by authority of law". It right. emphasise fundamental fundamental The only limitation put upon the State action is the requirement that the authority of law is a prerequisite for the exercise of its power to deprive a person of his property. This confers some protection on the owner in that he will not be deprived of his property save by authority of law and this protection is the measure of immunity from State action as a that the clause has been worded in negative language. Likewise, clause (2) is worded 'm negative language in right contained order to emphasise the therein. the ambit and necessarily requires a statement of scope of the State action and to fix ambit and scope of the State action it is necessary to specify the limitations on limitation right. Clause (2) of the article, in its positive form, omitting words unnecessary for our present purpose, w111l read as follows :- The enunciation of this the State action, the fundamental the measure fundamental fundamental i' "Any property, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . may be taken possession of or acquired for public purposes auhorising under any possession or such acquisition the law provide for compensation for the property taken possession of or acquired ............ " taking of Put in the above form, the clause makes it clear at once and beyond any shadow of doubt that there are three limitations imposed upon the power of the State, namely, (1) that the taking of possession or acquisition of property must be for a public purpose, (2) that such taking of possession or acquisition must be under a law authorising such taking of possession or acquisition the law must provide for compensation and (3) that 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das/. 990 SUPREME COURT REPORTS [1952) essential thi; clause. Unless immunity at all. I am, taken or acquired. These three for the property so limitations constitute the protection granted owner of the property and is the measure of his funda- limita- mental right under the article, the article would tions were provisions of have afforded no therefore, clearly of opinion that the existence of a public pur- pose as a prerequisite to the exercise of the power of compulsory acquisition integral is an If the require- part of the "provisions" of clause (2). ment of a public purpose were not a provision of it will obviously lead us to the un- article 31 (2), then tenable conclusion that Parliament will be free under its residuary powers under article 248 and entry 97 of List I of the Seventh Schedule to make a law for ac- quiring private property without any public purpose at all and to the still more absurd result that while Parliament will have for compensation under article 31 (2) in a law made by it for acquisitio• of property for a public purpose it will not have make any provision for compensation in a law made for acquisition of property to be made without a public purpose. Such could never have been the intention of the framers of our Constitution. The existence of a public purpose as a condition precedent to the exercise of the power of compulsory acquisition being then, as infringement I hold, a "provision" of article 31 (2), an of such a provision cannot, under articles 31 (4), 31-A and 31-B, be put forward as a ground for questioning the validity of the Act. to provide • • • Mr. P. R. Das's second line of argument on for the existence of a main head is that the necessity public purpose is . implicit in entry 36 in List II and that the existence of a public purpose is also a re- quirement of entry 42 in List III which is made a part of entry 36 in List II by virtue of the words "subject to" etc., appearing at the end of that entry and his conclusion is that in the absence of a public purpose the Bihar Legislature had no legislative com- petency under those two entries to enact the impug- ned Act and that this ground of attack, is still available 1 • • 1952 The State of Bihar v • Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das/. • , S.C.R. SUPREME COURT REPORTS 991 terms, limited in List III the provisions public purpose. the Constitution as articles to ·him notwithstanding 31 (4), 31-A and 31-B. He does not rely on any other part of insisting on the existence of a public purpose as a prerequisite for compulsory acquisition of private property. Entry 36 covers any purpose except the purpose of the Union and is not, Secondly, the argument based on the words "subject to" etc. at the end of entry 36 in List II which are supposed to import the provisions of entry 42 entry 36 in List II is not well-founded and it becomes obvious when we look at entry 33 in List I. There are no words at the end of that entry as "subject to" etc. and, therefore, the alleged requirement of a public purpose under entry 42 in List III cannot be said to be incorporated in entry 33 in List I. It would, there- that whereas under entry 36 in List II fore, follow which is to be read with entry 42 in List III by reason of the words "subject to" etc. in entry 36 in List II the Legislature of a State can only make a law for compulisory acquisition of property for a public pur- pose, Parliament may, under entry 33 in Llst I which does not attract entry 42 in List III, make a law for compulsory acquisition of property without a public purpose. Such a result could never have been intend- ed by the Constitution. Besides, turning to entry 42 in List III, I find nothing in support of Mr. P. R. Das's contention. The words "acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose" in that entry are merely words the preceding word "property". The descriptive of matters comprised in entry 42 in List III, as a legisla- tive head, are the principles for the determination of the form and manner of giv'ing compensation and is described compensation for property which having cannot possibly purposes. the stated acquisition the purpose or of property province of that entry to lay down any requirement for the of a public purpose as a condition precedent acquired· or That legislative head regarded as a requisitioned and much 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das]. • 992 SUPREME COURT REPORTS [1952] II and entry 42 In my opm10n entry 42 acqms1t10n of any property. in List III is of no assistance to Mr. P. R. Das for this part of his argument. Further, the reasons for which I have discarded his . arguments as to the obligation to provide for compensation being implied in entry 36 in List II by itself or read with entry 42 in List III will also apply to this contention mutatis mutandis and they need not be restated here. To put it shortly, the pro- visions of article 31 (2) which, as I have explained, require the existence of a public purpose, will exclude the implication sought to be read into entry 36 in 111 List III. Secondly, what List articles 31 ( 4), 31-A and 31-B exclude is a challenge to the Act on the ground of contravention of the "pro- If the "provision" of clause (2) vision" of clause (2). of article 31 as to the necessity for the existence of a public purpose as a prerequisite to compulsory acquisi- tion of property is also to be regarded as implicit in (4), 31-A and 31-B and in particular article 31 (4) which contain the words "notwithstanding anything Constitution" will protect the Act from such implied prov!S!on, already explained. Mr. P. R. Das's second main point must accordingly be rejected as untenable. legislative entries, surely articles 31 I have reasons respondents Assuming that the necessity for the existence of a public purpose is not a provision of article 31 (2) but is a provision only of entry 36 in List II and/or of entry 42 in List III and that consequently articles 31 ( 4 ), 31-A and 31-B do not preclude the challenging the validity of the Act on the ground of the legislative incompetency arising out of the absence of a public purpose, the question still remains whether there is in fact a public purpose within the meaning of It is to be noted our Constitution to support the Act. that there is no recital of any public purpose . in the Act itself, but it is conceded that this circumstance is It is, however, not fatal to the validity of the Act. urged that this circumstance, nevertheless, shows the