THE STATE OF WEST BENGAL v. SuOodft Goj)al

Butchers Union etc. Co. v. Crescent City etc. Co., (111 U.S. 746), Punjab Province v. Dau/at Singh and Others ([1946] F.C.R. I), Chiranjit Lal Chaudhuri v. The Union of India and Others ([1950] s:C.R. 869), A. K. Gopalan v. The State of Madras ([1950] S.C.R. 88), P. D. Shamdasani v. Central Bank of India ([1952] S.C.R. 391), Ministry of State for the Army v. Dalziel (68 C.L.R. 261), Pennsy/. vania Coal Co. v. Mahon (260 U.S. 322), Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Mills Ltd. ([1954] S.C.R. 674), State of Madras v. V. G. Row ([1952] S.C.R. 597), Ram Singh (1_1951] S.C.R. 451), ·State- of Bihar v. v. The State of Madras Maharajadhiraja Kameshwar Singh of Darbhanga ([1952] S.C.R. 889), Noble State Bank v. Haskell (219 U.S. 104), Eubank v. Richmond (226 U.S. 137), Joseph Hurtado v. People of California (1883) (IO U.S. 516), referred to; CIVIL. APPELLATE JuRISDICTION : Civil Appeal No. 107 of 1952. Appeal from the Judgment and Order dated 22nd the High Court of Judicature at in Reference March, 1951, of (Harries C.J. and Banerjee J.) Calcutta No. 4 of 1950 in Civil Rule No. 1643 of 1950. M. C. Setalvad, Attorney-General for India (B. Sen, with him) for the appellant. Atul Chandra Gupta (Jay Copa/ Chose, with him) for respondent No. 1.

#1953. December

#17. The following Judgments were delivered. PATANJALI SASTRI C. J.-This appeal .of great public and private extent of protection which accords to ownerships of private property. raises issues importance regarding the the Constitution of India The first respondent herein (hereinafter referred to as the respondent) purchased the entire Touzi No. 341 ·of the 24-Parganas Collectorate at a revenue sale held on· January 9, 1942. · As such purchaser, the respondent acquired under section 37 of the Bengal Revenue Sales Act, · 1859 (Central Act No. 11 of 1859) the right "to avoid and· annul all under-tenures and forthwith to eject all under-tenants" with certain exceptions In exercise of that right which are not material here. ~he respondent gave notices of ejectment and brought -a suit including ·the se.cond respondent herein, ·and to recover·. possession in 1946 ·to evict certain under-tenants, • • 1953 ThtSlate of Wt.ti Bengal v. Subodh Gopal BoJ t and Othtrs. Pata11jali Sastri C.J. 594 SUPREME COURT REPORTS [1954] lands. The suit was second to the respondent who preferred an appeal District Judge, 24-Parganas, contending that his under tenure came within one of the exceptions referred t<> in section 37. decreed against the urban phenomenal the necessary to the Bill, to a large section of When the appeal was pending, the Bill, which was later passed as the West Bengal Revenue Sales (West Bengal Amendment) Act, 1950, (hereinafter referred t<> as "the amending Act") was intmduced in the West Bengal Legislative Assembly on March 23, 1950. It "statement of objects would appear, according to the and reasons" annexed that great hardship was being caused the people by the Bengal Land the application of section 37 of Revenue Sales Act,· 1859, areas and in Calcutta and. its suburbs where "the particularly present land values has supplied to speculative purcha in exploiting this provision (section 37) of the law for unwarranted it was, therefore, considered necessary the scope of protection already given by to certain categories of security of Government revenue. The Bill was eventu ally passed as int<> the amending Act and force on March 15, 1950. It substituted by section 4 the original sec in the place of the new . section 37 tion 37, and it provided by section 7 that all pending suits, appeals and other proceedings which had not already sha!I abate. large-scale eviction" and to enlarge the section tenants with due increase incentive resulted m delivery of safeguards possession it came Thereupon, the respondent, contending that section 7 rights under fundamental was void as abriging his (f) and article 31, moved the High Court article 19(1) under article 228 to withdraw the pending appeal and determine the constitutional issue raised by him. The appeal was accordingly withdrawn and case was heard by Trevor Harries C. J. and Banerjee J. who, judgments, declared concurring returned section 7 unconstitutional and void and in conformity the District Court for disposal separate • • • • S.C.R. SUPREME COURT REPORTS 595 with their decision. The learned Judges held that the to annul under-tenures and evict respondent's right under-tenants being a vested right acquired by him under his purchase before section 37 was amended, retrospective deprivation of that right by section 7 of the amending Act without any abatement of respondent at the revenue sale was price paid by right under article an infringement of his fundamental 19(1) (f) to hold property with all the rights acquired under his purchase, and as su~h deprivation was not a respondent's exercise of reasonable (S) his vested right, section 7 was not saved by clause of that article and was void. restriction on 1953 The State of WeJtBengal v. Subodh Gopal Bose and Others~. Pata, Yali Sastri;, C.J. in both On behalf the appellant State the provisions, and in occupation other In support of relied on learned Attorney-General contended before us if, as the respondent claims, his right to annul under-tenures evict under-tenants those protected under the original enactment, was "property" within the meaning of clause (1) of article it was also "property" within the meaning of 19, then, clause (1) of article 31, as the expression must have the same connotation "deprived" of it under the respondent, having been authority of law, namely, section 7 of the amending lawful and could not be Act, such deprivation was challenged. learned contention the observations of my counsel learned brother Das in Chiranjit Lal Choudhury's case(1 ) and also on majority it was that if the correct view was that the nullification of the respondent's right was only the imposition of a "restriction" on property purchased by him, as has been held by the learned Judges below, restriction interests of the general public under imposed clause (5) of article 19, having regard to the facts and circumstances which measure in the Statement of Objects and (l) (1950] S. C.R. 869. (2) (1950] S. C.R. 88. in Gopalan's case('). Alternatively, it was a reasonable the enactment of the, analogy of the enjoyment reasoning of disclosed strongly in the then, • ThtState qf West Bengal T953 .. Subodh Gopal .Boso! and Others. .Pal'llljali Smtri C.J. 5% SUPREME COURT REPORTS [ 19541 Reasons annexed admissible. to the Bill which, for this purpose, 1s rights inherent the natural the caption "right It will be convenient the Attorney-General. Sub-clause to deal first with the latter (f) of contention of clause ( 1) of article 19 has, in my opinion, no application to ·the case. That article enumerates certain freedoms to freedom" and deals with those great and basic rights which are recognised and guaranteed status of a citizen of a free country. The freedoms declared in sub-clauses (a) to (e) and (g) are clearly of in such context sub-clause (f) that description and think, also be understood as declaring the should, I freedom ·appertaining the citizen of free India in the matter of acquisition, · possession and disposal of private the citizen's property. right to own property and has no reference to the right to the property owned by him, which is dealt with in article 31. Referring immuni ties" mentioned in article 4 and Amendment 14 of the American Federal Constitution, Bradley J. said m Butcher's Union etc. Co. v. Crescent City etc. Co.(') : to the "privileges and In other words, it declares It the right right to pursue "The phrase has a broader meaning. fundamental privileges and includes immunities which the citizens of every free govern belong essentially ment, among which Washington J. enumerates and obtain right of protection ; to pass through and happiness and safety ; in any State ·for the purposes of trade, agricul reside to claim the ture, professional pursuits or otherwise ; the writ of habeas corpus ; to institute and benefit of in the courts of the State maintain actions of any kind to take, hold and dispose of property either real or (C.C.) 371). persona/; · (Corfield v. Coryell, 4 Wash. rights rights are different from These which a man may have to a specific chattel or a piece of land or to the performance by another of a parti cular contract, or to damages of a particular wrong, invaded by individuals ; they are the all which may be capacity, power or privilege of having and enjoying the concrete (I) JI 1 U.S. 746. • S.C.R. SUPREME COURT REPORTS 597 those concrete rights and of maintaining them in the courts, which capacity, power or privilege_ can only be the State. These primordial and funda invaded by immunities of rights •are mental to in the 4th article of the citiztns which are referred it." Constitution and m (Italics mine). the 14th Amendment the privileges and 1953 The Stale of Weit Bengal v. Suhodh Copa! Bose and Others~ Patanjali Sasfrf C.J. res or laws. What Judges same class as the Judges, have a reference only to the present purpose is that thought We are not here concerned with the meaning and content of the phrase "privileges and immunities" the context of those provisions which, according some of privileges and immunities which owe their existence to is of the Federal Constitution or importance the two that the "right to take, hold learned and dispose of property" was one of those "primordial fundamental rights" of the to pursue happiness and safety and other such to free citizens and was freedoms appertaining the concrete rights which a person may different from have to a specific thing owned, being the capa city, power cir privilege of having and enjoying those concrete rights. Sub-clause (f) of clause (1) of article 19 seems analogous United Nations Declaration of Human Rights "Every one has the right association with others" and article 31 to clause (2) of article 17 "N:o one shall be arbitrarily deprived of his property." that the framers of our Constitution drew the same distinction and classed the natural right or capacity of a citizen "to acquire, hold and dispose of property" with other natural rights in the status of a free citizen and freedoms in article 19(1), while they pro and embodied vided for the protection of concrete rights of property owned by a person in article 31. The meaning of the phrase "to acquire, hold and dispose of property" as well as the nature of is also clear has reference from the terms of sections 111 and 298 of the Governc ment of India Act, 1935, where the same phrase is used to own property alone as well as the subject matter to which (1) of article 17 of I have no doubt inherent indicated above, in the sense to clause • .,.,. 598 SUPREME COURT REPORTS [1954] 1953 The State of West Bengal v. Subodh Gopal .. -Bose and Others. -Patanjali SaJlri C.J. in prohibiting imposition of "disability" on grounds of religion,. place of birth, descent, colour or any of them on a British subject domiciled the United Kingdom and on an Indian subject of His Majesty the case of citizens and non-citizens determined, not deal with specific property belonging is dealt with in section 299. expropriation of to such persons which liable intended If article 31, which There are difficulties it considered necessary constitutional protection to which the first place, in general. the caption "right in the way of accepting the view of the learned Judges below that article 19 ( 1) ( f) the concrete rights of property and 19 (5) deal with restraint they are to be In subjected. it will be noticed that sub-clause (f) of clause (1) of article 19 deals only with the rights of citizens, whereas article 31 deals with the rights of persons headed by to property'', was to protect property rights of citizens as well designed as non-citizens, why was provide for the protection of those rights in snb-clause (f) of clause (1) of article 19 also? I do not think to pre>· our Constitution-makers could have double-barrelled vide a to "acquire" and private property. Moreover, to the capacity "dispose of" property could only refer of a citizen. The word "hold", which inserted in my opinion, be between understood having to something different, viz., rights to specific reference things owned by a citizen ? I see no force in the objec tion that unless sub-clause (f) of clause (1) of article 19 is construed as relating to concrete read with clause (5) legislature would have the property enjoyment of private property by citizens. diffi- framers of our Constitution could have to differentiate between citizens and non-citizens to imposition of restrictions -0n enjoyment of private property. Such restrictions imposed in exercise of the power inherent in the State to regulate private rights of property when they to impose even unreasonable restrictions on to mean "own", and not two words must, intended rights also, to believe in regard It is • • 1953 The State of WestBt'ffgal v. Subodh Gopal Bose and Qthers. Patanjali Sastri c.•J. _,_, ,• S.C.R. SUPREME COURT REPORTS 599 intelligible it would be the case of to be exercised injury of others are sought naving similar rights, and the measure of restriction imposed in exercise of such regulative power must be ,citizens and non-citizens determined, alike, by the necessity of protecting the community. treatment of citizens On the other hand, differential if sub and non-citizens would be perfectly dause ( f) of clause ( 1) of article 19 and clause (5) are understood as dealing only with the freedom or capa city to acquire, hold and dispose of property in general, for, justifiable to exclude aliens from such freedom, as has been done' in several countries for the in respect benefit of their own nationals, particularly of land. Moreover, both by the preamble directive principles of State policy in Part IV, our Constitution has set the goal of a social welfare State the exercise of a large measure involve and this must the enjoyment of of social control and regulation of rights of property are private property. brought within judicial to the reasonable ,ness of such control and regulation might have an un duly hampering effect on that behalf, the makers of our Constitution may well have the Legislatures free to exercise such intended to leave control and regulation in relation to the enjoyment of "rights of property, providing only that if such regula the point of deprivation of property the owner should be indemnified under clause (2) article 31 subject the exceptions specified in para. (ii) of sub-clause (b) of clause (5) of article 31. the purview of article 19(1) (f), review under clause (5) as If concrete legislation reaches latter rights must be Nor am I much impressed with the suggestion that the reference to "exercise" in clause (5) of article 19 of the rights conferred by sub-clause (f) of clause (1) rights of indicates property. Clause (5) could as well contemplate restric tions on the excercise of a citizen's freedom to acquire, hold and dispose of property, as for instance, banning acquisition of land in a givien tribal area, or putting a ceiling on the quantum of land that a citizen can hold, or restricting alienation of land to specified classes of persons only (cf. Punjab Province v. locality, say a 1953 The State of lf e.st Bengal v. Subodh Gopal Bost and Others. PatanJali Sastri C.J. 600 SUPREME COURT REPORTS [1954J inherent in article 31, in public reasonableness of Dau/at Singh and Other (') and the review. such restrictions being brought under judicial For all that under the these reasons, I am of opinion the Constitution, all those broad and basic scheme of in the status of a citizen as a free freedoms man are embodied and protected from invasion by the State under clause ( 1) of article 19, the powers of State freedoms interest being regulation of those freedoms by defined to each of relation clauses (2) to (6) of that article, while rights of private property are separately dealt with and their protection provided for the cases where social control and regulation could extend to the deprivation of such in para. (ii) of sub clause (b) of clause (5) of article 31 and exempted to pay compensation under clause (2). from liability On this view, no question of correlating article 19 ( 1) the analogy of (f) with article 31 could arise and Gopalan' s .case has no application. On question whether section 7 of the amending Act is a reasonable respond ent's right to the property purchased by him could not also arise, as clause then have the kind already reference only mentioned. restriction on the exercise of (5) of article 19 could to disabilities of rights being this view, indicated Turning next it was put to the contention based on article 31 language of Das J. in (1), the learned Chiranjit Lal Choudhury's case( ) which Attorney-General fully adopted : It implies formulates "Article 31(1) form prohibiting the fundamental right negative the deprivation of property that a person except by authority of law. may be deprived of hi~ property by authority of law. Article 31 (2) prohibits the acquisition or taking posses sion of property for a public purpose under any law, unless such law provides for payment of compensation. It is suggested that clauses (1) and (2) of article 31 deal topic, namely, compulsory acquisi tion or (2) being only an elaboration of clause (1). There appear taking possession of property, clause (1) [1946] F.C.R. 1 (P.C.). (2) [1950] S.C.R. 869, 924. 1953 The State of West Bengal v. Subodh Gopal Bast and Othn's. - ' Patanjali' Sadri C.J. • S.C.R. SUPREME COURT REPORTS 601 to be construction then clause in any emergency, taking possession of the American law. The the authorities may have this suggestion. two objections to me If that were (1) the correct view, must be held to be wholly redundant and clause (2), In the next place by itself, would have been sufficient. such a view would exclude deprivation of property than by acquisition or taking of possession. otherwise One can conceive of circumstances where the State may have to deprive a person of his property without acquiring or same. For example, in order to prevent a fire spreading, to demolish an intervening building. This deprivation of property is supported in the United States of America as an exer-. cise of "police power". This deprivation of property is different from acquisition or taking of possession of property which goes by the name of "eminent domain" suggested implies that our Constitution has dealt with only the law of "eminent domain'', but has not provided for deprivation of property in exercise of "police powers". to adopt such construction, for I I am not prepared do not language used in article 31. On the contrary, the language of clause (1) of article 31 than that of clause (2), for depri vation of property may well be brought about other I think clause ( 1) enunciat~s the general principle no person shall be deprived of his property except by authority of law, which, put in a positive form, implies that a person may be deprived of his property, provid ed he is so deprived by authority of law. No question of compensation arises under clause (1). The effect of clause (2) that only certain kinds of deprivation of property, namely those brought about by acquisition or taking possession of it, will not be permissible under any law, unless such law provides for payment of com If the deprivation of property is brought pensation. about by means other taking possession of it, no compensation is required, provided that such deprivation is by authority of law." than by acquiring or taking possession of it. than acquisition or to do so by the feel pressed is wider I have made this lengthy extract in order to avoid These summarising . unfairness it. possible ~-95 S.C.I./59 1953 TheStateof WestBengid v. Subodh Gopal Bose and Others. P1Jtanjali Sastri C.J. • 602 SUPREME COURT REPORTS [1954) right. For, on to share I am unable those brought largely nullifies property, namely, the very conception of the "right observations were made while rejecting an argument of the petitioner in that case, which, howevtr, the learned in his favour on another point, and are Judge decided learned to my thus purely obiter. With all respect the view expressed by brother him. He reads clauses ( 1) and (2) as mutually exclu in scope and content,-clause (2) imposing limita tions only on two particular kinds of deprivation of about by private acquisition or taking possession thereof, and clause ( 1) authorising all other kinds of deprivation with no they should be authorised by limitation except to the acceptance law. There are several objections of this view. But the most serious of them all is the protection afforded by to rights of private property and, jndeed, Constitution to pro stultifies perty" as a fundamental this view, the State, acting through its legislative organ, could, instance, arbitrarily prohibit a person from using ills property, or authorise its destruction, or render for him, without any compensation and with useless to be served out a public purpose thereby, as these two conditions are stipulated only for acquisition and taking possession under clause (2). Now, the whole object of Part III of the Constitution is to provide protection rights mentioned freedoms and therein against arbitrary invasion by the State, wruch the Legislatures of the as defined by article 12 includes irony if the funda country. mental rights of property were, in effect, turned to be into an arbitrary power of the State by construction to deprive a person of his property without compensa taking possession of such property. If the Legislatures were to have such arbitrary power, why should compen sation and public purpose be insisted upon in connection two particular forms of depri with what are termed principle vation ? What could that clause (1) underlying defines to rights of property is no satisfactory answer, as the same power this differentiation? To say in relation It would be a startling than acquisition or the "police power" in all ways other rational 1953 The State of West Bengal V; Subodh Gopal Bose and Others. Patanjali Sastri C.J .. S.C.R. SUPREME COURT REPORTS 603 readily In as a member that case, he would fact, he could more <:oul<l 'as well have been extended to these two parti ·cular kinds of deprivation. Such extensioo would at the following anomaly : compensa least have avoided tion is paid to i~emnify the owner for the loss of his property. It could make no difference to him whether such deprivation was authorised under clause (1) or dause (2). In either case his property would be gone and he would suffer loss. It would matter little to him to the property after he was deprived what happened ·of it-whether it was used for a public purpose or was :simply destroyed without any public purpose being reconcile served. forced upon him if he found himself the public benefit ; his property being used participating for, the public. But that benefit that consolation would be denied to him by depri vation under clause (1), which makes his loss all the more grievous. But, according J.'s. the Constitution-makers have reading of that clause, the expropriated provided it is said, deprivation under -0wner. Why ? Because, is an exercise of "police power." This, dause (1) the clause is fallacious. You first construe my mind, as conferring upon the State acting through its Legis lature unfettered power to deprive owners of property in all other cases except the two mentioned justify such sweeping in clause (2), and then seek it "police power." a.nd arbitrary power by calling According to Das J. clause (1) was designed to confer to deprive persons of "police power" on than acquisition or their property by means other taking possession of such property. He would read that a person in a positive form as implying the clause may be deprived of his property by authority of law. In other words, the framers of our Constitution, who the fundamental rights beg~n P~rt III by . form.ulatii;g of mdmduals agamst mvas10n by the Legislatures the country, ended by formulating right of to ~eprive individuals of their property Lc;gislatures without compensat10n I indemnification of the State to Das for no 1953 The State of West Bengal v. Suboah Gopal Bose and Others, Patanjali Sastri G.J. 604 SUPREME COURT REPORTS LI954} Speaking of police power, as applied to personal liberty, Prqj:. Willis says( 1 ) : two main There are requirements for a proper exercise of the police power-(1) thel't must be a social interest the social must be, as a means end, relation thereto. to be protected which is more important interest in personal liberty, and (2) something which bears a substantial the accomplishment of restrictive is carefully purposes and This statement the exercise of to private property. This is equally true of police power as re.cognised and applied to in clauses (2) to ( 6) of article 19 which given effect regulative power of the Legislatures as delimit applied in clause (1) of the freedoms enumerated the freedom referred to in sub that article including clause (f). But clause (1) of article 31 imposes no such limitations. Why should such absolute power be con in relation to private property, ferred on the Legislature whereas clauses (2) to (6) of article 19 limited to imposition of only specified those cases ? Could it reasonable restrictions in each of have been intended that, while restriction imposed on ( 1) of article 19 the freedoms mentioned should be reasonable and in public interest, deprivation of property, except two cases provided for in clause (2) of article 31, need not be reasonable nor for the public benefit ? To say requirement of sufficient "authorisation takes no limitation restrictions under that in the case of note of the fact clauses (2) to (6) of article 19 also, their authorisation limitations have could only be by law and yet other law can authorisation by In limitation on . the Legislature, and obviously be no "police power", as developed in the American case law, is essentially a legislative power. in all other cases of deprivation law" was considered in clause imposed. in the fact, Now, what is this "police power" and how does its exercise by the Constitution of India provide for the State ? Referring to the doctrine of police power (I) Constitutional Law, p. 728. 1953 The State of West Bengal v. Subodh Gopal Bose aiid Others. Patanjali Sastri C.J. S.C.R. SUPREME COURT REPORTS 605 Is law. to be supposed former". This rejected the aforesaid case to regulate private rights in Gopalan's case(') : "When that in America, I said power (legislative power) was threatened with prostra tion by the excesses of due process, the equally vague i.e., the and expansive doctrine of "police power", power of Government public interest, was evolved to counteract such excesses." And Das J. (' ), said that the content of due process of law had to be narrowed down by the "enunciation application of the new doctrine of police power as an antidote or palliative the framers of our the doctrine of due ·Constitution definitely process of accepted the "antidote" doctrine of police power and (1) of article 31 as a specific embodied it in clause to deprive persons power conferred on the Legislatures Qf their property ? The suggestion seems unwarrant~d to the scheme of our Consti and, indeed, contrary in marked contrast with tution. That scheme, Constitution of America, legislative to distribute the State Legislatures powers among according the Seventh Schedule and the power of requisitioning of property" for Union "acquisition or I and in entry No. 33 of List and State purposes No. 36 of List II respectively. Thus, what is called the to be power of eminent domain, which inherent jurists and is accordingly Continental and American not expressly provided the American Consti the subject of an express grant in our tution, is made in express Constitution. Having granted the limita terms, the Constitution defines in article 31 tions on fundamental right to property of the owner, all funda mental rights of the people being in Go pal an' s State [see observations at page case(')]. But the power of social control and regulation the common g_ood 10f private rights and freedoms for in the sovereignty of the State according restraints on 198 such powers was the Union and the exercise the Lists of is assumed constituting thereof as the power included (I) [1950] S.C.R. 88, 200. (2) [1950] S.C.R. 88, 313. 1953 The State of West Bengal v. s,bodhl Gopal Bose and Others. Patanjali Sastri C.J. • 606 SUPREME COURT REPORTS [19541 (2) respect instance it does, the entire the powers the freedom defined the appropriate such freedom can be powers in clauses regulative in relation being an essential attribute of a social and political organisation otherwise called a State, and pervading, legislative field, was not specially in the legislative provided for under any of the entries to be exercised, wherever desired, Lists and was legislative power. Even as part of ( 6) of delimited, as article 19 to the rights and freedoms speci fied in clause (1), themselves are be exercised under to those laws made with respect the power of social control and matters. For example, regulation as applied to freedom of speech and expres sion is exercisable under a law made with entry No. 1 of List II (Public Order) or entry No. 39' of List III (Newspapers, books and printing presses) to a freedom not falling under clause (1} and in relation of article 19, to drink or to eat what restrained or even one likes, prohibited under a law made with reference to entry liquors, etc.) or entry No. 8 of List No. 19 of List American doctrine of police power as a distinct and' specific in our to the scheme Constitution and it is therefore contrary (1) of article 31 that clause must be terms and understood as conferring police power on the Legislature in relatioll' I entirely agree with the obser to rights of property. vations of Mukherjea J. in Chiranjit Lal's case('), "In interpreting the provisions of our Constitution we should go by the plain words used by the Constitution 'police makers and the importing of expressions indefinite power', which connotation in American law, can only make the task of interpretation more difficult." The correct approach, is to bear in mind the context pretation of . article 31 it has been placed. As alreadv and setting stated, Part III of the Constitution ti> afford protection to the freedoms and rights mentioned III (Drugs and poisons). Thus is a term of variable and the Constitution to say legislative power II (Intoxicating in my opinion, is designed in positive recognised in which is not to the (1) [1950] S.C.R. 869, 907 • !953 The State of West Bengal v. Subodh Gopal Bose and Others ... Patanjali Sastri: C.J. S.C.R. SUPR"ME COURT REPORTS 607 law, our Constitution- · inroads by the State which liberty or property of a subject except includes therein against the Legislatures as well as the executive Governments in the country. Though, as pointed out in Gopalan's case( 1 ) citing Eshukbayi Eleko v. Officer Administering ), protection against execu the Government of! Nigeria( 2 really needed under systems of tive action is not Government based on British jurisprudence according to which no member of the executive' can interfere with in pm the. suance of powers given by framing a written Constitution, makers, who were conferred such protection explicitly by including executive Governments of the Union and the States the definition of "the State" in article 12. A funda mental right is thus fought to be protefaed not only legislative organ of the State but also against its· executive organ. The purpose of article 31, against to emphasise, is not to declare it is hardly necessary to deprive a person of his pro the right of the State perty out, as the article shows, tl> the "right to property" of every person. But protect to property ? It how does the limitations on the power of protects the State consent of is an important limitation is a pre-requisite legislative action on that power its exercise. As pointed out by Cooley, "The right to public uses lies to appropriate private property is had, dormant pointing out the occasions, the modes, · conditions, and for its appropriation. Private property can agencies only be taken pursuant to struggle between prerogative •and Parliament having the prerogative right of endeq in favour of the latter, taking absolutism of Parliament, and the to compen sation as a fundamental right of the subject does not independently of Parliamentary enactment. The result is that Parliament alone could authorise interfer property. ence with to take away private property without the owner. It property became merged law"("). In England in the State, until the article protect the heading of legislative action it by defining enjoyment the right private private (1) [;950] S.C.R. 88. (2) [1931] AC. 662· (31 Constitutional Limitations, Vol. II, P· 1119. • 1953 The State of West Bengal v. Subodh Gopal ,_ Bose and Others, Patan ali Sastri C.J. 608 SUPREME 'COURT REPORTS [1954] It further in clause limitations on Blackstone also says that it is the Legislature alone that can interpose and compel the individual to part with his property( 1 ). It is this limitation which the framers of (1) of our Constitution have embodied thus designed to protect the rights article 31 which to property against deprivation by the State acting through its executive organ, the Government. Clause (2) the Legislature imposes two is prohibited from making a law authorising itself. for public purposes and on pav ·expropriation except ment of compensation for injury sustained by the limitations on the power of important owner, These the State, acting the executive and legislative to take away private property are designed to organs, the o~ner against arbitrary deprivation of his protect (1) and (2) of article 31 are thus not property. Clauses mutually exclusive in scope and content, but should, in my view, be read together and understood as dealing the protection of the with the same subject, namely, to property by means of the limitations on the State power referred to above, the deprivation contem plated in clause (1) being no other than the acquisition or taking possession of property referred to in clause (2). through (1), which referred therefore, be considered Much argument was expended to show that clause (2) two specified modes of depriYing a dealt only with person of his property, namely, acquisition and requisi to be tioning and could not, a mere elahoration of clause deprivation generally. It was submitted that clause (2) should be read with entry No. 33 of List I, No. 36 of List II and No. 42 of List to no acquisition or other mode of deprivation. It was also pointed out that sub-section (2) of section 299 of the Government of India Act, 1935, as well as entry No. 9 of List II of to com the Seventh Schedule thereof referred only pulsory acquisition of land for public purposes, and it the Bombay High Court held in Tan Bug was not until T aim and Others v. The Collector of Bombay and Others (' ) , that rule 75 (a) of the Defence of India Rules requisitioqing of property and