Legislature had, at the time of the passing of the Act, no public purpose It is claimed in its view. 1952 The State of Bihar v. Maharaja dhiraja Sir · Kame sh war Singh of Darbhanga and Others. Das/. S.C.R. SUPREME COURT REPORTS 993 It is not disputed the absence of any such recital, that, apart there is no indication whatever as existence of any public purpose in any of the operative provi- sions of that as a the Act. large sum of money result of this enactment a very now payable by the tenants as and by way of current rent and arrears of rent to their respective landlords will be intercepted by the State but it is urged, on the in Cooley's Constitu- authority of certain passages tional Lirri1tations, 8th Edn., Vol. II, p. 1U8 (Foot- note 1) and in Professor Willis' Constitutional Law, p. 817, that the exercise of the power of taxation and not that of the power of eminent domain is the legiti- mate means for swelling the public revenue. That the Act has no public purpose to support it is sought to be established by saying that ln Bihar the recorded pro- prietors are about 13,35,919 in a family, assuming nearly five and a half million people will be ruined as a result of this legislation, although the actual tillers therefrom, of the soil will derive no benefit whatever for they will remain where they are and will have to continue, as heretofore, to pay rJ.eir rent, instead of to the ~tate which, they will their present landlords, to find, is no better than a ruthless machine unsusceptible to any humane feeling. The contention public purpose must be something definite, something tangible and something immediate and that there must be some indication of its existence in the Act itself and that the State cannot take private property to-day and the public purpose at its leisure. This leads me to a consideration of what the meaning of our Constitution. a public purpose within in number and four persons that it will there are think of We have been referred to some American authorities for ascertaining the meaning and implication of "public is of a more use", an expression which obviously the expression "public purpose" limited used in our Constitution. Apart from this, a perusal of the text books, e.g., Constitutional Law by Professor Willis, p. 817 et seq., will immediately make it clear import 1952 The State of Bihar v. Maharaia dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das f. 994 SUPREME COURT REPORTS [1952] that the notion as to what is a "public use" is rapidly changing in America. Formerly "public use'', meant a use by the public. According to the modern view "public use" means useful to the public. The . passage in Cooley's Constitutional Limitations, Vol. II pp. 1139-40 quoted by S. K. Das J. of the Patna High Court summarises the position thus :- A more flexible meaning makes "No satisfactory definition of the term "public use" has ever been achieved by the Courts. Two different. theories are presented by the judicial attempts to des- cribe the subjects to which the expression would apply. limits the application to One theory of "public use" "employment"-"occupation". liberal and synonymous with "public advantage", "public benefit". A little investi- gation will show that any definition attempted would exclude some subjects that properly should be included in, and include some subjects that must be excluded the words "public use". As from, the operation of might be expected, the more limited application of the the earlier cases, and the more principle appears rendered necessary by liberal agplication has been recent d~velopments "of complex conditions due civilization and the increasing density of population. In the very nature of the case, modern cond11tions and the increasing inter-dependence of the different human factors in the progressive complexity of a community make it necessary for the Government to touch upon and limit individual activities at more points formerly". To the like effect are the in Corpus r uris, be found pp. 552 and 553 under the use":- following observations to Vol. XX, article 39, at caption "What is a public "No general definition of what degrees of public. good will meet the constitutional requirements for a ·"public' use" can be framed, as it is in every case a question of public policy. The meaning of ~e term is fl~xible and is not confined to what may constitute a public use at ·any given time, but in general it may be said to cover • • J , ~ S.C.R. SUPREME COURT REPORTS 995 from particular that "public use" a use affecting the public generally, or any number thereof, as distinguished individuals. Some Courts have gone so far in the direction of a liberal construction as to hold "public benefit'', "public utility", ' synonymous with "public exercise of tude, of a locality may receive view of to pro- especially where considerable magni- the power advantages the fullest development in involved are sought the natural resources the power of eminent domain interests such public benefit, the general welfare". advantage", authorise etc., 1952 The State of Bihar v. Maharaia dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das/. The learned author thereupon proceeds to discuss the more restricted meaning given to that expression. Mr. P. R. Das has drawn our attention to the decision of the Judicial Committee in Hamabai ·Framjee Petit v. Secretary of State for lndia(1). It should be borne in mind that the Judicial Committee in that case had to consider the meaning of the words "public purposes" occurring the 19th century. Even 1914 Judicial Committee did to attempt a precise definition of the expression "public purpose" to quote with content following passage from the judgment of approval Batchelor J. ': - and was lease of in a think, rather "General definitions are, I to be avoided where the avoidance is possible, and I make no attempt to define precisely the extent of the phrase 'public purposes' in the . that, in my opinion, the phrase, whatever else it may mean, must include a purpose, that is, an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned". lease ; it is enough • And it is well that no hard and fast definition was laid down, the concept of "public purpose" has been rapidly changing in all countries of the world. The reference in the above quotation to "the general (1) (1915) L.R. 42 I.A. 44. 9-10 S.C.In1tia/7l 1952 The State of Bihar v. Maharaja· dhiraja Sir Kameshwar Singh of Darbhanga and-Others. Das]. 996 SUPREME COURT REPORTS [1952] interest of the community", however, clearly indicates that it is the presence of this element in an object. or aim which transforms such object or aim ino a public purpose. the · , tide of longer stem flowing the social From what I have stated so The emphasis individual far it follows that whatever furthers the general interests of the com- munity as opposed to the particular interest of the in-. dividual must be regarded as a public purpose. With the onward march of civilization our notions as to the scope of the general interest of the community are fast changing and widening with the result that our old and narrower notions as to the sanctity of the private interest of individual can no forward time and must necessarily give way to the broader notions of the general interest of the community. is unmistakably community. shifting This modern and political philosophy is well reflected and given expression to in our Constitution. Our Constitution, as I understand it, has not ignored the individual but has endeavoured to harmonise the individual interest with the paramount interest of the community. As I explained in Gopalan's (') and again in Chiranjit Lat's case (supra) our Constimtion protects the freedom of the citizen by article 19(1) (a) to ( e) and (g) but empowers the State, even while those freedoms to impose reasonable res~rictions on them in the interest of the State or of public order or morality or of the general public as mentioned in clauses (2) to (6). Further, the moment even this regulated freedom of the individual becomes incompatible wi, th and threatens the freedom of the community the State is given power by article 21, to <leprive the individual of his life and personal liberty in accordance with procedure law, subject, of to the provisions of article 22. Likewise, our Constimtion gives protection to the right of private property by article 19 ( f) not absolutely but subject to reasonable restrictions to be imposed by law m the interest of the general public established by course, last, ( 1) (1) [1950] S.C.R. 88. 