III, each of which refers (I) Commentaries, Vol. I, p, 110. (2)'1.L.R. 1946 Born. 517. !953 The State of West Bengal v. Subodh Gopal Bose and Others. Patanjali Sastri c.J. :S.C.R. SUPREME COURT REPORTS 609 India to compulsory acquisition of land including -under which a property situated in Bombay was requisi tioned was ultra vires on the ground that entry No. 9 of List II did not confer on the Legislature the power of requisitioning, that such power was conferred on the Central Legislature by (Proclamations of :Emergency) Act, 1946 (9 and JO Geo. V, Ch. 23). the Regulations and Acts Attention was drawn relating the Land Acquisition Act, · 1894, all country -of which provided for the property the vesting of in the Government or in one of its officers, .acquired -and it was suggested the framers of our Consti- -mtion, who must have been aware of the difficulties · ansmg out of the lacuna India Act, 1935, to the power of requisitioning, in clause (2) . added referted . and the word "requisitioning" the words -to above. It was, ·"acquired" should not be taken to have reference to all forms of deprivation of priva•:e property by the State. the words "taken possession- of" or "taken possession of" in the Government of therefore, urged in the entries regard regard to construe the words l see no sufficient reason in clause (2) ·"acquired or taken possession" used 'article 31 in a narrow technical sense. The Constitution mar~ s a definite break with the old order and intro -duces new concepts to many matters, particularly those relating to fundamental rights, and it ·cannot be assumed that the ordinary word "acquisition" in the same narrow sense was. used in the Constitution it may have been used in pre-Constitution in which legislation relating to acquisition of land. These enact land, whereas ments, to moveable property as well, as to article 31 (2) which no formal is neces the assumption ·~ary. Nor ·that "taking possession of property" was intended mean the same property" in the entries of the Seventh Schedule. If referred to the word "requisi that was ·tioning" not used in clause (2) as well ? It is fallacious is synony that unless "taking possession" ·to suggest :inous with "requisitioning'~ the power to make a law transfer or vesting of title there any warrant for it should be noted, intention,- why was "requisitioning related to thing as refers 1953 The State of West Bengal v. Suhodh Gopal Bos(I and Others. Patanjali Sastri C.J. 610 SUPREME COURT REPORTS [19541' conferred is not a "acquisition" "acquisition" term of art, and the court decided by a majority taking of possession of property would authorising in any of the Lists of the be lacking because no entry that power. A specific entry Seventh Schedule confers legislative Lists is no more necessary conferring such power than for conferring power make a law authorising deprivation of property which [See observations in clause (1) of article 31 postulates. P. D. Shamdasani v. Central Bank of lndia( 1 )] • The ordinarily means coming into possession of, obtaining,. gaining or getting as one's own. It is in this generat the word has been used in articles 9, 11 and 19(1) (f) and not as implying any transfer or vesting In Minister of State for the Army v. Dalziel(') of title. a Full Bench of the High Court of Australia had construe the scope of the legislative power with respect property Commonwealth Parliament by section 51 (xxxi) of the (63 and 64 Vic., Ch. 12h Austrailan Constitution that the power to take possession of property for included the power a temporary purpose for an indefinite period. To say transfer and vesting of that acquisition the real nature is to overlook of the power of the State as a sovereign acting through, to appropriate the· property of a subject without his consent. When the· it creates title in·. State itself rather than acquire it from the owner, the nature· and extent of the title thus created depending on the· purpose and duration of the use to which the property: appropriated law authorising its acquisition. No formula of vesting is necessary. As already stated, in the case of move able property no apart from seizing And, what is more, clause which excepts any law made tion of danger from the operation, of clause (2) shows that the latter clause, but for such. liability 'to pay compensation exception, would for deprivation by destruction, which must therefore: transfer or vesting of title· it could have been contemplated •. (5) (b) (ii) of article 31, in future "for the preven implies in the Government legislative and executive organs .chooses to exercise such power, to be put as disclosed in to life or property" is intended formal entail (!) (!952] S.C.R. 391, 394. (2) 68 C.L.R. 261. 1953 The State of West Bengal v. Subodh Gopal Bose and Others , P1Jta~ali Sastri:. C.J. • S.C.R. SUPREME COURT REPORTS 611 entries it clear to make to provide for destruction of its grammatical variations be taken to fall within the scope of clause (2), for a law to life or property made for the prevention of danger may often have I am of opinion that the word property appropriate. should, "acquisition" and the context of article 31 and the entries in the Lists referred to above, their ordinary be understood sense, and the additional words "taking possession of" in article 31(2) or "requisitioning" are used contradistinction respectively, with, but in amplification of term "acquisition'', so as that the words taken together those kinds of deprivation which do not cover even the continued existence of the property after involve it is acquired. They would, for instance, include des truction which implies into possession of the reducing thing sought to be destroyed as a necessary step to that end. The expression "taking possession" can only mean taking such possession as the property is susceptible of and not actual physical possession, as in, or in any company "the commercial or industrial .ex pressly is not included occupancy or susceptible of to express seizure. the precise scope and mean any concluded opinion on ing of the expression "shall be taken possession of or acquired" that it does not in the same wide sense as the admit of being construed word "taken" used in the Fifth Amendment of implies such an appropri American Constitution, but ation of the property or abridgement of the incidents of its ownerships as would amount to a deprivation of the owner. Any other interference with enjoyment of private such appropriation or abridgement would· not be compensable under article 31(2). actual It is, however, unnecessary here undertaking", which is in clause (2) except (2) of article 31, in clause short of property physical interest owing, to say . It will now be seen the view expressed above, namely, that the two objections raised by · Das J. 1953 The State of Wll'stBengal v. Sub.?dh Gopal Bose and Others. PatanJali Sastri C.J. 612 SUPREME COURT REPORTS [1954] that clause ( 1) would the necessity the exercise of clauses (1) and (2) must be read together and under stood as dealing with the same topic, are really baseless. The first objection it embodies be redundant. It would not be so, because one of the three limitations on the exercise important of the State power of deprivation of private property, legislative action as a namely, condition precedent the power and the executive organ of constitutes a protection against the State. The second objection that the State's. power in an emergency to deprive a person of his property without payment of compensation, as for example, demolish an intervening building to prevent a confbg ration from spreading, would be excluded is equally baseless. Cases of that kind, as we have seen, would fall within the exception in clause (5) (b) (ii), and no compensation would be payable for loss caused by the destruction of property authorised under clause. The learned Attorney-General suggested sub-clause (b) was inserted ex abundante cautela as even that a law of the without it no one could have supposed that sub-clause would fall under kind mentioned in dause (2). There could have instance, paragraph (i) of that sub-clause was a distinct power. If the It exceptions that they need not have been explicitly provided equally must be second objection of Das J. fall to the ground. To say introduced by that sub-clause (b) is way of abundant caution is not to do away with the exceptions but to emphasise their existence aliunde. provide considered it was Whether that destruction of private property under expressly .emergency to pay <:ompensation or whether the State's power to do so that sub-clause (b) (ii) was was so well established really unnecessary and must be taken to have been inserted ex abundante cautela, in either view, the second objection must equally fail. The fact this argument. in sub-clause (b) were so obvious been no doubt, the power of to appreciate entails no is difficult conditions necessary referred taxation liability that all for, _ <:ases referred to in sub-clause (b) are different S.C.R. SUPREME COURT REPORTS 613 of deprivation of property and, 'construction might arise they are not expressly and the requirement under clause compensation, to insert clause (5) (b). the framers have in a written Constitution specifically excepted from to payment of it necessary as difficulties thought (2) as 1953 TheStatt of West Bengal v. Suoodh Gopal Bose and Others. Patanjali Sastr C.J. \Vhere was is provided for the necessity, it was asked, to provide in clause (1) of article 31 for protection against the the matter of compulsory executive government the State, as no such pro acquisition of property by the regulative tection the case of to (6) ? The powers exercisable under article 19(2) answer the same need apparently which dictated the enactmen_t of article 265 providing for similar In any case, this protection would be no more of an objection, if it be an objection, than to the other view which also recognises the necessity for legislative action before a person could be deprived of his property. the matter of taxation. the view I have indicated above is : the goals set by the Constitution was Attention was called to article 38 as showing that one of promotion of social welfare, and it was urged that the attainment of the growing that object as well as complexities of modern conditions of life must call for an expanding power of social control and regulation, in the sphere of the enjoyment of private particularly property and that the exercise of such power withont liability to pay compensation ought not to be entailing limits specified in article confined within the first place, 31 (5) (b ). This is a misconception. In social welfare is not inconsistent with the ownership of private property and does not demand arbitrary ex propriation of such property by the State without the other hand, as pointed out by compensation. On in nothing more Blackstone "The public good in the protecion of every essentially interested individual's private rights as modelled by the muni is not an antiquated view. So law"('). This the Declaration of Human modern a document as (l) Commentaries· Vol. I, p. 109. the qarrow '" 1953 The Slate of JVest Bengal v. Subodh Gopal 13ose and Others. .Patan}ali Sastri C.J. 614 SUPREME COURT REPORTS [1954] relation evidently rights of private property. the argument also overlooks the United Nations has specifically provided Rights for the protection of private property by including the· clause "No one shall be arbitrarily deprived of his in article 17, and the framers of our Consti property" that view. tution proceeded Secondly, that clause (5) (b) was not intended to define and does not define exhaustively the power of social control and regulation It only limits the purposes for which the power could be exer to pay compensation, though its cised without exercise results in the sense already explained. But where its exercise does not involve deprivation of property, no question of paying compensation would arise, and the Legislatures in the country would, as to enact already indicated, be free laws providing for the exercise of such power within the fields marked out for them in the Legislative Lists. There is, therefore, no room for the apprehension that article 31 (5) (b) would unduly cramp social control and regulation of private property for the public good or would lead to safety of the community. liability in deprivation of property any alarming consequences against deprivation But why all this ado, it was asked, about protection legislative action ? against deprivation of property by in the Consti There is no such protection provided property tution of taxation. Why exercising the Legislature then complain if there is no protection against Legislature authorising deprivation of property with out compensation under article 31(1) ? Our Consti the Legislature, as tution-makers, the people of Great Britain trust their Parliament which In protects is not well-informed and organised ultimate analysis, the true and effective protection against public opinion arbitrary action of the Legislature ? The argument has no force. So far as the power of taxation is con fundamental cerned, immunity is why presumably no constitutional is provided .against the exercise of that power. But fundamental recognises no taxation and that protection the Englishman's the Constitution it was said, property. trusted .. .. :S.C.R. SUPREME COURT REPORTS 615 Indeed, the Constitution the argument stand on a different :rights under footing. the policy of including a declaration of such rights in Part III of the Constitution. ), I said : In Gopalan's case( 1 is a bold challenge "Madison (who played a prominent part in framing the First Amendment of the American Constitution) .Pointing out the distinction, due to historical reasons, between the American and the British ways of securing ·'the great and essential rights of the people', observed ''Here to Jaws.' " prerogative but by Constitutions paramount 'This has been law in Part III .of the. Indian Constitution. they are secured not by translated into positive laws paramount !953 The Stat• of WtJtBengal . v. Subodh Gopal Bost and Others. Patanjali Sastri c.J. There have always been in a Constitution. Britain never believed two schools of opinion the efficacy of a declaration of fundamental ·regarding in a ·rights formal declaration of .detnand of the Parlia Indian Delegation mentary Bill which was later passed as the Government .of Joint Parliamentary Committee mental ·observed(' ) : India Act, 1935, should embody certain rights. Referring to rights, so-called fundamental for asserting . 'The question of rights, ·which was much discussed at the three Round Table · Confeterices, was brought to our notice by the British India Delegation, many members of which were riew Constitution should contain a , anxious for reassuring . declaration of rights of different kinds, · minorities the equality of all persons 'before the law, and for other like purposes; and we .have examined more than one list of such rights which Statutory Commission subject :-'We are ·observe with oilware. that such provisions have been inserted in manv in those of the European Stat~s ·Constitiltions, notably formed after the war. Experience, however, has hot to be of any great practical value. ·shown them Abstract declarations are useless unless there exist the 'Will and means to make them effective.' With these compiled. The reference (1) (1950] S.C.R; BB, !9B. ' , (2) Para. 366. 616 SUPREME COURT REPORTS [19541 1953 Tk1State of I-Vest Bengal v. Sulodh Gopal Bost and Others. Patanjali Sastri C.J. observations we entirely agree ; and a cynic might in the history during_ indeed find plausible arguments, the last the most effective method of ensuring asserting the destruction of a fundamental right include a declaration in a constitutional instrument.'.' ten years of more than one country, its existence But the American view is different. Answering a in. inclusion of a Bill of Rights similar objection to the the American Constitution, Jefferson said : "But though less. There it may cram Government it is not absolutely efficacious under all circumstances, it is of great potency always, rarely inefficacious. A brace the more will often keep the building which would have fallen with that remarkable difference a between the characters of the inconveniences which attend a declaration of rights, and those which attend the want of it. The inconveniences of the declaration its useful· are, exertions. But the evil of this is short-lived, moderate,. inconveniences of the want of a. irreparable .. declaration to worse. They are The executive the sole, it the principal, object of my jealousy. The is scarcely formidable tyranny of (Quoted dread at present, and will be for many years." 8th Edn., in Cooley's Constitutional Limitations, Vol. I, p. 535). are permanent, affiictive, and in constant progressive from bad in our Governments the Legislatures reparable. The the most is not It is obvious that the framers of our Constitution • the American view and included Part III It shared the Constitution of India. approach than a constitutional way, of protecting liberties of supreme. therefore, a wrong the articles of Part III by point is more a traditional the rights and by making Parliament the British way, which to construe individual is, On this view of the meaning and effect of article 31,. the question is whether section 7 read with section 4 of the amending Act infringes the fundamental right of that article. These provisions. respondent under " T ht Sl11t1 tt/ . West Bengal. v. Suborl/1 GopaJ Bost and Othtr1. Patanjali Siutrl C.J.