1 • 1952 The State of Bihar v. Maharaia dhiraia Sir Kameshwar Singh of Darbhanga and Others. Das/. - ,, ,. S.C.R. SUPREME COURT REPORTS community law subject interest of the under clause (5) and, what is more important, as soon a:i the so requires, the State may, under article 31, deprive the owner of his to payment of property by authority of compensation if the deprivation is by way of acquisi- It is tion or requisition of the property by the State. thus quite clear that a fresh outlook which places the general interest of above the interes~ the community Indeed, of the individual pervades our Constitution. what sounded like idealistic slogans only in the recent past are now enshrined in the glorious preamble to our Constitution proclaiming the solemn resolve of the people of tills country to secure to all citizens justice, social, economic and political, and equality of status and of opportunity. What were regarded only yesterday, so to say, as fantastic formulae have now been accepted as directive principles of State policy prominently set out in Part IV of the Constitution. The ideal we have set before us in article 38 is, to evolve a State which must constantly strive to promote the welfare of the people by· securing and making as effec- tively as it may be a social order in which social, economic and political justice shall inform all the in- stitutions of the national life. Under article 39 the State is enjoined to direct its policy. towards securing, inter alia, material resources of the community are so distributed as to subserve the common good and that the opera~ tion of the economic system does not result in the con- to the centration of wealth and means of production common detriment. The words purposes" that the Constitution u.sied uses those words in a very large sense. In the never- ending race the law must keep pace with the realities of the social and political evolution of the cow1try as reflected therefore, the State is to give effect to these avowed purposes of our Con- stitution we must regard as a public purpose all will be calculated to promote the welfare of the people these directive principles of State as envisaged In else that expression may mean. policy whatever that the ownership and control of the Constitution. in article 23(2) indicate "public If, ., -, 998 SUPREME COURT REPORTS [1952] land, which the Constitution the light of this new outlook what, I ask, is the pur- pose of the State in adopting measure~ for the acquisi- tion of the zamindaries and the interests of the inter- mediaries ? Surely, it is to subserve the common good feeds and sustains the by bringing the community and also produces wealth by its forest, mineral and other r=urces, under State ownership or control. This State ownership or control over land is a necessary preliminary step towards the implementa- tion of the directive principles of State policy and it ·cannot but be a public purpose. It cannot be overlooked set forth in Part IV of that the directive principles Constitution are not merely the policy of any partic · cular political party but are intended to be principles the State fixed by for directing policy whatever party may come into power. Further, it must always be borne in mind that the object of .the impugned Act is not to authorise the stray acquisi- tion of a particular property for a limited and narrow public purpose but that its purpose is to bring the land producing wealth under State bulk of ownership or control by the abolition of the system tenure which has been found to be archaic of land and non-conducive the general interest of sets up a Land Com- community. State Government generally mission it may with regard from time to time follow. It is impossible to say that there is no public purpose to support the Act. This very Bihar Act was before the Constituent Assembly when it passed article 31 ( 4) and again when it took the trouble of amending the Constitution for saving this very Act. Would the Constituent Assembly have con- thought fit to protect these Acts unless it were vinced in -the general interest of the community '? I find myself in agree- ment with Reuben J. and S. K. Das J. that these cir- that the Constituent cumstances also clearly as well supported by· a Assembly regarded this Act .public ·purpose. ·To put a ·narrow· constniction on the expression "public purpose" will, to my mind, be to The Act also this Act was necessary policy which the agrarian to advise indicate 1952 The State· of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Das/. .I 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga · and Others. Das/. -•r S.C.R. SUPREME COURT REPORTS 999 purpose defeat the general purpose of our Constitution and the recent particular immediate imple- amendments. We must not read a measure menting Constitution through spectacles tinted with early nineteenth century notions as to the sanctity or individual I, therefore, agree with the High Court that rights. impugned Act was enacted for a public purpose. our mid-twentieth inviolability of century if any, tenures, there the rayats of Mr. P. R. Das the specious pka that percentage of then puts. up a narrow argument. Assuming, says he, that, there is· in the Act a general public purpose for compulsory acqui>9ition of zamin- cannot conceivably be any daries and public purpose in suport of the Act in so far as authorises the taking arrears of rent or the of the taking away of 4 to 12! per cent. of the gross assets landlords must be their gross supposed income on works of benefit estates and, therefore, that part of the Act is beyond legislative competence of the Bihar Legislature. this argument as unsound for more reasons I regard In the first place the existence of a public than one. purpose being, as I hold, a provision of article 31 (2), in relation its absence, (4), 31-A and reason of articles 31 rent cannot, by 31-B be made a ground of attack against the Act. is ari entirely wrong approach to pick Secondly, out an that that item is not supported by a public pur- pose. One may is no just as well say public purpose in the acquisition of forests or of mines and particularly of u::ideveloped mines, for such acqui- sition has no bearing on a scheme of agrarian reforms in that it does not improve or affect the conditions of the tillers of the surface of the soil. This, I appre- hend, is not the right way of looking at things. The the &cheme · as a whole proper approach the entire scheme of acqms1t10n Thirdly, I do not regard the deduction of 4 to 12! per cent. acquisition or confiscation than examine whether item out of a scheme .of land a public purpose. to the arrears the gross assets as reforms 1952 The State of Bihar v. Maharaja tlhiraja Sir Kameshwar Singh of Darbhan ga anti Others. Das/. 