5.C.R. SUPREME COURT REPORTS 617 to all "property" is designed those specific 'revenue sale, namely, law with respect things by their retrospective operation undoubtedly the respo11dent's the incidents of the estate purchased by him at abridge rights of property by nullifying one of the right to annul certain kinds of under-tenures and evict certain classes of under t~nants in occupation of portions of the estate. Does such abridgement amount to deprivation of property withjn the meaning of article 31 as interpreted above, and, if so, does it fall within the exception in clause (5) (h) (ii) of that article ? Now, the word the context of to protect private property . article 31 which in alt its forms, must he understood both in a corporeal 'ensc as having reference things that are susceptible of private appropriation and enjoy ment as well as in its juridical or legal sense of a the owner can exercise under bundle of rights which the municipal to the user and enjoy ment of those the exclusio11 of all others. it sometimes This wide connotation of the term makes difficult to determine whether an law is a deprivation of the meaning of property within article 31 (2), for, any restriction imposed on the use and enjoyment of property can be regarded as a depriva tion of one or more of the rights theretofore exercised by the owner. The American courts have experienced similar difficulty in deciding. whether a given statutory abridgement of the rights of the owner is an exercise of the police power" for which no compensation can be claimed, or a "taking" of property within the mean ing of the Fifth Amendment clause "Nor shall private property be taken for public use without just compen J. £ation." "The general said Holmes in delivering in Pennsylvania Coal Co. v. Mahon('), "is that while property may be regubted to a certain extent, it will be recognised as a taking." The vague and far, expansive doctrine of "police power" and the use of the term "taken" in the Fifth Amendment construed in a very wide sense to cover any injury or to property, coupled with the equally vague damage rule at least" the majority opinion regulation goes impugned so as (I) 260 U.S. 393, 3--95 S.C.T./59 1953 TheStattof West Bengal v. Subodh Gopal Bcse ond Others. l'atanjali Sastti C.J. 618 SUPREME COURT REPORTS [1954] concept expansive the word "deprived" of "due proi::ess'', allow a greater freedom of action to the American courts m accommodating and adjusting, on what may seem them a just basis, the conflicting demands of police power and the constitutional prohibition of the Fifth Amendment. Under the Constitution of India, how ever, such questions must be determined with reference to the expression "taken possession of or acquired" as interpreted above, namely, it must be read along with in clause (1) and understood as having to such substantial abridgement of the rights of ownership as would the owner of his property. amount No cut and dried test can be formulated as to whether in a given case the owner is "deprived" of his property the meaning of article 31 ; each case must be within decided as it arises on its own facts. Broadly speak that an abridgement would be so to a deprivation within the substantial as meaning of article 31 in effect, property owner, or seriously its use and enjoyment by him, or materially reduced its value. it withheld the possession and enjoyment of to amount if, to deprivation of it may be said reference impaired The learned Judges of the High Court did not consi <ler this point of view. As has been the case from stated, they applied article 19 (1) (f) and (5) and held that section 7 of the amending Act, by its retrospec tive operation, imposed on the respondent's enjoyment of the property purchased by him at the revenue sale restrictions which were not reasonable. That view, for reasons already indicated, cannot be accepted and the matter has to be looked at from the point of view interpreted above. A comparison of of article 31 as the scope and effect of the old section 37 which is substituted in its place by section 4 of the amending Act and which section 7 shows to be clearly retrospec the right of a purchaser tive, discloses that, although to annual under-tenures and evict under-tenants curtailed by the new section 37 by enlarging the scope it entitles the purchaser, as a countervailing advantage, to enhance tenants the rent payable by tenure holder~ and the old section, the exceptions 1953 The State of West Bengal v. Suhodh Gopal Bose and Others. Patanjali Sastri C.J. S.C.R. SUPREME COURT REPORTS 619 to do is to continue it was found In other words, what newly brought within is left free in other respects of the property as before. amending Act seeks the protection provided by the exception section, as ferring certain compensating benefits on ser. This amendment tenancy tional relief to found, due to changing conditions, tenantry. I find abridgement sought the rights of a purchaser at a revenue sale stantial as to amount the meaning of article 31 (1) and within arises question accordingly clause (5) (b) (ii) to the case. the exception. The purchaser in enjoyment to enlarge the scope of in the old to be inadequate, while con the purcha this country affording laws were to operate harshly to hold that retrospectively of is so sub to a deprivation of his property (2). No applicability of tenants whenever to be effected the line with the tenancy it difficult legislation is in In the result, the appeal is allowed and the judg respond the costs of this appeal incurred by the ment of the High Court is set aside. The first ent will pay appellant here and in the lower Court. M>:HR CHAND MAHAJAN J.-For reasons given judgment in Dwar kadas Shrinivas v. Sholapur Spinning and Weaving Mills Ltd., (C.A. 141of1952)(') I the Chief Justice in his construc agree with my Lord tion of article 31 'of the Constitution. reached by him, and in his decision of the conclusions the appeal. I also concur DAs J.-I agree but I have arrived at process of before us have issues it my decision in some detail. that this appeal must be allowed this conclusion by a different the arguments advanced raised very · important constitutional is only right that I should give the reasons for reasoning. As The facts and circumstances leading up present appeal are as follows : ' At a revenue sale held on the 9th January, 1942, respondent Subodh Gopal Bose purchased entire Touzi No. 341 recorded in the collectorate of the (I) Reported infra. 620 SUPREME COURT REPORTS [1954} 1953 The State <!f J Vest Bengal v. Subudlt Uujwl BoJe and Ol/icrs. Das]. settled district of 24-Parganahs in West perma11ently Bengal. At the date of that sale the auction-purcha sers at a revenue sale had, under section 37 of the Bengal Land Revenue Sales Act, 1859, as it then stood, certain rights thus: as therein mentioned. That section districts of Bengal, Bihar "37. The purchaser of an entire estate in the this Act for the recovery of arrears the estate from all encumbrances which may have been to avoid and annul all under-tenures to eject all under-tenants, with permanently-settled Orissa, solt! under due on account of imposed upon it after the shall be entitled forthwith following exceptions :- the same shall acquire time of settlement; First-lstimrari or Mukarrari tenures which have been held at a fixed rent from the time of the perman ent settlement. Secondly-Tenures ex1st111g at time of settle ment which have not been held at a fixed rent ; Provided always rents of such tenure sl; all be liable . to enhancement under any time being in force for the enhancement of the rent of such tenures. law for Thirdly-Talukdari created since diatel y of the proprietors of estates and farms of years so held, when such been duly tenures time of settlement 'and held 1mme for terms tenures and farms have registered under similar the provisions of this Act. lands whereon ·of Fourthly-Leases dwelling houses, mannfactories or other permanent buildings have been erected, or whereon gardens, plantations, tanks, wells, canals, places of worship or burning or burying grounds have been made, or wherein mines have been sunk. And such a purchase~ as is aforesaid shall be entitl the manner prescribed by any law in force for the enhancement of the land coming within the fourth class of if he can prove ed to proceed for the time being rent of any exceptions above made, the same • S.C.R. SUPREME COURT REPORTS 621 have been held at what was orginally an unfair .-and if rent, equal exceeding twelve years ; but not otherwise ; rent, the same shall not have been helcl at a fixed land, for a term to the rent of good arabl• Pro\'idcd always that nothing in this section con tained shall be construed to entitle any such purcha to eject any raiyat having a right of ser as aforesaid rent or at a rent assessable ac occupancy at a laws in force, or .to cording rules under enhance the manner prescribed by such laws, or otherwise than irrespectively of all engage ments made since the· time of settlement, may have been entitled to do." the rent of any such raiyilt otherwise than former proprietor, .. 195, Tht Statt of H' e1t Btngal v. Subodh Gnpal ]Jose and Others. Das]. appertaining In . exercise of his the section set out rights under the respondent Subodh Gopal Bose annulled all abo\'e to the under-tenures and tenancies instituted a suit, ToU'Li a\\l\ on the 18th March, 1946, in the Fourth Court of being Title Suit No. 35 of 1946, the Subordinate Judge at Ali pore 24-Parganabs respondents Nos. 2 to 6, claiming the ejcctment of that he was entitled recover possession of the lands in suit by virtue of the rights conferred on him by section 37. The respondent No. 2, who was the defend ant No. 1, alone contested tlic suit. His defence was, i11ter. alia, that he was a raiyat and as such protected to section 37. He also claimed protec by d1c proviso to that section. The tion under learned Subordinate Judge who tried the suit deliver ed his judgment on the 14th February, 1949. By that the contentions . of the contest judgment he overruled for ejectment a decree ing defendant and passed against him. He dismissed the suit against the otl1er to 6), defendants (who are now holding that suit. responclents Nos. 3 they were not necessary parties the fourth exception On the 25th March, 1949, respondent No. 2 preferred an appeal, being Title Appeal No. 252 of at Alipore, 24- the District 1949, before Parganahs. That appeal was transferred to the court Qf the Additional District Judge for hearing. While Judge 622 SUPREME COURT REPORTS [1954] 1953 The State of West Bengal v. Subodh Gopal Bose and Others. Das]. that appeal was pending the West Bengal Legislature passed West Bengal Act VII of 1950, called (West Bengal Amend Bengal Land Revenue Sales ment) Act of 1950, which received the assent of the Goyernor of Bengal on the 15th March, 1950, and was published in the Official Gazette on the day. By section 4 of the amending Act, section 37 of the Bengal Revenue Sales Act, 1859, was replaced by a new section the material part of which runs thus : " "37. (1) The purchaser of an entire estate m settled districts of West Bengal recovery of arrears due the estate free imposed leases the permanently sold under this Act for on account of the same, shall acquire from all encumbrances which may have been and annul all tenures, with the following exceptions : time of settlement and shall be entitled holdings and (a) tenures and holdings which have been held settlement either rent or fixed rate of rent, time of the permanent free of rent or at a fixed (b) (i) tenures and holdings not included in excep tion (a) above made, and (ii) other leases of land whether or not for pur poses connected with agriculture or horticulture, existing at the date of issue of the notification for sale of the estate under this Act : Provided that notwithstanding anything contained in any law for the time being in force or in any lease or contract no person shall be entitled to hold under such a purchaser as is aforesaid any tenure, holding or lease free of coming within exception rent or at. a low rent or at a rent or rate of rent in perpetuity or for any specified period unless the right so recognised in force by any under any law for competent civil or revenue court ; and the purchaser shall be entitled in the manner prescribed in force by any to hold has been expressly (b) above made, time being time being to proceed law for S.C.R. SUPREME COURT REPORTS 623 determination of a fair and equitable tenure, holding or lease." rent of such 1953 The Slate.of WestBengat v. Subodh Gopa[ Bose and Others. Das]. Section 7 of the amending Act provides as follows : "7. (1) (a) Every suit or proceeding for ejectment of any person from any land of section 37 or section 52 of the said Act, and in pursuance • review (b) every appeal or application revision arising out of such suit or proceeding, pend the date of the c01nmencement of ing at this Act the suit, proceeding, appeal or application shall. if could not have been validly instituted, preferred or made had the date of this Act been in operation at the institution, the preferring or the making thereof, abate. (2) Every decree passed or order made, before the date of commencement of the eject in pursuance of ment of any person section 37 or section 52 of the said Act shall, if the decree or order could not have been validly passed or made had this Act been in operation. at the date of the passing or making thereof, be void ; this Act, for from any Provided that nothing in this section shall affect the posses any decree or order in execution whereof sion of the the decree or order was passed or made, has already been delivered before the date of commencement of this Act. in respect of which suit, abates (3) Whenever any proceeding, appeal or (1) or any application (2), decree or order becomes void under sub-section all fees paid under the Court-fees Act, 1870, ·shall be refunded to the same were respectively paid." the parties by whom sub-section if that section be valid It is quite clear that under this section 7 the suit respondent Subodh Gopal Bose must abate favour must become intra t!ires the and the decree passed Constitution of India. respondent Subodh On the 21st Gopal Bose applied the Additional District Judge before whom the appeal was pending to make July, 1950, before law and in his

1.953 Tri State of w~.JI flen:al v. Sub.,dh Gopal BoJt and OtherJ. Da•J. 624 SUPREME COURT REPORTS [19541 transferred the Constitution of a reference under article 228 of for a decision of the question whether the pro India visions of section 7 were void being ultra t1ires the learned Additional District Judge Constitution. The the 16th September, 1950, dismiss by his order dated ed that application. On the 24th November, 1950, the · respondent Subodh Gopal Bose applied High Court under article 228 and eventually on 18th December, 1950, the High Court directed to the High Court only for appeal to he the decision of the constitutional point. The pro ceedings were numbered as Reference Case No. 4 of 1950. Notice having been given by the Court to the the State of West Bengal, Advocate-General the 22nd Bengal appeared on that section 7 im March, 1951, posed an unreasonable respondent Su hod h Go pal Bose's hold property and violated his right guaranteed by article therefore. 19 (1) (f) read with article 19 (5) and was, void under article 13 (1). With this finding the High lower appellate Court sent hack the light of that finding. On the High Court gave appeal to us. Hence the present appeal. t.hc 30th November, 1951, leaYc for disposal of the appeal restriction on the State of West Bengal the High Court held the Reference. On furnlamental the records review or Section 7 of the amending Act, is challenged before us, rights. Accordnig to the validity in terms, affects pre whereof nisting that section every suit or proceedings for ejectment under old section 37 and nuy appeal or application rev1S1on arising out of such suit or proceeding pending at the commencement of the amending Act if the suit, proceeding, appeal or application could not have been validly the date of such .amending Act been Further, suit, application. every decree passed or. order made before the com mencement of the amending Act for the ejectrhent .'Of land in pursuance of old section 37 any person from if such decree or order is likewise if the <:oukl not have been validly passed or made in operation at referred or made, had to become void proceeding, is to abate instituted, appeal J953 The State of TVtst Bn1gal , .. Subodh Copa! Bose awl Others. ·Das]. S.C.R. SUPREME COURT REPORTS 625 is no section g1vmg, the new rights by inter alia, therefore, clear in operation at longer available commencement of to avoid and annul It pre-existing the new section 37. Although or or9er. The proviso, however, to section 4 which has section 37 the date of amending Act had been . the decree in execution whereof possession had ·decrees or orders before delivered that section 7 is, amending Act. effect, affects retrospective operation stituted, the old section 37 of the Act of 1859. A cursory comparison · of the language of the olcl section 37 with that of the new section 37 will at once make it clear that ;ubstantial the old right given by to avoid and annul under-tenures and to purchaser eject under-tenants to him the opening part to give to the purchaser of the new section 37 purports the right tenures etc., ·right, 'by reason of the wide sweep of exception (b), has,' for all practical purposes, ceased to exist. The ·the purchaser of .new section 37 does not deprive the estate purchased . the physical property, namely, ·at the owner of that · property" and can exercise and enforce .except . all .that he cannot, · by ·new section 37, the under-tenures etc; or eject avoid or annul In other words, out of · the bundle undcr:tenants. the ownership acquired by him of. rights constituting item of important right .under ·has hecq· taken away, · thereby abridging or rcstrict ·ing his ownership. The· respondent, Subodh Gopal Bose, contends right, •under that his . funcbmental article 19( 1) (f) of the ;,Constitution, namely his right to enjoy and exercise .to hold, . ·that is to say, his right to · the property the full the old section · 37 has been ·acquired by him under viobtecl operates 7 which · and, .retrospectively retrospective operation is ultra vires 'the Constitution · and . the new section 37 :is ·void under article 13 ( l). : ,, «:ontended . The leanied Atforney-General the rightcs. which his ownership gives him, · revenue. sale and he continues not seriously therefore, and.; gives the old section 37, an- impugned . · section rights of ownership reason of the in relation section to be 1953 Tht State of West Bengal v. Subodh Gopal B1Jst and Others. Das]. 