1000 SUPREME COURT REPORTS [1952] regard it, for tenants a part of a principle laid down by reasons &tated above, at all, but I the Act for the purpose of determining the amount of compen- sation as required by article 31 (2) and entry 42 in Finally, I do not see why the taking over List III. of the arrears of rent, in the context of the acquisition of zamindaries, is not for a public purpose. As I have said, the acquisition of zamindaries and tenures is a scheme for bringing about agrarian reforms and amelio- rating the conditions of the tenants. The object is, inter alia, to bring the tillers of the soil in direct con- tact with the States so as to free them from the clutches rapacious landlords and make them the masters of their holdings subject to payments of the dues to the State. It is well-known that the bulk of the tenants are in arrears with their rents and once the rents fall find it difficult to pay the into arrear the current rent after liquidating a part of the arrears so that while they clear part of the old arrears the current rent falls into arrear. According to annexure B (2) to the affidavit of Lakshman Nidhi affirmed on J anu- ary 22, 1951, the total amount of Raiyati rent payable by the various tenants in the different circles of the Darbhanga Estate alone will exceed rupees three lacs. It is not quite clear whether all these arrears are due from the actual rayats in the sense of actual tillers of the soil. But leaving out from consideration for the present purposes tenure- -tenure-holders holder or the zamindar it can safely be actual rayats bulk, or tiiJ!ers of the soil are habitually and perpetually in arrear with holdings on resulting from account of financial chronic indebtedness. circumstances if the zamindaries and the tenures only are acquired under the Act leaving the zamindars and the tenure holders the huge arrears of rent due by the actual it will eventually results in the sale of the holdings of the actual tenants or, at any rate, of their right, title and the arrears of rent due by stringency In these immediate superior if not all, of legal process tenants by cultivating to realise the rent 1952 The State of Bihar v. Maharaja dhira;a Sir Kameshwar Singh of Darbhanga and Others. Das/. S.C.R. SUPREME COURT REPORTS 1001 obviouslly tenure-holders possible purchase thereof by interest therein and the the zamindars or themselves at Court sales in execution of decrees or by private sales forced upon the tenants. The bulk of the actual tillers of soil wiH then become landless labourers and the entire scheme of land reforms envisaged in the Act will be If the acquisition of th~ rendered wholly nugatory. zamindaries and the tenures is, as I hold, dictated or inspired by the sound public purpose of ameliorating the economic and political conditions of the actual tenants, the self same public purpose may well require the acquisition of the arrears of rent so as to avert the I have men- undesirable but inevitable consequences thought tioned The Bihar Legislature that the tenants in arears will have better treatment and a more reasonable accommodation, in the matter of the liquidation of the huge arrears, from the State which will act under the guidance of the Land Com- mission than from the expropriated landlords whose sole surviving interest in their erstwhile tenants will only be to realise as much of the arrears as they can from the tenants and within without any mercy or accommodation. The same re- marks apply to the acquisition of decrees for arrears of rent. The overriding public purpose of ameliorating the conditions of the cultivating raya~ may well have induced the arrears of rent for rent differently from the other and the decrees ordinary moveable properties of the zamindars or tenure-holders, e.g., their money in the bank or their jewellery or ornaments with which rayats have no concern and to provide for the acquisition In the premises, of the arrears levelled by rejected. Mr. P. R. Das against I agree with Mr. P. R. Das these provisions for want of a public . of the impugned Act are bad purpose, I am not at all sure that I would not have further argument that the entire Act was bad, for it might second main ground of the Legislature to treat it extremely difficult the shortest possible the Act must be and the decrees. free to confess am, however, that if I resist his attack 1952 T lze State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh . of Darbhanga and Others. Das J. 1002 SUPREME COURT REPORTS [1952] not have been very easy to presume that if the Bihar that these provisions of the Legislature had known Act might be held bad it would nevertheless have passed the other parts of the Act in that truncated form. The acquisition of the arrears of rent appears to me to be an integral part of the scheme and inextri- Indeed, it may well have cably interwoven with it. been that reform was not considered by the Bihar Legislature to be at all capa- ble of easy the State without the acquisition of the arrears of rent. As, however, I have taken the view that no par:t of the Act is bad for want of a public purpose, I need not pursue any further the question of the severability of the Act or to refer to learned counsel on relied on by the judicial decisions both sides. the scheme of agrarian implementation by and the requirements Re Ground C: Mr. P. R. Das's third point is that the Act constitutes a fraud on the Constitution, that is to say, while it purports to be in conformity with the Constitution, it, in effect, constitutes a defiance of it. The Act, according to him, pretends to comply in that it sets with the constitutional out to lay down certain principles on which compen- form and the sation is to be determined manner in which such compensation is to be given but, in effect, makes out a scheme for non-payment of compensation. The Act, he urges, purports to pay back fifty per cent. of the arrears of rent as compensa- tion but in reality confiscates the other fifty per cent. without any compensation. Further, under the guise of deducting· 4 to 12f per cent. of the gross income the State is in reality appropriating a large sum under tllli head. All this, he concludes, is nothing but pre- tence or a mere shift and contrivance for confiscating argument, when properly private property. understood, will be found resolve itself into an attack on competency of the Bihar legislative Legislature to pass this Act. On ultimate analysis it that while amounts pretending the Act does not really give it. It is the absence of a provision to nothing more compensation than saying The 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga , and Others. Das f. S.C.R. SUPREME COURT REPORTS 1003 compensation according that mak~ adequate to Mr. P. R. the Act bad, because, power under entry 36 in List the legislative Das, II and entry 42 in List III requires the making of such a prov1S1on. The failure to comply with this consti- tutional condition for the exercise of legislative power may be overt or it may be covert. When h is overt, the law is obviously bad for non-compliance we say with the requirements of the Constitution, that is to say, the law is ultra vires. When, however, the non- compliance is covert, we say that it is a fraud on the Constitution, the fraud complained of being that the Legislature pretends to act within its power while in fact it is not so doing. Therefore, the charge of fraud on the Constitution is, on ultimate analysis, nothing epigrammatic way of expres- but a picturesque sing the idea of non-compliance with the terms of the ·Constitution. Take the case of the acquisition of the ar- rears of rent. It is said that the provision in the Act for the acquisition of arrears of rent is a fraud on the legis- lative power given by the Constitution. I ask myself as to why must it be characterised as a fraud ? I find nothing in the Constitution which says that the arrears of rent must not be acquired and, therefore, there is no neces- sity for any covert attempt to do what is not prohibit- ed. that in a scheme of land <eforms such as is envisaged in the Act the acquisition of the arrears of rent may properly accompany the acquisition of the zamindaries and the tenures. Where, then, does this theory of fraud come in? The answer must eventually be that a moiety of arrears are taken away without compensation. Again, take the case of properties. Why, I ask, is it called a fraud on the Constitution to take such property ? Does the Constitution prohibit the acquisition of such property ? Obviously it does the fraud ? The answer that not. Where, then, comes to imy mind is that it is fraud because the Act the baSiis of income provides for compensation only on at present and, non-income-yielding therefore, properties which I have already explained non-income-yielding but whii;h acquisition 1952 The State of Bihar v. Maharaia dhiraia Sir Kameshwar Singh of Darbhanga and Others. Das 1- 1004 SUPREME COURT REPORTS [19521 in Lisit: III but attractive provision attacked on required by to do what compensation for the ground that the Rayats". On ultimate any compensation potentialities are acquired without at all. Similar answer becomes obvious in connec- the deduction of 4 to 12~ per cent. of tion with the head "Works of Benefit the gross assets under therefore, analysis, the Act is really the Constitution to do, namely, to . provide for is, therefore, ultra acquisition of the properties