626 SUPREME COURT REPORTS [1954J provision is perfectly in the interests of the imposition of a are wholly contention unreasonable. to show any introduced the new section 37 amounts learned Attorney-General , submits its conclusions on three retrospective operation of absence of any (ii) the right given to the purchaser prejudicially affected by the old section 37 but he maintains that the abridge ment of the rights of the purchaser at a revenue saJe. t<> brought about by nothing more reasonable right conferred by restriction on the exercise of the article 19 ( 1) (f) the general pub legitimate and permissible under lic and clause (5) of that article. The High Court repealled. the above noted and held The High Court restriction was (i} things, namely, sec- impugned tion, the failure· abatement of the purchase price and (iii) impugned· reason why the of the State amending Act •. section was the first The two elements the High> the purpose of deter Court mining whether imposed was reason~ in the interest of the general public. Ordinarily is made a statute intend retrospective by express words or necessary ment ; but, the· is expressly or by necessary impli cation made retrospective, does not, by itself, furnish· the statute is prima· for saying any cogent reason facie unfair and, therefore, unreasonable. While I see· this argument I am, nevertheless, not some force convinced fact of the statute being given, retrospective operation may not be properly into consideration reasonableness" in the interest of the general of the restriction imposed public. Nor am I satisfied that the loss occasioned to. the purchaser by reducing, without any abatement of in possession into one in the purchase price, an estate reversion may not also be taken into account in deter mining the restrictions permis the reasonableness of sible under article 19 (5). As said by my Lord the in The State of Madras v. V. G. Row(') :: Chief Justice into consideration by irrelevant for restriction the learned Attorney-General submits, is construed prospectively unless in determining that a statute (I) [1952] S.C.R. 597 at p.607. ' S.C.R. SUPREME COURT REPORTS 627 "It is individual statute in this context to bear in mind important test of reasonableness, wherever prescribed, should be applied to each impugned, and no abstract standard, or general pattern, of reason ableness can be to all cases. to have been infringed, The nature of the right alleged the underlying purpose of the restrictions to be remedied extent and urgency of the evil sought thereby, imposition, prevailing conditions at the time, should all enter into the judicial verdict." laid down as applicable the disproportion of imposed, 1953 -The State of WeslBengal v. Subodh Gopal Bose and Others ... Das]. in the amending Act. Indeed, As regards the third element, the High Court has that no suggestion had been made before pointed out it that the number of pending suits or proceeding large or ejectment of tenants was abnormally there was any other cogent reason for introducing the impugned section in the lswari Prasad v. N. R. Sen(') a special later case of bench of the same High Court, consisting of three two who had decided the learned Judges case under appeal before us, has distinguished the very then under appeal, and in judgment from doing so, laid great emphasis on the absence of any such this case. The High Court held that suggestion those circumstances were present in the later case and accordingly held that the law impugned in the later case was not unconstitutional. including the one i11 It is, restrictions indeed, very unfortunate imposed by that several import ant matters which would have assisted the High Court in arriving at a right conclusion as the reasonable impugned ness of to the notice of the Higb section were not brought Court. Thus, the statement of objects and reasons to the Bill which eventually the amending Act does not appear to have became the High Court. The statement of been placed before to the Bill' quite the objects and reasons appended clearly application of the old section 37 to a large number of in Calcutta people in the urban area and particularly the great hardship caused by for example, appended refers (I) 55 C.W.N. 719 at P· 727. i953 ThtState of Wt'!I Bengal v. Subcdh Gopal BoJt and Oliirrs. Dos]. 628 SUPREME COURT REPORTS [19541 supplied in exploiting is not admissible as an aid land values had to speculative purchasers then prevailing phenomenal and its suburbs where the the necessary increase incentive for unwarranted large-scale eviction and main section tains, according that such the sponsor of the Bill, large-scale c1·ictions necessitated enlargement of the scope of protection of that section, with due safe It is for the securing of Government revenue. guards well settled by this court that the statement of objects and reasons to the construc (sec Aswini Kumar Gliose v. Arabinda tion of a statute lioseC)) and l am not, therefore, referring to it for the purpose of construing any part of the Act or of ascer taining the meaning of any word used in the Act but I am referring to it only for the limited purpose of ascer time which taining the sam~ actuated and the extent and urgency of the evil which he soug11t remedy. Those arc all matters which, as alread v stated, must enter into ·restrictions which article 19 (5) reasonableness of the the exercise of" the right permits imposed on guaranteed by article 19 (!) (f). Further, to hav~ another significant fact which does not appear been pressed on the attention of the High Court. The the Legislature on the Bill had been 23rd March, 1949, and was referred to a select corn the 25th April, 1949, when the Bengal mittce. On \Vest Bengal Ordinance Legislature was not No. 1 of 1949 was passed. The two preambles to that Ordinance recited as follows : the conditions prevailing at judicial verdict as to the Bill to introduce the sponsor of introduced in session to be "\Vhereas it is expedient, pending legislation, of further stay of certain suits, proceedings and appeals :mce of the Act : to· provide the enactmen: temporarv in pursu And whereas the West Bengal Legislature is not in that circums it necessary for him to take the Governor session and tances exist which render in1mediate action ;" satisfied to he passed pend The fact the passing of this Bill and the preambles to the that an Ordinance had (I) [1953] S.C.R. I· , !ill • Tl~e State o TYtjtBen~11l v. Subodlz Gopal Rose and Others. f);Js ]. S.C.R. SUPREME COURT REPORTS 629 • which enlarges, as Further, that, m for leave to appeal u111loubtedly to the proviso the courts in which taking of immediate action. judgment delivered by the application subsequently made by indicate Orclinance then prevailing condi opinion of the authorities, tions disclosed a serious evil which urgently necessi- the High appears Court on this court that a number State of cases were pending before same question was involved. This · is also a circums tance which was not brought to the notice of the High judgment under appeal was pm Court before in the judgment under appeal I find nounce<l. Finally, the new section 3i reference it were, by way of compensation for the loss of the right of ejectment, the purchaser's right to claim enhancement of rent much beyond the very limited right of enhancement of rent which, under the to the fourth excepted old section, was confined only under-tenures. Then. there High Court, land values had gone up so high that auction-purchasers could now he found who, even with out the right to eject the under-tenants, would willing ly pay a sum much in excess of the arrears of Govern permanent settlement. The cumulative effect of foregoing facts which were not placed before the High Court much outweighs loss of the respondent, Subodh Gopal Bose, as pecuniary to eject under-tenants infliction of the loss of the right can only be restriction permitted by article 19(5) - to be imposed on the exer cise of the right guaranteed under article 19(1) (f). In reasons for which the High Court judgment the amending Act to be ultra vires declared section the Constitution are no longer tenable in view of the circumstances now before us which were not brought to the notice of the High Court and the decision of 'the High Court cannot, auction-purchaser and in revenue which· remains therefore, be sustained, the circumstances the consideration i of reasonable found by regarded constant the fact, a An alternative argument, however, has been raised respondent, Subodh learned advocate impugned section violates Gopal Bose, 630 SUPREME COURT REPORTS [1954] 1953 The State of West Bengal v. Suhodh Gopal Bost and Others. Das]. fundamental Constitution and is, right secured to him by article 31 (2) of the therefore, void under article 13(1). • The contention, shortly put, is that the right, conferred the under by the old section 37, is, by itself, tenures and to eject "property" and that as the new section 37 has away that property without having made any provi sion for compensation therefor the impugned section is unconstitutional the provisions of article 31(2). to avoid and annul the under-tenants it violates it received The Bill which eventually became the Bengal Land ('Vest Bengal Amendment) Act, 1950, Revenue Sales was introduced in the West Bengal Legislature on the 23rd March, 1949, and after having been passed by Legislature the assent of the Governor on the 15th March, 1950. The Bill was, therefore, pending in the West Bengal Legislature when the Constitution of India came into force and was passed into law after the date of the Constitution. It does not appear, how the Bill was reserved for the consideration ever, of the President or received his assent. Therefore, impugned law cannot claim the protection of article 31 ( 4) and, what is more, if it is such a law as is referred to in clause (2) of article 31, then, by virtue of clause (3), it cannot have any effect at all. The question, fore, is as to whether the impugned section is or is not such a law ·as to in article 31(2). The question requires, for a proper answer, a close scrutiny relevant articles of the Constitution bearing on it. the provisions of article 31 and other referred At the outset it is well to bear in mind the decision of this court in A. K. Gopalan's case('), explaining correlation between the provisions of sub-clauses (a) to (e) and (g) of clause (1) of article 19 and articles 20, 21 and 22 of the Constitution. Kania C. J., at page 101, the present Chief Justice at pages 191-192, my Lord Mahajan J., at page 229, Mukherjea J., at pages 255- 256 and I at pages 302-306 that· the validity of the Preventive Detention Act could not be judged by the provisions of article 19. The majority the view txpressed rJ) [1950] S.C.R. 88. 1953 T1" State of West Bengal v. Suhodh Gopal ·Bose and Ot!iers,. Das]. S.C.R. SUPREME COURT REPORTS 631 d the Bench took rights conferred the view that hy article 19(1) (a) to (e) and (g) could be enjoyed only the citizen was free and had the liberty of long as his person but lawfully the moment he was liberty under article 21 he <leprived of his personal ceased to have the rights guaranteed by article 19(1) (a) to (e) and (g). The result of this part of the deci sion in A. K. Gopalan' s case (1 ) was the later case of Ram Singh v. The State of Delhi('), by my Lord judgment that he delivered on behalf of himself, Kania C. J., and myself. Said his Lordship at pages 455-456 : the present Chief Justice summarised in the freedoms, "Although personal liberty has a content ciently comprehensive the freedoms enume to include rated in article 19 (1), and its deprivation would result in the extinction of those the Constitution liberties as distinct fundamental has treated these civil rights and made separate provisions in article 19 and articles 21 and 22 as to the limitations and conditions they could be taken away or subject to which alone abridged. The interpretation of articles and their correlation were elaborately dealt with by in Gopalan's case('). The question arose full court imposing the Act was a law whether section 3 of restrictions on "the right to move throughout the territory of India" guaranteed under article 19 ( 1) ( d) and, as such, was liable to be tested with reference to its reasonableness under clause (5) of that article, It was decided by a majority of 5 to 1 that a law which authorises deprivation of personal the purview of article 19 and its validity was within judged by the criteria indicated in that article not be but depended on its compliance with the requirements of articles 21 and 22, and as section 3 satisfied those requirements, it was constitutional." Mahajan J., who by a separate judgment dissented from the majority on another point, not material for our present purpose, said at page 467 : liberty did not freely "On the other points argued in the case I agree with judgment of Sastri J." (1) [1950] S.C.R. 88. (2) (1951] S.C.R. 451. 1953 Th• Slate of IVo: Bengal v. Sub11c.'h Gopal Bose "'nd Others· DaJ]• 632 SUPREME COURT REPORTS [1954} It must, the citizen therefore, be loses his capacity referred to in article 19 ( 1) to social control imposed on them by regar<led as settled that the freedom sub-clauses (a) to to a citizen of India while ( e) and (g) are guarantee<l freedoms, eve11 when they are he is a free man. These :ibsotute and unbridled so available, are, however, not in that reason licence but are subject able restrictions may be law as indicate<l in clauses (2) to (6) of article 19. But as soon lawfully deprived of his personal liberty as a result of <letention, punitive or preventive, several rights (a) to (e) an<l (g) of article 19 enumerated ( 1) and cannot complain of infraction of any of rights. The validity of the law which deprived a citizen of his personal inevitably sub-clauses mentioned destroys his above cannot be reasonableness (2) to ( 6) of article 19 but falls to laid down in clauses the provisions of articles 20, be determined according 21 and 22 of the Constitution. This, I apprehend, the result of the two decisions of this court referred above. liberty which judge<l by the test of in sub-clauses rights un<ler to exercise Such being the correct correlation between article 19· (1) sub-clauses (a) to (e) and (g) on the one hand and. article 21 on the other, the question necessarily arises the correlation between article 19 (1) (f) and article 31. Article 19 (1) (f) guarantees to a citizen, as one of his freedoms, the right to acquire, hold and dispose of property but reasonable restrictions may be imposed on the exercise of that the extent indicated in clause (5). Article 31, as its heading shows, guarantees "right is the extent .correlation between article 19 ( 1) ( £) read with article 19 (5) and article 31 ? If, as held by my Lord A. K. Gopqlan's case(') at page 191, sub-clauses (a) to (e) and (g) of article 19 (1) read with the relevant clauses (2) to whom the possession of these fundamental the substratum of personal freedom on secured retains the enjoyment of these rights necessarily which alone to all persons, citizens and non-citizens right to to property" as a fundamental therein mentioned. What, the citizen rights (6) "presuppose I ask myself, (!) [1950] S.C.R. 88. S.C.R. SUPREME COURT REPORTS 633 logically it must follow rests'', read with article 19 (5) must likewise presuppose the person to whom that fundamental anteed which alone that myself unable and so I said that article 19 (1) (£) is guar I to escape from logical conclusion in A. K. Gopalan's case at pages 304-305 : retains his property over or with respect right may be exercised. 1955 The Stat.of West Bengal v. Subotfh Gopat Bose and Othm. Das J. "But to hold suppose a person loses · his property by reason of its having been compulsorily acquired under article 31 he loses his right that property and that his fundamental right under sub cannot complain clause (f) of clause (1) of article 19 has been infringed. It follows that the rights enumerated in article 19 ( 1) the citizen has subsist while If his capacity to exercise them is gone, them. exercise by reason of lawful rights in sub-clauses (a) to (e) and (g), or by reason of a lawful compulsory acquisition with respect to the in sub-clause ( f), he ceases rights while his incapacity lasts." conviction with legal capacity to have those respect I reiterated the same opinion in my judgment in Chiranjitlal's case(' ). Nothing that I have heard on the present occasion has shaken the opinion I expressed in those cases as to the correlation of article 19 ( 1) ( £) read with article 31 of our 19 (5) and Constitution. article in any particular property but the right A suggestion was thrown out by my Lord in course of arguments, that article 19 (1) (£) was concerned only with the abstract right and capacity to acquire, hold and dispose of property and had no· reference or rela tion to any rights article 31 only was concerned with to a concrete property and there was no correlation between the two articles. The matter, however, was not argued by either side and I am not prepared to express any final opinion on it. For the purpose of this appeal I am that article 19 content to concrete relates property. to proceed on the to abstract right as well as to right footing (I) [1950] S.C.R. 869:at p. 919. 4-95 S.C.I./59 634 SUP~EME COURT REPORTS [1954] 1953 Tiu Statt of West Bengal v. Subedh Gopal Bose and Others. I now turn to article 31 which appears under the heading "right to Property". The clauses of article which are material for the purposes of determin ing the question in debate run as follows : "(l) No person shall be deprived of his property Das]. save by authority of law. law authorising undertaking, shall be (2) No property, movable or immovable, including any interest in, or · in any company owing, any com mercial or industrial possession of or acquired for public purposes under taking of such possession or such acquisition, unless the law provides for compen sation for the property taken possession of or acquired and either fixes the amount of the compensation, or the manner in specifies which, to be determined and given. the principles on which, and the compensation * * * * * * (S) Nothing in clause (2) shall 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 or penalty, or the purpose of imposing or levying any tax (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 the Dominion of India between the Government of or the Government of India and the Government of any other country, or otherwise, with respect to pro perty declared by law to be evacuee property.'' It is suggested two clauses are not mutually exclusive but must be together and they are only concerned with what has beea described as the State's power of eminent domain which, to Professor Willis, means the legal capacity according of sovereignty, or one of its take private property for a public use upon governmental organs, S.C.R. SUPREME COURT REPORTS 635 to show law, (2) insisted on that from the exercise of three pre-requisites which payment of just compensation. Reference is made to the works of eminent certain passages culled from the Dutch publicist and statesman ancient writers Hugo Grotius who the 17th century flourished the celebrated English jurist and William Blackstone who wrote his Commentaries round about 1769 and . from Judge Cooley's well known book on Constitu tional Limitations things as pre-requisites jurists have this power of eminent domain, ·namely, (I) the authority of the requirement of public use, and (3) the payment of just compen constitute sation. These limitations on the power of eminent domain are said · to have been epitomised to the Constitution clauses of of the United States of America. The contention that article 31 limitations on the power of eminent domain, namely, that clause (I) the necessity for legislative sanction as a announces the exercise of the power, pre-requisite for thus pro tecting all persons against expropriation by the State acting the Government, its executive organ, and that clause (2) reproduces the necessity of a pub concluded ·that limitations on ·the State's power of eminent domain are designed to pra te.ct a person against arbitrary deprivation of his property and in relation to his property. they constitute his fundamental and payment of compensation. the Fifth Amendment in 1791 in reproduces important through purpose It 1953 The State ef' West Bengal v. Subodh Goptil Bose and Others. Das J . • to me in all humility that proposition entire! y fallacious The proposition thus formulated is certainly attra favour with my learned ctive and, indeed, has to be open to certain colleagues but appears objections. I say method of approach and support of wrong. The steps in the argument seem to be (i) that limitations the power of eminent · domain and the thereon as explained by eminent porated in the Constitution of the United States, (ii) that clauses (1) and (2) of topic of article 31 are concerned with I consider line of reasoning the Fifth Amendment to jurists are 1953 The Slau of W<St Bmgal Vi Subodh Gopal Bo11 ar.d Others~ Das]. • 636 SUPREME COURT REPORTS [1954) 21 that, if this reproduced therefore, bear indeed we were asked limitations on line of reasoning amounts, eminent domain and (iii) therefore, clauses (1) and (2) of article 31 must be read as having reproduc the power of eminent the same in effect, to domain. This thing and then saying likening one thing with another that as that other such and such thing means thing must, same meaning-a method which has been deprecated by Lord Halsbury in Styles' case (1 ) . Further, reasoning line of as well were correct or permissible then we might have said, as to say, article constitutional limitations against deprivation of life and personal liberties "pro expression to be found in article 21 cedure established by law" the expression "due process of meant exactly what in the Fifth Amendment did. This law" occurring resolutely A. K. Gopalan's case the view report of that line of reasoning was not proper and was misleading. My Lord Justice at contention. After quoting the words of Madison about the great and essential rights of the people" my Lord concluded at page 199: definitely declined to do (supra). At page 108 of that case Kania C.J. expressed and that, therefore, the present Chief the American repelled 197 translated into positive these provisions "This has been the Indian Constitution, and I agree Part III of the high purpose and in construing spirit of the Preamble as well as the constitutional significance of a Declaration of Fundamental Rights should be borne is not should be stretched to square with this or that constitutional in disregard of the cardinal rule of interpreta theory tion of any enactment, constitutional or other, intendment should be col its spirit, no lected primarily words used". in mind. This, however, language of the provisions the natural meaning of than its After noticing the argument of learned counsel for the petitioner Mukherjea J. at page 266 et seq found (1) [1889] L.R. 14 A.C. 381. 1953 Tiu Stat• ~f W<ll Btnt•I v. SulJodh Gopal BOSI and Olh111. Dru]• S.C.R. SUPREME COURT REPORTS 637 introduce natural meaning life and personal interpreted by giving the American doctrine of it impossible If the language due process of law into our article 21. of our article 21 could not be stretched to square with the American due process clause so as to give effect the suggested enlargement of the scope of our fundamental liberties but to be their· ordinary language of article 31 should not be construed in the usual way so as to give effect to the plain intention of our Constitution-makers. the utmost humility the proper method of approach is to the golden rule of construction referred to in the judgment of my Lord quoted above and not to start off with any kind of assumption that our Con stitution must be regarded as having reproduced this or that doctrine. I cannot see why the words say with I to say that If it were correct the conclusion arrived at by (2) by itself would have sufficed, for Apart from the erroneous line of reasoning referred to above, following that reasoning appears to me to be open to serious object ions on merits also. two clauses, (1) and (2), of article 31 deal with the same topic of the State's power of eminent domain which is inhereIJt then, as I pointed in its sovereignty in Chiranjitlal's case(') at page out in my judgment 925, clause (1) must be held to be wholly redundant and clause necessity of a law is quite clearly implicit in clause (2) itself which alone would have served as a protection against State action through its executive organ, government. Another and more objection against reading both the clauses as dealing only with the same topic of eminent domain is, as ·pointea out by me that such con struction will place the deprivation of property other wise than by the taking of possession or acquisition of the pale of all constitutional protection. As it outside I said in detail, one can conceive of circumstances where the State, in exercise of deprive a person of his property without taking posses the meaning of sion of the State's police power, may have there and as I shall also do hereafter in Chiranjitlil's case it or acquiring it within (supra), serious •(I) [1950] S.C.R. 869. 1953 Tf..e Stat< of Wtsl Bengal v. SufJ.tfh Gopal Bos1 and Others. Das]. 638 SUPREME COURT REPORTS [1954] result of deal with the State is that the first argument, is quite untenable. Apart for us any protection against limitation on alSC> article 31 (2). This police power of inherent in the sovereignty of the one of the powers State. The suggestion two clauses of article 31 should be read as dealing only with eminent domain will, if accepted, lead us to hold that our Con the State's police power stitution has not dealt with ' to deprive a person of his property and has not pro the State by . vided the exercise of imposing any render power. The suggested construction will enunciation of our fundamental "Right to property" It has been urged incomplete. patently State's police power is · recognised and regulated by article 19 clauses (2) to ( 6) and article 31 (5) (b). I in detail hereafter that argument and show article 31, reading clauses (1) and (2) together will be to hold that our for us any protection Constitution has not provided the exercise of against police power either by the Legislature or by the executive. Such a conclusion I am not prepared to accept. Accordingly I thus explained what I conceived to be the true scope and effect of clauses (1) and (2) of article 31 in Chiranjit lal' s case (supra) at page 925, namely, that clause ( 1) deals with deprivation of property in exercise of police the restriction which our Con power and enunciates to be stitution-makers placed on the exercise of that power, namely, such power can be exercised only by authority of law and not by a mere executive fiat and that clause (2) the power of eminent deals with domain and places limitations on the exercise of that power. limitations which constitute our fundamental right against the State's power of eminent language used in article 31 (2) clearly domain. The the power of eminent indicates beyond doubt domain as adopted in our Constitution concerned that kind of deprivation of property which with only is brought about by the taking of possession or acquisi tion contemplated by that clause. I again adverted to in The State of Bihar v. Maharajadhiraja this matter thought necessary or sufficient the exercise of the State's It is \ S.C.R. SUPREME COURT REPORTS 639 law. This appears Kameshwar Singh of Darbhanga(' ). It is said that such instead of enunciating a construction of article 31(1) any fundamental right of the people at all will, on contrary, declare the fm\damental right of the Legisla to deprive a person of his property by merely to be a very enacting a superficial criticism which completely overlooks article 31(1), as far as it goes, does lay down a funda" mental right by imposing a limitation at least on limitation placed Gn executive power. executive fundamental right to property under article 31(1). I see no compel the views I ex ling or cogent pressed on this point cases. that constitutes our for changing judgments in those to me reason in my It is 1953 Thi State of West Bengal v. Subodh Gopal Bose and Others. Das]. freedom to make the State recognised rights but clauses (2) that have been taken to It is necessary, at this stage, the exercise of these seven to examine the several the correct other objections ness of the interpretation suggested by me. It is said that the State's police power in relation to the citizens' in article 19. the citizens of Clause ( 1) of that article secures India seven specified (6) permit imposing reasonable limitations on rights as that clauses (2) therein mentioned. The argument the police power of the State in to ( 6) recognise it to make laws imposing restrictions on they permit the seven rights of that they at the limitations same time regulate upon it by that the restrictions which may It is then pointed out be imposed must be reasonable. saved by the State's police power the police article 31 (5) (b) and it is concluded power having been recognised and provided for article 19 and article 31 (5) there is no necessity to read article 31(1) as concerned with the State's police I see no force or validity in the aforesaid power at all. objection. that power by placing the citizens and further requiring (b) I first deal witli the objection in so far as it is found the recognition of the State's police power in ed on (i) [1952] S.C.R. 889 at pp. 988-989. 1953 Tlr4 Stat• of Wist Bmgd v. Subodh Gopal Bos1 and Others. Das]. 640 SUPREME COURT REPORTS [1954] article 19. for the following reasons : I say that is no force in this objection reasonable them to the citizens of its legislative organ, for tli.e State is, by (a) article 19(1) enumerates. seven rights to freedom India. Clauses and guarantees (2) to (6) of that article recognise and regulate the State exercise of police power over those rights by through restrictions by clauses, permitted to impose that article 19 does law only. Therefore, it follows not give any protection executive government in respect of even those seven rights. The citizens, however, have protection against the executive as well as the Legislature under article 21 but that protection covers liberties the citizen's protection against only. Where, the exercise of police power by the executive over hi~ property? It in article 31(1) as construed by me. to the citizens against is nowhere except life and personal tl1en, rights by (b) Article 19 guarantees rights that article. He has, therefore, the seven rights of the the exercise citizens only and recognises and regulates of police power over those the legislative organ of the State. A non-citizen is entirely outside that article and consequently he has none of those and has no protection against the State to fall back upon article 21 and contended liberties in article 19(1) (a) including the six rights enunciated the exercise of to ( e) and (g) are protected against police power by its executive or the State through limb. But article 21, as already observed, legislative only protects him from deprivation of life and personal is the non-citizen's protection liberties. Where, against deprivation of his property by the exercise of police power by the executive government. It is no read in the way I have where unless article 31(1) suggested. that all his personal then, to make ( c) Finally, clauses (2) to ( 6) of article 19 authorise imposing reasonable "restric It is J. in A. K. Gopalan's case (supra) Faz! Ali dissenting the State tions" on the citizen's true that m rights under clause (1). the view judgment S.C.R. SUPREME COURT REPORTS 641 "restrictions" might cover tion, but none of the other members of 3c.cepted that position. Kania C. J. said at page 106 : the case of total depriva that Bench "Therefore, article 19 (5) cannot apply to a sub stantive law depriving a citizen of personal liberty. I am unable the word 'depri vation' scope "restriction" when :interpreting article 21". to accept includes within the contention My Lord the present Chief Justice expressed his views at p. 191 in the words following : 1953 T1" State of West Bengal v. Subodh Gopal .Bose and Others. Das]. ·are though imply, in the words 'restrictions' m sometimes used as the word seems to "The use of sub-clauses the context, the article are still the idea of 'restriction' and interchangeable restriction may reach a point where it may to deprivation. Read as a whole and setting among the group of prov1s10ns to Freedom', 'Right relating to my mind to presuppose the possession of these fundamental substratum of personal the enjoyment of these rights various rights guaranteed by capable of being exercised, and to exclude incarceration "deprivation' terms, as well amount viewed in its (articles 19-22) article 19 to whom -citizen rights secured retails freedom on which alone ·necessarily rests". The contrary view expressed by a Bench of Allahabad High Court was rejected by my Lord at the 'end of page 193 with the following remark : " ........ their major ·premise ·personal ing of article 19 is, in my judgment, erroneous". 'restriction' within liberty was a that deprivation of the mean Mahajan J. expressed ing passage at page 227 in his "Preventive detention freedom of the same view in the follow judgment in that case : is a negation locomotion ·of article 19(1) (d) but it .cannot be said that it merely Testricts it". in substance guaranteed Mukherjea J. said at page 256 : ........ and the purpose of article 19 is to indicate the limits within which the State could, by legislation, 1953 Tiu State of West Bengal v. Suhoah Gopal Bose and Others· Das]. 642 SUPREME COURT REPORTS [1954} impose 1+'Strictions on the exercise of these rights by individuals. The reasonableness or otherwise of legislation qn indeed be determined by the court the several clauses of article 19, is permissible with regard life and personal liberty". though no such review relating to deprivation of laid down in the extent in my opinion, His Lordship concluded thus at page 264 : "The result is that, the first con raised by Mr. Nambiar cannot succeed and it tention must be held that we are not entitled to examine the Preventive Deten ;easonableness or otherwise of tion Act and see whether it is within the permissible bounds specified in clause (5) of article 19". After discussing the matter at some length at pages 302-305 I concluded on page 306 : "In my question of detention and, cribes a applied by the court has no application at all". judgment article 19 has no bearing on the validity or otherwise of preventive that being so, clause (5) which pres to be defined and reasonableness test of is no reason substance the word that although A suggestion was made in A. K. Gopalan's case (supra) "restriction" occur ring in .clauses (2) to ( 6) could not, in its application to sub-clauses (a) to (e) and (g) be taken as extending to "deprivation '', to hold there is no compelling that the word "restriction" occurring in clause (5) may not in its application to sub-clause (f), cover "depri vation". There this contention. Clause (5) covers sub-clauses (d), (e) and (f) and surely one and the same word "restriction" used in one and the same clause (5) cannot have one meaning in its to sub-clauses (d) and (e) and a different ,application meaning and connotation to sub clause (f). Further, the reasons why, in A. K. Gopalan's that word was given a narrower meaning case (supra), to sub-clauses (a) to (e) and (g) apply in its application mutatis mutandis in to sub-clause (f) therefore, clear. read in correlation in A. K. Gopalan' s case (supra) that article 19 does not give any protection the decision of its application its application to article 31. this court It is, 1953 The State of West Bengal v. Suhodh Gopal Bose and Others .. Das]. .. ... S.C.R. SUPREME COURT REPORTS 643 including l.ife rights imposed on the the exercise of police power by the ambit or scope of limitation on agafr1st. deprivation of property as distinct from mere to property. For restnct10n protection against deprivation of and personal liberties freedom several in sub-clauses (a) to (e) and (g) of article 19 enunciated legislative or the executive organ of the State the citizen as well as the non-citizen will have to look to article 21. For of property by the deprivation protection against legislative or executive State action both the citizen If, and the non-citizen will have to rely on article 31. as I shall show presently, clause (5) (b) were inserted in article 31 ex abundanti cautela and not as a suh stantive provision defining police power or formulating any then the protection against deprivation of pro power, to be derived from only clauses ( 1) perty will have If, in such circumstances, both tho~e clauses and (2). are read in the way suggested by the respondent, Subodh Gopal Bose, namely, as dealing only with the topic of the State's power of eminent domain conclusion India neither a citizen nor a non-citizen has any constitutional protec tion against legislative or executive organ of other hand, if the construction suggested by me be adopted, everybody, citizen or non-citizen, will have, under article 31 (2), full protection against the exercise of the power of eminent domain by both the executive as well as Legislature and in addition to tl1at will also have protection against the exercise of police power over property by the executive. The preservation of this protection alone, even it as to my mind, a sufficiently cogent very meagre, the construction suggested by me reason for adopting tl1e other in preference ·,adopted, will not save even this meagre protection. the exercise of police power either by the State. On if some may regard construction which, remain no escape the Republic of learned counsel then there will is, The next objection to the conclusion arrived at by me is that police power of depriving a person of his property is amply provided for in article 31 (5) (b) and into article 31 (1). is not necessary to read ' 1953 Thi State of West Bengal Vo Subodh Gcpal Bose and Other Das]. • 644 SUPREME COURT REPORTS [1954] is said citizens' laws from the police power It will also appear that A perusal of clause (5) of article 31 which I have already quoted will at once show that clause the operation of clause (2) excepts certain the exception covers, only. laws . under sub-clause (b), only certain kinds of future Item (i) under sub-clause (b) comprises future imposing or levying any tax or penalty. Item (ii) under for the promotion of that sub-clause saves future laws public health or the prevention of danger to life or property. It that this clause (5) (b) (ii) saves to be made in exercise of the State's police power. the State's police power of The argument "restriction" on imposing acquire, hold and dispose of property is recognised and controlled by clause (5) of article 19 and that when to extend becomes necessary beyond "restrictions" inflict "deprivation" it can do so by the kind of law which is, of property (ii) of article 31, saved from the by clause (5) (b) operation of clause (2). It is pointed out that in matter of imposition of "restrictions" on the exercise to acquire, hold and dispose of property of the right is that the the police power the only reason imposed by law must be "restrictions" able as indicated in article 19 (5) but matter of "deprivation" of property by authority of law under article 31 the limitation on the police power law may be made is more stringent, . namely, that such only for the promotion of public health or the preven tion of danger clause (5) (b) (ii) and for no other purpose. The argu its simplicity the appearance of plausibility but cannot and has following reasons :- life or property as mentioned limitation on to be test of close scrutiny. I formulated is attractive lawyers classify that constitutional ( i) Every student of Constitutional is well the State's. three categories, namely, sovereign power of taxation, the power of eminent domain and the police power. These are distinct categories of sovereign powers with different connotations subserv If both ing different needs of the society and the State. 