and vires. This, to my mind, is the same argument as to the absence of just compensation in a different form and expressed in a picturesque and langu- the question of I have already dealt with age. absence of a for just compensation while dealing with Mr. P. R. Das's first point and I repeat that the obligation to provide for compensation is not itself or read with implicit in entry 36 List II by entry 42 is to be found only in article 31 (2), that under entry 42 in List III the Act has laid down a principle for determining compensa- there can be no question as to tion and, therefore, any alleged non-compli- legislative im- ance with any supposed If the principles so laid down plicit . in these entries. in the Act do not in any rare case produce any com- adequate compensation pensation or do not produce in some cases, such absence of compensation may be a contravention of article 31 (2) but in view of articles 31 (4), 31-A and 31-B and particularly due to the words "notwithstanding anything in this Constitu- tion" occurring in article 31 ( 4) it cannot be made a ground of attack on the Act, even though such ground is formulated in a different but attractive language, namely, as a fraud on the Constitution. Accordingly, this point must also be I, however, repeat that if I took a different view I would still have the same difficulty as to the inseverability of the different provisions hereinbefore indicated. requirement said to be incompetency for the Act rejected. I Re. Ground D : Mr. P. R. Das's fourth point is that the Act is unenforceable in that section 32 (2) 1952 The State of Bihar v . Maharaja dhiraja Sir Kameshwar Singh of Darbhangtr and Others. Das J. .. t I - _, • S.C.R. SUPREME COURT REPORTS 1005 in forty equal instalments provides for compensation without specifying the period of interval between the In course of arguments, however, Mr. P. instalments. R. Das has thought preSlil this point and accordingly it does not require any refutation. fit not to public purpose the Constitution has the Act has delegated compensation Re. Ground E : Mr. P. R. Das's last main point is legislative essential the Effective Government functions is, therefore, invalid. Article 31 (2) requires law authorising the taking poss, ession or the acquisi- tion of should provide the property taken possession of or acquired and should either fix the amount or specify the principles on which, and the manner in which the compensation is to be determined and given. Entry 42 in List III talks of principles on which com- the form and the pensation is to be determined and manner in which such compensation to be given. The argument Parliament or the State Legislature the duty of specify- ing the principle on which, and the form and manner in which the compensation is to be determined and given but the Bihar Legislature by section 3 (22) of the Act has simply provided that the amount of com- i:n cash or in bonds or partly pensation shall be paid in cash and partly in bonds and that the bonds shall be either negotiable or non-negotiable and non-trans- ferable and be payable in forty equal instalments and has 'not laid down any decisive provision but has left the matter to the State Government to decide. It has, therefore, to discharge the duty which was expressly left to its knowledge, wisdom and patriotism. Mr. P. R. Das that the Legislature has shirked this essential the State Government to be legislative power exercised under rules made by itself under its rule- making power under section 43 (2) (p). The question of the propriety and legality of the delegation of legis- lative power has recently been considered by If I Court in In re The Delhi Laws Act, 1912 etc.(1). its responsibility and delegated complains failed (1) [1951] S.C.R. 747. 1952 The State of Bihar v. Maharaja· dhiraja Sir Kameshwar Singh .of Darbhanga and Others. Das/. 1006 SUPREME COURT REPORTS [1952] Justice and my sense I have were to deal with this matter according to my own this argument in notions, I would have dismissed limine, for here the Legii>lature has not abdicated or effaced itself in explained in my opinion in that case. When I look at the matter on the basis of the principles laid down in that case by the late Chief learned brothers to which Mr. P. R. Das has referred, I have to overrule same. Here section 32 clearly his contention all the indicates that the Legislature has applied its mind to the problem and it has laid down the principle that the compensation may be paid in cash or in bonds or and that if a pardy in cash and partly in bonds to be made payment is either wholly or partly in these bonds may be either negotiable or bonds, non-negotiable the Legislature has, by a rule made under section 43 (3) (p), left it to the Execu- compensation the manner of such payment of com- pensation. it will be observed, depend These details, on special circumstances, e.g., the extent of the ability of Government to pay, the extent of the necessities of the proprietors and many other considerations, with the Executive Government would be more familiar than the Legislature itself. I am unable to accept Mr. P. R. Das's contention that this amounts to a delegation of an essential function within the meaning· of the decision of my learned brothers. the proportion shall be payable non-transferable. the principle, to determine in which cash and legislative Having 1894 being extended by . Mr. Sanjiva Chowdhuri has urged that the Land Acquisition Act, continued by the Con- stitution and that Act which is a Central Act having 1899 to Ramgarh notilication in State for which he appears, the Central Act must apply to Ramgarh until the notification is withdrawn and the impugned Act cannot apply for determining the compensation, for the field is already occupied by the Central Act of 1894. It may, however, be noticed compensation the provision that Act • . S.C.R. SUPREME COURT REPORTS 1007 It has applies only to lands acquired under that Act. no application to lands acquired under other statutes and, therefore, the provision for compensation of the Land Acquisition Act . apply to acquisitions therefore, the doctrine of under the Bihar Act and, In my opi- occupied field can have no application. nion there is no substance in this contention. cannot For reasons stated above, I allow these appeals. CHANDRASEKHARA ArYAR J.-The faits which have given rise to these cases have been fully set out in the judgment just now delivered by my learned brother Mahajan J. and need not be repeated. The conclu- sions reached by him and Mukherjea J. have my concurrence. Ordinarily, I would have stopped with the expression of my agreement, but having regard to the importance of the guestion argued and the stakes i,nvolved, I desire to add a few words of my own on some of the points discussed. 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Chandrasek_hara Aiyar f. Article 31 (I) of our Constitution provides "No per- save by autho- deprived of his property son shall be rity of law". There are three modes of deprivation-(a) destruc- tion, (b) acquisition and ( c) requisition. Destruction may take place in the interests of public health or the prevention of danger to life or property, but with this we are not now concerned. In the case of "acquisition", there is an element of permanency, and in the case of temporariness. "requisition" Except for this distinction, both modes stand on the the State vis-a-vis the rights of the private citizens. is an element of footing, as rights of regards Under the Constitution, when property is requisition- ed or acquired, it may be for a Union purpose or a State purpose, or any · other public purpose. Entry 33 in List I (Union List) of the Seventh Schedule to the Constitution speaks of acquisition or requisition- ing of property for the purposes of the Union. When we come to entry 42 of List III (Concurrent List), we find these words : "Principles on which compensation for property acquired or requisitioned for the purposes .. 