1953 The Stall of Wist Bengal" v. Subodh Gopal Bose and Others .. Das], S.C.R. SUPREME COURT REPORTS 645 Further, imposing for, ex hypothesi, is an attribute of sovereignty clauses (1) and (2) of article 31 deal with and i~pose the State's power of emment restrictions only on then there was no real necessity for exempting domain, the police by article 31 (5) (b) the taxation power or the power of eminent power from the operation of domain, first mentioned the power of eminent powers, being distinct from domain, did not and could not fall within therefore, needed no exemption. mentioned power and, Even a casual student of Constitutional law knows that money is one of the kinds of property which, it is said, cannot be taken in exercise of the State's power of eminent domain and that being so there could be no taxes from the necessity for exempting operation of article 31 (2) which embodies only the police doctrine of eminent domain. the power of taxation and the power of power, eminent domain, itself. It is, as Professor Willis calls it, "the offspring of political necessity". This legal capacity require• no specific inherent the United reservation. States the police therefore, no necessity power of the State. There was, the police power of our State by a for expressly saving then, was clause (5) constitutional provision. Why, inserted in article 31 at all ? The answer will (b) (ii) is extremely become obvious difficult to define precisely to private State's police power over or in property and some of the instances and forms of in relation to exercise of such polke power over or the exercise of the property may superficially resemble power of eminent domain. The conclusion, therefore, irresistible ·that although clause (5) (b) (ii) becomes was not strictly speaking necessary police power, nevertheless, our Constitution-makers, out of abundant caution and with a view to avoid any possible argument, thought fit to insert sub-clause (5) impossible to hold that the (b) (ii) in article 31. It is entire police power of the State to deprive a person of his property is contained in that sub-clause. in the Constitution of is no specific reservation of the ambit and scope of relation if it is remembered that it in every sovereign and for saving coercive Indeed, 1953 -3 The Slate of Jt'"est Bengal v. Subodh Gopal Bos1 and Others. Das]. 646 SUPREME COURT REPORTS [1954] (ii) According to the validity of those the Legislature by laying down any the power of the State to make certain laws the argument article 31 (5) (b) exercise of its power of taxation or its police power. that it does not give us any protec It will be noticed tion against laws. The acceptance of the that laws thus saved suggested construction will mean may be as archaic, offensive and unreasonable as legislature may choose long as they relate that sub-clause. If our sense of the sanctity of private property is not shocked at the prospect of leaving our property at the unfettered mercy of the Legislature in clause (5) (b) (ii), I do not see of the kind specified suggested by me should be the ground that it will give a carte rejected only on to make any law it pleases blanche to the Legislature for the deprivation of property in exercise of police power. the subjects referred to them so the construction in respect of to make intended the power of the exercise of (iii) Article 31 (5) there was no necessity, the executive with respect to be a protection against then, for the Constitution article 265 providing (b) gives us no protection against to the exercise of these powers. Take article 31 (5) (b) (i) first. That it was not executive taxation cannot for· a moment be doubted, for it were so inserting intended, that no taxes shall be levied or collected except by authority of law, which clearly means that the executive cannot, on its own authority, is, therefore, quite plain that article 31 (5) (b) (i) was not designed to give any protection against the executive the matter of the exercise of the power of taxation and that our Constitution-makers, precisely that such reason, considered protection should be given expressly and, therefore, inserted article 265. Likewise, article 31 (5) (b) (ii) saves certain in terms give us any the exercise of police power by the protection against executive. Where, is our protection against deprivation of property by the exercise of police power It is nowhere to be the executive Government? levy or collect any laws and does not it was necessary then, tax. It S.C.R. SUPREME COURT REPORTS 647 fundamental to formulate a the executive arm of in article 31 ( 1). This, found in our Constitution except to my mind, clearly .indicates that article 31(1) was designed right against deprivation of property by the exercise of .Police power the State. The protection the exercise of the power of eminent domain against to be requirement of a law which alone may authorise the taking of possession or the acquisition of the property which, as will be explained in article 31 (2) itself and it is, to have therefore, not necessary recourse to article 31(1) to secure that protection. the executive government is implicit found in later, 1953 The Stat1 of West Bengal v. Subodh Gopal Bose and Others. Das]. inelastic (iv) To say that power by laws authorising the entire police power of the State to deprive a person of his property is to be found onlyinarticle 31(5)(b)(ii) willbe to confine theexer the Legislature within a very cise of narrow and limit, namely, only promotion of public health or the prevention of danger to life or property. On the assumption that article 31 (5) (b) (ii) is concerned with saving the police power it the destruction of may cover rotten or adulterated foodstuff or the pulling down of a dangerous dilapidated building or the demolition of it is a building to prevent fire from spreading. But quite easy to contemplate laws which do not fall with in article 31 (5) (b) (ii) but are, nevertheless, made un the State's police power. mistakably Consider the seizure and destruction of, say, obscene pictures or blasphemous literature. Such the pro motion or protection of public morality. Nobody can for a moment think of contending that such law will be if it does not provide for compensation and yet that will be the result if we are to accept the suggest for such a law made ed construction, is obviously not covered by article 31 public morality (5) (b) (ii) and will, according to such construction, be hit by article 31(2). A construction which the State to buy the astounding result of compelling up obscene pictures and blasphemous literature desires to preserve public morality cannot merit serious consideration and must. be discarded at once. Take the case of a law authorising law is clearly necessary for in exercise of for protecting · 953 The State of West Bengal v. Subodh Gopal Bost and Others. Das J• 648 SUPREME COURT REPORTS [19541 is not a law for the banks of property the full repayment of deposits in case any such bank becomes the case of a law providing for the compulsory con· tribution by all banks based upon the average daily the purpose of creating a guarantee fund deposits for to secure to all deposi insolvent and is ordered to be wound up. This law quite clearly deprives the shape of their respective contributions and it is not covered by clause (5) (b) (i) as it cannot be said to impose a tax or a penalty and does not fall within (5) (b) (ii) either, for the promotion of public health or for the prevention of danger to life or property. This thus outside clause (5) (b) cannot, accord law being ing to the suggested construction be supported as an instance of exercise of police power for, ex hypothesi, the entire police power with regard to deprivation of property is contained in clause (5) (b) and consequently law I have mentioned will not be protected from the operation of article 31 (2) and must be void for not providing any compensation. Yet the United States where so much is made of the sanctity of pri vate property and from where we are prone to draw inspiration these matters such a law has been up held as .constitutional, as an instance of a valid exer cise of the State's police power "which extends to all the great public needs." [See N able State Bank v. Haskell(')]. Again, suppose there is a labour dispute between, say, a tramway company and its workers and the running of the tram cars is stopped. A law which in such circumstances authorises possession of the tram depot and run the tram cars by the military or other personnel during such emergency for the convenience of the travelling public is not with in clause (5)(b)(ii) and on this construction will be void if it does not provide for compensation to the tramway company. On the suggested construction pushed to its logical conclusion it will not be possible in future to impose any social control on the profiteers or black marketeers, for a law controlling and fixing prices of essential supplies will always deprive them of property of the value the difference between to be measured by the State to (I) 219 U.S. 104. S.C.R. SUPREME COURT REPORTS 649 the controlled price. The the blackmarket price and ,construction may even make it difficult to suggested support any future law containing provisions similar to those · in the procedure codes or other laws not strict ly falling within the clause (5)(b)(ii) but authorising the seizure of books, documents or other property or to take the appointment of a receiver or sequestrator there will possession of property, for It is unnecessary be a "deprivation" of property. instances I have multiply instances. The several given above appear to furnish ample justifica to me tion for rejecting a construction which may make for the State to undertake beneficial legisla impossible invalidate laws of the kind I have mentioned. to promote social interest and may in all such cases 1953 The State of West Bengal v. Su/Jodh Gopal Bose and Others. Das]. for othe1wise it was contemplated thus saved would involve (v) Article 31(5)(b)(ii) saves from the operation of clause (2) laws to be made in future for the promotion of public health or the prevention of danger to life or property. Obviously the taking of possession or acquisition of private property, for the exemption at all. Take would be no necessity the case of a law authorising the opening out of a con gested part of a town and the acquisition of land for the laying out of a public park for affording fresh air and other health amenities the public. Consider the case of a law authorising the clearing up of slums and the closing down of putrid and unhealthy surface drains and acquisition of land for broadening the lanes thereunder. One so as may also refer the acquisition of the erection of a hospital for patients suffer land for ing from infectious diseases, e.g., plague, small-pox and cholera. All ,eome under the heading the prevention of of promotion of public health or danger to life. According the suggested construc tion the acquisition of property authorised by each of these laws will be exempt from payment of compensa tion to the owner, for these laws are, by clause (5) (b) (ii) exempted from article 31(2). And yet acquisition of land for such public purposes is precisely the kind of acquisition which on payment of is always made lay underground sewers to a law authorising laws will 5-95 S.C.T./59 1953 The State of Wtst Bengal v. Suhodh Gopal Bos~ and Others. - ] Das]· 650 SUPREME COURT REPORTS [1954] compensation under the Land Acquisition Act 1894. A construction which takes a law made really and essen tially in exercise of the power of eminent domain out of article 31 (2) cannot readily be accepted as cogent or correct. imperatively necessary. (vi) The complexities of modern States constant ly give rise to· conflicts between opposing social inte to visualise cir.cumstances when is easy rest and it much wider social control legislation than is envisaged referred to in article 31 (5) (b) or recognised in the laws will be Indeed, as Professor Willoughby states in his Constitutional Law of the United States, Vol. III, p. 1774, "the police power knows no definite to every possible phase of what to be the public wel the Courts deem language used by Holmes J. in Noble In fare". State Bank v. Haskell (supra), "it may be said in a general way that the police power extends to all the great public needs". Court said of the police power : In Eubank v. Richmond~ 1 limit. It extends ) "It extends regulation which the public health, morals, and safety, but to the public convenience or the essential of always the powers of govern promote those which promote general prosperity ...... It is powers, one of ment." the least !imitable of times most ms1stent, the most And all the more will such wide police powers be in a State which, like our own, aims at being required a welfare State governed by the directive principles of to be found in Chapter IV of State policy such as are the State's police our Constitution. To so confine power as suggested by learned advocate for the re• to bring about social stagnation and pondent will be the progress of our State. There is thereby nothing in the language of our Constitution which com In my judg pels us to adopt ment a construction which is calculated I feel sure, undesirable result I have mentioned must, he rejected. such a construction. to produce to retard (1) 226 U.S. 137. !953 Thi Stall of West Bengal v. Subodla Gopal Bose and Others. Das]. S.C.R. SUPREME COURT REPORTS 651 The last objection to reading article 31 ( 1) as the right against depriva enunciation of the fundamental the exercise of police power and tion of property by reading article 31(2) as laying down limitations on State's power of eminent domain is that so read article 31 will, in reality, afford no effective protection at all, for the State will always exercise its police power under article 31 (1) and deprive a person of his property without any compensation by the simple device of making a law and will never exer.cise its power of eminent domain under article 31(2). Where, then, it is asked, the State with respect to our property ? The objection thus formulated over the nature and purpose of the two powers which I shall presently discuss and explain and following reasons : is not otherwise well founded for is our protection against the difference between J. (1) It that article 31 (1) as is incorrect to say construed by me gives no protection at all. It certain ly gives protection against deprivation of property by executive fiat just as did that part of the famous 29th Clause of the Magna Charta which proclaimed that no free person should be dispossessed of any free tene ment of his except by the law of the land. As pointed in Joseph Hurtado v. People of out by Mathews California('), by the 29th Clause of the Magna Charta · the English Barons were not providing for security against ·their own body or in favour of the commons by limiting the power of Parliament but were protect ing themselves against oppression and usurpation of the King's prerogatives. that clause of the Magna Charta was not designed as a protection against Parliament at all and indeed did not purport to formulate any limitation on the State's power of eminent domain but was only intended to be a protec tion against is unmistakably highest executive, the King. There a familiar ring in the langauge of our article 31 (1) echoing the sound of the language of the 29th Clause the English Barons had of that great charter which function wrested from their King. The purpose and the exercise of police power by In other words, (I) (1883) IO U.S. 516 at p. 531. 1953 The State of West Bengal v. Suhodh Gopal Bose and Othtrs. Das]. 