1952 The State of Bihar v. Maharaia dhiraja Sir Kameshwar Singh cf Darbhanga and Others. Chandrasekhara Aiyar f. 1008 SUPREME COURT REPORTS [1952] of the Union or of a State or for any other public pur- pose is to be determined, and the form and the manner in which such compensation is to be given." From very early times, law has recognized the right of Government compulsorily to acquire private pro- perties of individuals for a public purpose and this has come to be known as the law of eminent domain. But it is a principle of universal law that the acquisi- tion can only be on payment of just compensation. Story on the Constitution, Vol. 2, page 534, paragraph .1790, has the following passage in discussing the con- cluding clause of the Fifth Amendment of the American Constitution : the common It is Indeed, almost in a free government, rights would become utterly worthless, . "The concluding clause that private property taken for public use witltout just compen- shall not be affirmance . of a great doctrine esta- sation. This is an law for the protection of blished by private property. in natural equity, founded and is laid down by jurists as a principle of universal law. the Government possessed an uncontrollable power fortune of every citizen. One of the fundamental objects of every good government must be the due administration of justice ; and how vain it would be to speak of such an administration, when all property is subject to the will or caprice of the legislature and the rulers." the private The payment of compensation is an essential ele- ment of the valid exercise of the power to take. In the leading case of Attorney-General v. De Keyser' s Royal Hotel, Ltd. (') Lord Dunedin spoke of the payment of compensation as a necessary concomitant to the tak- ing of property. Bowen L. J. said in London and North We~tern Ry. Co. v. Evans (') :- "The Legislature cannot fairly be supposed to in- tend, in the absence of clear words showing such intention, that one man's property shall be confiscated for the benefit of others, or of the public, without any (1) [1920] A.C. p. 508. (2) [1893] 1 Ch. pp. 16 & 28. ' S.C.R. SUPREME COURT REPORTS 1009 in respect of compensation being provided for him taken compulsorily from him. Parliament in its omnipotence can, of course, override or disregard this ordinary principle ...... if it sees fit to do so, but it found disregarding it, that it will be is not likely without plain expres1sions of such a purpose." This principle is embodied in article 31 (2) of our Constitution in these terms :- immovaJ:le, i:iovable or "~o prop_erty, including any mterest m, or m any company ownmg, any com- mercial or industrial undertaking, shall be taken pos- session of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless law provides for compensation for the property taken possession of or acquired and either the compensation, or specifies the principles on which, and the manner in which, to be determined and JS given." the compensation the amount 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Chandrasekhara Aiyar /. We shall not here trouble ourselves with sub-clauses (3) and (4) of the article and with articles 31-A and 31-B which were introduced by way of amendment under the Constitution First Amendment Act, 1951, dated 18-6-1951. They will be considered later. The argument of Shri P. R. Das that the payment of compensation is a concomitant obligation to the compulsory acquisition of properties by the State can be accepted as sound ; but when he went further and urged that it was found in an implicit form in entry 42 of the Concurrent List, he was by no means on sure ground. The entries give us the bare heads of legisla- For ascertairU,ng the scope or extent or ambit of tion. the rights and the duties created the legislation and thereby, we must . examine itsdf or must have to general and well-recognized jurisprudence. No resort can be principles of law of had to anything implicit or hidden when the statute makes an express provision on the same subject. As just compensation has to be paid when property is legislation has to acquired for a public purpose, the legislation resort ' .. 1952 The State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Chandrasekhara Aiyar /. 1010 SUPREME COURT REPORTS [1952] The power is conferred but Entry 42 means nothing more determining the compen- formulate the principles for sation and the form and the manner in which it is ·to be given. than a power conferred on the Legislature for achieving this there is no duty end. cast to provide for compensation. For any statement that the payment of compensation is a primary condi- tion for acquisition of property for a public purpose, we have to look at the provisions of the Constitution stated itself and take up the unten- already. Mr. Das was obliged to able position that entry 42 of implies to pay compensation, as he could not an obligation otberwi:;e jump over the hurdles created in his way by · sub-sections articles 31-A and 31-B. (4) of article 31 and the new this we find in its own force article 31(2) (3) and to me and he compensation that would lead legislature further The learned Attorney-General contended in dealing with entry 42 that legislation under entry 42 can also to the non-pay-.• lay down principles cited Atiqa ment of Begum's case(') as an authority in his support. This to be as unsound as contention appears Mr. Das's argument that the obligation to pay or give compensation was implicit in the. said entry. As there can be no acquisition without compensation, th'e terms of entry 42 enable the to lay down the principles and provide the form and . If the principles are so formu~ manner of payment. result lated as the legislature would be evading the law not only covert- ly but flagrantly. There is nothing in Atiqa Begum's case that supports It was there hefd' the argument. that under the head "payment of rent" there could be legislation· providing for Payment of rent is not a legal obligation of every tenure and the circumstances legislature can enact that under certain .or conditions there shall be remission of rent. But as· .regards acqu1S1t:lon, its pay- . ment is a primary requisite universally recognized by the essential distinction to remember law~ · This is in non-payment altogether, remission of rent. compensation foi State (!) [1940] F.C.R. 110. · ~ .. )"": S.C.R. SUPREME COURT REPORTS 1011 when we seek to apply the case quoted. The last words in entry 42 "form and the manner in which such to be given" clearly mean that the compensation is principles determining compensation must lead to the giving or payment of some <:01npensation. To negate compensation altogether by the enunciation of principles. result would be leading to such a to contradict the very terms of the entry and such a meaning could not be attributed to the framers of the Lists. 1952 The State of Bihat v. Mahara;a dhiraja Sir Kameshwaf' Singh of Darbhang11 · am! Othe:ts. This, however, does not carry Shri P. R. Das any- where near success. Article 31 ( 4) is the first stumbling block in· his way. It provides :- Chandrasekhar• Aiyar /. • "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, beert reserved for the President and has received the consideration of his assent, Constitution, the law so assented to shall not be called in question in any court on the ground that it contra- venes the provisions of clause (2)." then, notwithstanding anything m The Bill which subsequently became "The Bihar Land Reforms Act, 1950" was pending at the com- mencement of the Constitution in the legislature of the State, and after it was passed by the legislature, it was reserved for the consideration of the President and received his assent. Therefore the bar that it shall not be called in question in any court on the ground that it contravenes the provisions of clause (2) becomes applicable. True, to be provided for, by reason of sub-clause (2) of the article, but sub-clause ( 4) postulates an exception and right to challenge the validity of the Act on the ground that no compensation has been provided for or that the compensation is really illusory or inadequate ts taken away. As if this were not enough, two more stiles have been erected in his way and they are the new articles 31-A and 31-B brought in by way of amendment. Article 31-A, sub-clause (1) is in these terms;:- compensation has , "Notwithstanding provisions of this Part, no 10~!0 S.C. India/7! anything m foregoing law providing for the 1952 The State of Bihar 1 v. Maharaia Jhiraja Sir Kameshwar Singh of Darbhanga •nd Others. · Cband; asek._hara Aiyar /. 1012 SUPREME COURT REPORTS [1952] 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 Parr: Provided that where such law is a law made by the Legislature of a. State, the provisions of this arricle shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. Article 31-B provides :- "Validation of certain Acts and Regulations :-With- out prejudice to the generality of the provisions con- tained in article 31-A none of the Acts and Regulations specified in the Ninth Schedule nor any of the provi- sions thereof shall be deemed to be void, or even to have become void, on that such Act, Regulation or provision is inconsistent with, or takes the rights conferred by, any away or abridges any of provisions . of . this Part, notwithstanding any judgment; decree or order of any court or tribunal to the contrary each of the said Acts and Regulations shall, subject to the power of any competent Legisla- ture to repeal or amend it, continue in force." the ground When we look at the Ninth Schedule to the Amend- is. "The Bihar ing Act, the very first item mentioned Land Reforms Act, 1950.'' In the face of these alm~t insuperable obstacles, Shri P. · R". Das candidly admitted that he could urge nothing as regards the adequacy or the illusory nature -0£ the . compensation provided in the Act, if he was not able to convince the Court on his main point that he could challenge the offending Act on grounds other than those mentioned in Part III of the Constitution, and that there was something in entries No. 36 of the State List and No. 42 of the Concurrent List read together which · imposed on the State Legislature an obligation to provide for the payment of just or pro- per compensation and that the non-observance of this l .• • ' • S.C.R. SUPREME COURT REPORTS 1013 obligation entitles him to challenge the validity of the Act as unconstitutional. The acquisition of property can only be for a public purpose. Under the Land Acquisition Act, I of 1894, a declaration by · the Government that land is needed for a public purpose shall be conclusive evidence that the land· is so needed and Courts cannot go into the question whether the public purpose has been made out or not. There is no such provision in any article of the Constitution with which we have to deal. It is true that sub-clause (2) of article 31 speaks of pro- perty being acquired for public purposes. The bar created by sub-clause ( 4) of article 31 relates to the contravention of the provisions of clause (2). The provision of clause is only as regards compen- (2) sation as can be gathered from its latter part :- 1952 The State.of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. C handrasek hara Aiyar /. "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." It is assumed, rightly, that the existence of a public purpose is · part and parcel of · the law and is inherent in it. The existence of a public purpose is not a pro- article 31 (2) as a imposed by VlSlOn or condition limitation on the exercise of the power of acquisition. The condition prescribed is only as regards compen~ sation. Article 31 ( 4) debars the challenge of the con- stitution.ality of an Act on this ground but no other. Whether there is any public purpose at all, or whe- ther the purpose stated is such a purpose is open, in my opinion, to judicial scrutiny or review. When the legislattire declares that there is a public purpose behind the legislation, we have of course to respect its words. · The object of the Act in question intermediaries like interests of is to extinguish zamindars, proprietors, and estate and tenure-holders etc., and to bring the actual cultivators into direct relations with the State Government. To achieve this end, several provisions have been enacted 1952 Tiu State of Bihar v. Maharaja~ dhiraja Sir Kameshwar Singh of Darbhan ga and Others. Chandrasekhara Aiy"1' /. 1014 SUPREME COURT REPORTS [1952} transfer and the vesting of such interest m the State It is impos.•iblc as regards various items of ptoperties. to deny that the Act is inspired and dominated by a public purpose, but the question still remains whether the taking over of particular items can be said to be for a public purpose. It is in thi~ connection that the two items of "arrears of rent" and "cost of works of benefit to the raiyats" dealt with in section 4, clause (b), and section 23, clause ( f), respectively of the Act, have to be considered. some relation zamindars, proprietors or The taking over of "arrears of rent" does not seem to have even a remote connection with any question of It stands on no better footing than if land reform. the Act sought to take over the cash on hand or in the banks of the tenure- It is only an accident that the rents in ques- holders. tion were not realised before the passing of the Act. Whether realised or not, they are his moneys due and ryots. The consequences of payable to him by vesting of estates must have tenures themselves and have some connection, remote though it may be, with the agrarian reforms under- taken or contemplated. Supposing that we have a legislation stating that as it is necessary to eliminate revenue and to appor- rent collectors and tion and distribute land on an equitable basis amongst the . tillers of the land and confer on them rights of permanent occupancy and also to bring them directly into contact with the State, all moneys which the pro- prietors had collected as and by way of rent from their estates for three years prior to the commence- ment of the Act, shall vest in and be payable to the State, could it be said by any public purpose had been established for the taking of the moneys ? Arrears of rent stand on no better them over is footing. Any public purpose its absence. conspicuous by resort was· had to for augmenting the financial resources of the State or for paying com- pensation to the smaller proprietors out of this parti- individuals in taking It is fairly obvious any stretch of reason item of acquisition. the arrears either Property of farmers of • S.C.R. SUPREME COURT REPORTS 1015' cannot be appropriate<l by the State un<ler the power of eminent domain for the mere purpose of adding to its revenues·; taxation is the recognised mode to secure this end. If the latter was the real object, it must be · ,. · observed that to take one man's property compulsorily for giving it away to another in discharge of Govern- ment's obligations is not a legitimate and permissible exercise of the power of acquisition. 1952 The State of Bihar v. Maharajit- dhiraja Sir Kameshwar Singh of Darbhanga and Others. Chandrasekhara Aiyar /. (a) either arrear~ of the public purpose Sub-clause (1) of section 24 no doubt provides that 50 per cent. of the arrears of rents shall be added to the amount of compensation. This means one of two things the other 50"/o taken without confiscation payment of any compensation, which the con- taken as virtually or (b) 50 per cent. rent-lump sum solidated value of in action or the acquisition of choses payment for actionable claims. Taken either way, it is difficult to consists. Whether see wherein moneys could compulsorily acquired at all by a State is a moot question. Willis say!l in his Constitu- tional Law at page 816:-"While, as stated above, any and all property is in general subject to the exer- cise of the power of eminent domain, there are certain forms of private property which can- rather unusual These are corpses, money, choses not thus be taken. in its the government in action, property used by governmental capacity, property to be used for a mere substituted ownership unless such substituted owner- ship i.s a more necessary use, and perhaps trust pro- perty dedicated liens, and suits to a State, mortgage to quiet title." Under the heading "what property is subject to the right'', Cooley observes in Vol. II of his book on Constitutional Limitations, at page 1117:- "From however, must be excepted that which in ordinary use passes as such, money, or and which reach by taxation, the Government may and also rights in action, which can only be available when made to produce money; neither of which can to take under this power." In the foot- it be needful note he points out:- statement, .. 1952 The State of Bihar ;i· Mahtwaia· Jhiraja Sir Kameshwar . Singh of Darbhanga and Others. Chandrase/(.hara Aiyflr /. 1016 SUPREME COURT REPORTS [1952] the right "Taking money eminent domain, when it must be compensated in money after- wards, could be nothing more or less than a forced loan, only to be justified as a last resort in a time of extreme peril, where neither the credit of the govern- ment nor could be made available." power of taxation Nicols in his work on "Eminent Domain" does not disagree with this view ; on the other hand, he says at page 100 of Vol. I, paragraph 2. 1 (3) :- it has far as implied inherent limitation upon concerned, The objection "The question has taken by eminent arisen whether money can domain held or intimated, at a state or a private corporation · is is not not subject such taking. based on an difficulty of power of government, but that would· be of any taking of money effecting a service · to the Con- the public without violating stitution. The use for which it was needed might well be public, but, as compensation must be paid in money, and, if not in advance, at least with such ex- pedition as conveniently may be had, the seizure of money without compensation, or with. an offer of pay- ment in notes, bonds or merchandise,-in other words, a forced· sale or loan- however it might be justified by dire necessity would not be a constitutional exercise of the power of eminent domain." · The 'learned Attorney-General sought to justify this the ground that it was a compulsory acquisition on taking of choses in action. Even so, they stand on the same footing as money, of less value no doubt than if they were coin or currency notes. It seems that choses in action too cannot be so acquired ; reference has been made already to Cooley's observations. The two cases Long Island Water Supply Company v. City of Brooklyn(') and City of Cincinnati v. Louisville & Nashville Railroad Company (') do not former case, support In the contrary view. (1) 166 U.S. 685; 41 L. Ed. pp. 1, 165. (2) 223 U.S. 389; 56 L. Ed. 481. l • 1952 The State of Bihar v. Maharaja Jhiraia Sir Kameshwar Singh of Darbhangtfl a1id Others. Chandrasekhar• Aiyar J. S.C.R. SUPREME COURT REPORTS 1017 to condemn In 1892, the company, provided the City of Brooklyn furnished and supplied as provided under a contract a Water Supply Company was to supply water to town of New Lots (which subsequently became merged in the city of Brooklyn) in consideration of town paying for hydrants to be in the contract. The contract was for a term of 25 years. took place, When the merger the city of Brooklyn was given power to purchase or to condemn the property of the company within 2 years but it did neither. legislature passed another Act authorising property of the the necessary proceedings were commenced within one year after the passing of the Act. The procedure for the acqui- sition was prescribed in the Act itself. The power was exercised by the city and the compensation pay- able was determined by the Commissioners at a parti- cular figure. The company objected to the acquisi- tion on the strength of article l, Paragraph 10, of the U. S. Constitution which the obligation of contracts pass a and was not "due process of law" as required by the Supreme the 14th Amendment. Court confirmed rejected impairment of there was the argument the contract. Mr. Justice Brewer points out that the contract is a mere incident to the tangible property and that it is the later which, being fitted for public The contract is not the thing uses, which is sought to be condemned and its impairment, if impairment there be, is a mere consequence of the In the present appropriation of the tangible property. that the taking over of cases, it is untenable arrears of rent is a natural consequence of the acquisi~ tion of the estates. On error, condemnation condemned. any State impairing to state forbids In the latter case, a railroad company filed a suit to condenin a right of way for an elevated railroad track across the public The city objected on the ground that the public landing had become property dedicated to the public under an earlier contract and to allow the condemnation under a landing at Cincinnati. - 1952 The State of Bihar v. Maharaja Jhiraja Sir Kameshwar Singh of Darhhan ga and Others. Cli•ndrasekhara Aiyar /. 1018 SUPREME COURT REPORTS [1952] the United States. statute of Ohio was an impairment of the contract, forbidden by the 10th section of the first article of the Constitution of The court through Mr. Justice Lurton held : ''The constitutional inhibition upon any state law impairing the obligation of contracts is not a limitation upon the power of eminent domain. The obligation of a contract is not impaired when it is appropriated to a public use and compensation made therefor. Such an exertion of power neither challenges impairs its obligation. Both are recog- it.• validity nor it is appropriated as an existing enforceable nised, for impairment of its obli- taking, not an It is a contract. If compensation be made, no gation. constitutional right is violated." l to any It would thus be evident that they were not cases of the compulsory acquisition of choses in action. Choses in action unrelated tangible property can be useful for a public purpose only when converted into money. Arrears of money are particularly so. When it is said that money and choses in action are exempt · from compulsory acquisition, it the ground that they are movable property but on the ground that generally speaking there could be no public pur- their acquisition. is not on The provisions in section 23, sub-clause (£) that 4 to 12! per cent. of the gross assets can be deducted from the amount as representing "cost of works of benefit to th~ raiyats". This is, an obvious device to reduce the gross assets and bring it down to as low a level as possible. The Act does not say that this charge re- presents the expenditure on works of benefit or zamindars and proprietors improvements which were under any legal obligation to carry out and which they failed to discharge. Nor are we told anything 1 figure which this. deducted sum. It about the future destination of the legislature has said is an arbitrary must be deducted from the gross assets. The deduc- tion i• a mere contrivance to reduce the compensation and it is a colourable or fraudulent exercise of legisla- tive power calculation of gross assets. to subtract a fanciful <11 "" S.C.R. SUPREME COURT REPORTS 1019 Stripped of their veils or vestments, the r~ov1S1ons in the Act about "arrears of rent" and the "cost of works of benefit" amount to naked confiscation. Where the legislative action is arbitrary in the sense that has no reasonable relation to the purpose in view, there is a transgression by the legislature of the limits of its acquisition, power. Under the guise of legislating for 'Ocrpetrate the State l confiscation ; and if it does so, the Act to that extent · part that is void texture of the rest, the whole Act has .down. Such, however, is not the case here. to be declared unconstitutional and void. If the is so inextricably interwoven into the to be struck legislature cannot enable 1952 Tlie State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga and Others. Chandrasekhara A1yar /. It is gratifying to note the Madhya Pradesh AboJition o{ Proprietory Rights Act of 1950 and Uttar Pradesh Zamindari Abolition and Land Reforms Act of 1950 which are also in question are free from this blemish of reaching at arrears of rent due for any period anterior to the date of vesting. Appeals allowed: Petition No. 612 dismissed . Agent Agent for the appellant (State of Bihar) : P.A. Mehta. for the respondents in Cases Nos. 339, 319, 327, 330, 332 of 1951 : /. N. Shroff. in Cases Nos. 3o9, 326, 328, 336, 337, 344 of 1951 : Ganpat Rai. in Cases Nos. 310, 311, and 329 of 1951 : R. C. Pra&td. in Case No. 315 of 1951 : P. K. Chatter jee. in Cases Nos. 307, 313, 320, 321, and 322 of 1951 : Sukumar Chose. in Case No. 331 of 1951 : S. P. Varma. " " " " " " " " ,, Agent for the petitioner in Petition No. 612 of 1951 : Ganpat Rai . Agent for respondent No. 2 in Petition No. 612 of 1951: P.A. Mehta. t· .1 • • • . -,.