652 SUPREME COURT REPORTS [19541 the executive of our article 31(1), as I apprehend it, are the same as those of the Magna Charta. Our Constitution has. given us ample protection against relation to all the three sovereign powers of the State. the executive cannot, on its own authority, and Thus without the sanction of a law deprive any person of his life or personal liberty by reason of article 21 or of his property because of article 31(1) or take possession of or acquire private property under article 31 (2) or impose any tax under article 265. Our Constitution makers evidently considered protection against in exercise of police power or deprivation of property the power of eminent domain by the executive to be of greater importance the protection against deprivation of property brought about by the exercise found a place for article 31(1) and (2) set out in Part III dealing with fundamental rights while they placed the last mention ed protection to be found in Part XII in article 265 dealing with finance etc. So with regard three sovereign powers we have complete protection against the executive organ of the State. first mentioned protection the power of taxation by the executive, for to all it must do so upon (2) It is said we have no protection against legisla respect of our property. This com tyranny plaint obviously is not well founded, for our Constitu tion has given us some measure of protection against in respect of our property. ThHs if the legislature State exercises its power of eminent domain by taking possession of or acquiring private property of any three conditions person prescribed by article 31 (2). There is no shorter cut in India such a case. Apart from have further protection respect of their right to acquire, hold and dispose of property. This article 19(1) (f). The Constitution, however, recognises the State has police power by clause (5) in the interest of the general public restrict or for_ interests of any Scheduled tribe but prescribes a limitation on this police power imposed by the restrictions the right the protection of the the citizens of against is guaranteed legislature requiring to be them by • 1953 The State of Wl'st Bengal v. Subodh Gopal BoJt and Others• Das]. :S.C.R. SUPREME COURT REPORTS 653 legislature the contrary, the validity of the construction suggested this, what, law must· be reasonable. This the citizens' fundamental right against :police power by under article 19 (1) (f) whilst .and enjoyment of this right. (3) It is then urged requirement constitutes the exercise of the legislature in respect of his right in possession they are laws from article 31(2), that the police power but does not that our Constitution, accordnig to my' construction of it, does not give us any protec in the matter of depriva legislature tion against tion of property in exercise of the State's police power. This is no ground for rejecting my construction, for, is exactly the same, for article 31 (5) (b) only position ~aves certain to say, formulate recognises any test for determining legislature may which may be as unreasonable as I ask, make them. Apart from is our protection against the matter of the exercise of the power deprivation of property by of taxation ? None whatever. By exercising its power the State may deprive us, citizen of taxation by law . of almost sixteen annas in the rupee of ·or non-citizen I next ask, is the protection which -0ur income. What, to any person against our Constitution gives legislature . in the matter of deprivation even of life or ·personal liberty ? None, except requirement of article 21, namely, a procedure to be established by the · legisl~ture · · itself and a skeleton procedure pres In A. K. Gopalan'i case (supra), <:ribed. in article 22. the epigram notwithstanding reference made matic observation of Bronson J. in Taylor v. Porte(') the Cons to the effect latter titution speaking could not infringe our right unless it chose to do so, majority of this Court declined to question the wisdom of the Constitution or to language of article 21 so as its own notions of what the ambit of the right. should be but :felt bound the plain words of the COn~titution. (See Kania C. J, at page 11, Mukher'. jea J. at page 277 arid my judgment at page 321). If, that it sounded very much to give effect legislature to square it with stretch policy (I) 4 Hill 140. 1953 T~e Slate of West Bengal v. Suilodh Gopal Bos., anti Othtrs. Das]· 654 SUPREME COURT REPORTS [195'1} legislature least with respect the exercise of the executive but none whatever against in the matter of deprivation of property by therefore, the exercise of the State's power of taxation our Constitution has only given us protection by article 265 against legislature and if, in the matter of deprivation of our life and personal liberty our Constitution has given us no better protection against requirement of a procedure to be established by the legislature itself and the skeleton procedure prescribed that our Constitution has, by article 22, and seeking by article 31(2), given us protection against lature at power of eminent domain, what there . to complain of if, in the matter of deprivation of property by the exercise of the State's police power, our Constitution has, by article 31 (1), given us protection only against legislature ? What the executive but none against the legisla is abnormal if our Constitution has trusted ture, as the people of Great Britain have Parliament ? Right to life and personal liberty and the right to private property still exist in Great Britain in spite of the supremacy of Parliament. Why should we assume or apprehend that our Parliament or State legislatures should act like mad men and deprive us of our property without any rhyme or reason ? After all our executive gevernment legislature and legislature to the in occasional legislature people. Even vagaries, we have to put up with it for the time being. is the price we must pay for democracy. But the That apprehension of such vagaries can be no justification language of for stretching Constitution should be. To do so to interpret is not to make a new Constitution by the Constitution but the people of India have unmaking function of the court. the Constitution, properly construed according to the cardinal rules of interpreta to disclose any defect or lacuna tion, appears to some the appeal must be to the authority competent amend the Constitution and not to the court. to themselves. That, I apprehend, If responsible is answerable indulges into line with our notion of what an the Constitution the one which if the is not trusted 1935 The Stal1 of JV' est_ BetJgal V• Subodh Gopal BoJe and Otherr. Dai]· S.C.R. SUPREME COURT REPORTS 655 cogent interest prevailed the 16th ii1dividual interest in individual liberty or property than by It is futile sanctity of individual to wishfully ( 4) Further, there may be quite and compel reason why our Constitution , does not provide for any protection against in the matter of the. legislature deprivation of property otherwise taking of possession or acquisition of it. to cling to our notions of absolute liberty or private property and that our Constitution-makers have enshrined in our COnstitu tion the notions of individual liberty and private pro century when Hugo Grotius flourished or the 18th century when Blackstone wrote his Commentaries and when Federal Constitution States of the United America was framed. We must ·reconcile ourselves to the plain truth that emphasis has now unmistakably shifted from the communitv. We the avowed purpose of our Con cannot overlook stitution is to set up a welfare State by subordinating the social the larger social the com the police power of the munity. As already observed, State is "the most essential of powers, at times most insistent, and always one of the least !imitable powers panding and are' too numerous to enumerate or even to anticipate and, it is not possible to cir cumscribe limits of social control to be exercised by the State or adopt a construction which will confine it within the narrow limits of article 31 (5) (b) (ii). It to decide when and how must be left and to what extent this social con trol. Our Constitution has not the responsibility of depriving a person of his property, whether in exercise of the power of eminent to the will or caprice domain or of the police power, legisla of the executive but has In ture. of property ,9therwise acquisition of the meaning of article 31 (2) our Constitution has legislature and has not though~ 'fit to impose any limitation on the State's police power over lature's exercise . of the matter than. by the taking of possession or by the government". Social left it to it should exercise in the rights of to the State trusted our thought fit that of the deprivation it within therefore,. interests it be 1953 The State of West Bengal v. Subodh Gopal Bost and Others. Das]· 656 SUPREME COURT REPORTS [1954] private property. Our protection against tyranny, intelligent assert itself. legislative in a free and opinion which must eventually lies, in ultimate analysis, if any, public It is, insists imposed It fundamental the objections I have arrived at, the protection granted the provisions of clause (2). As Having dealt with the correlation between clauses (1) and (2) of article 31 as I apprehend it and having considered and rejected the con clusions I proceed now to examine and analyse I ex plained in my judgment in the Darbhan ga case (supra) at pp. 989-990, article 31 (2) has three con ditions on the exercise of the State's power of eminent domain over private property and limitations to the owner of the constitute property as his right. this sovereign power may be exercised if it is authorised by a law. limb of executive power on the sanc its own authority and without tion of law. The taking of possession or acquisition must be for a public purpose which implies that this power cannot be exercised except for implementing a public purpose. It cannot be exercised for a private purpose. What is a pnblic purpose has been elabora tely dealt with that case and need not be dis law authorising cussed• over again here. Finally, . the the taking of possession or acquisition of the property Compensation, therefore, the State takes posses then, of or acquires private property. What, is the meaning of the words "taken possession of or acquired" and their grammatical variations as used in article 31 (2) ? therefore, clear that exercise is payable only . when the State cannot compensation. provide It is pointed out that the last clause of the Fifth Amendment which deals with eminent domain uses the word "taken" and it that as our article 31 (2) deals with the same topic of eminent domain that our article 31 (2) the American constitutional limita therefore, "taken possession of or acquired" used in our article 31 (2) it will be reasonab1e reproduces that, expression suggested to hold 1953 TM Stale of West' Bengal v. Subodh Gopal Bost' and Others. Das]. :S.C.R. SUPREME COURT REPORTS 657 ·of Judges rule of to ascertain ignore relating thing. The cardinal this construction and their Fifth Amendment. the qualities of the other thing the United States must be read as having the same meaning which has been attributed by the Supreme Court of to the word "taken" I am quite occurring line of <inable . to accept reasoning on which it is founded. In the first place, I . deprecate line of reasoning which starts by thing with another and then ends by likening one to the first imputing mentioned interpretation the meaning and effect of an enactment, ·is the words used constitutional or otherwise, lherein. If the words used have acquired a technical that meaning must be given ·or special meaning, ·them. To say the expression "taken possession" "Of or acquired" must be read as "taken" and given the same wide meaning as the American courts have the entire _given to the word "taken" to com historical background of pulsory acquisition of private property by the State. less our the English Under modem laws are founded, the term "acquisition" has a special meaning. transfer title, voluntary or involuntary. When the acquisi ·of the State ·is effected by agreement after tion by negotiation transferring the' the State. Even when title from is effected by the coercive the acquisition by idea of process of exercising its sovereign power _purchase is a vest the State by operation of law. ing of the property in Acquisition' of private property by the State under faw, therefore, connotes the concept of a pur English involves a '-chase, voluntary transfer of State or a the State acquires the compulsory acquisition India, the property. 'Of private ·property was introduced by Bengal Regulation I of 1824. Since then we have had no less than seven Acts dealing with the compulsory acquisition the State, namely, Act I of of private property by 1850, Act XLII of 1850, Act XX of 1852, Act I of the entire third party for whom involuntary, title from the owner there is a regular conveyance is nevertheless present, for the vendor the State law, on which more or the idea of It connotes In 1953 The State of WtslB!cngal v. Subodh Gopal Bose atuf Others, DtJJ ]. 658 SUPREME COURT REPORTS [1954] the State. This means the State. The word "acquisition'', 1854, Act XXII of 1863, Act X of 1870 and lastly the· present Land Acquisition Act, Act I of 1894. Each. for the vesting of the acquired. of these Acts provides the owner property title passes, by operation of law,. is divested and his therefore, has it were, a word of art having a long become, as transfer accepted title. correct principles of the· grammatical variations word "acquisition" and therefore,. J. respectfully agree with what Mukherjea Chiranjit Lat's case (supra) at page 902, namely: legislative meaning It will be quite wrong, according to interpretation, not to give and special meaning implying technical I, implies acquiring enjoyment entire former. pass on acquisition the Constitution "It cannot be disputed the expropriated owner, whatever rights which were vested in In that acquisition means. nature or extent of that title might be. The entire bundle the original holder· the acquirer ing nothing on the other hand, remains in the original holder, from possession or Article 31 (2) of though of compensation holder of word "acquisition" appears only mean and refer interest of and . .............. " It follows taking possession,. to the property admittedly though he is excluded' property ... itself makes a. property for a public purpose,. the same footing authorising either · for payment the displaced or expropriated· the context in which the· it can the entire ' the sense these acts must make distinction between taking possession of it the property. In from what has been stated above it places both of them on the previous holder by in article 31 (2), to acquisition of acqms1t10n of transfer of legislation provision that a the word "acquired" used acquired and "taken" as used stitution of the United States. cannot be that· in article 31 (2) must be that word has. read as synonymous with the Fifth Amendment to the Con-. the special meaning which 1953 Tht Stale of West Bengal V' Subodh GopaI Bose and Others~ Das]. S.C.R. SUPREME COURT REPORTS 659 It is in America is understood that any rate then suggested the ownership of the property was not It was tangible or in order to be a "taken" intangible, was made up of the expression ~'taken : possession of" should be read in the sense which the word "taken" in the American the. word "taken" has law. But even interpreted in the same way. The not . always been old ~iew was must be either an actual taking of physical property or '1 physical occupancy of some physical property. This view was, however, regarded as too narrow· and mechanical. thirrg, immunities concerning rights, powers, privileges and the thing thing. and that itself but consisted of these rights, powers, privileges .It was, therefore, concluded that there and immunities. must be ·a "taking" whenever there was any m1ury to than by the police power or tax~­ property otherwise individual, would be tion which, if done by a private as a tort; _in other words actionable it must be there would be a "taking" whenever any immunities mak of the rights, powers, privileges or the ownership was ing up the owner. Indeed, the word "taken" this wide was facilitated by in order · to avoid the old, narrow view of the meaning of that word, many of the States so amended their Constitutions as to require compensation for property "damaged, ed or destroyed" for a public use. (See Professor Willis' Constitutional Law, pp. 820-821). Our Constitution makers were well aware of the very wide meaning to the word "taken" by the American eventually. given courts. They did not, ·however, use the word "taken" in article _31 (2) which they would surely have done if they intended to reproduce the wide American concept · on Our contrary, . deliberately the narrower the words "taken view· point and accordingly used possession of" · in order they required compensation to be paid only when th_ere was an actual taking of the property out of the posses sion of the owner or possessor into · the . possession . of the manner of i}ie State or Constitution-makers, to adopt interpretation of the fact its · nominee. Of· course it quite clear taken from to make "taking". that, 1953 The State of WeJt Bengal v. Subodh Gopal .Bose and Ot!t.tts. Da5"]. 660 SUPREME COURT REPORTS [1954) taking possession must depend on property ignore permissible the actual words used in our Constitution. it is not the historical background and itself. I repeat with humility the nature of retort they use to convey in clause (2) and understood, expression "taken It is finally said in clause (1) and why did that both clauses (1) and (2) of article 31 deal with topic of eminent domain and, therefore, possession of or the same meaning acquired" occurring in clause (2) has which the word "deprived" used (1) has. in clause In other words, both the clauses are concerned with deprivation of property and there is no reason to think the expression "taken possession of or acquired" to indicate any particular kind was used or shade of deprivation. The obvious that at once comes to one's mind is that if it were intended by o,µr Constitution-makers same general idea 0£ deprivation of property by whatever means or mode it was brought about why did they use the word "deprived" clause (2) a different expression which, as commonly connotes a much narrower meaning ? It would have been quite easy to frame clause (2) by using the word "deprived" instead of possession of or acquired". As our Constitution-makers used different expression> in the two clauses it must be held that they had done' so for a very definite purpose and that purpose could be nothing else _ but to provide only a particular kind of deprivation specifically men tioned and not for any and every kind of deprivation. In this connection reference may be made to Entry 33 List I, Entry 36 in List II and Entry 42 in List III of the Seventh Schedule. The words used in those entries are "acquisition or requisitioning" or their gramma tical variations. The legislative power being confined it will not be only to "acquisition or requisitioning" 1101d unreasonable that "taking of possession" to in article 31 (2) is in the nature of "requisi referred tioning". the Government of In section 299 (2) of India Act the words "taking of possession" did not they occur in any of the legislative lists occur ·'nor did they have in the Seventh Schedule to that Act, but expression "taken for compensation 1953 The Stale of We1t Bengal v. Subodh Gopal Bose and Others .. Das], • S.C.R. SUPREME COURT REPORTS 661 acquired" the word requisitioning". To to matters which are beyond in article 31 (2) and m the three been introduced "requisitioning" entries mentioned above If the word "acquisition". has been added after occurring "taken possession article 31 · (2) be given than what is .a meaning wider their varia requisitioned" or meant . by ''acquired or tions used in the entries to saying then it will amount that article 31 (2) even contemplates a law with . the legislative respect powers conferred on Parliament and the State Legis latures, for they can only make a law with respect to "acquisition it is pointed out that Parliament under the reasoning Union List has the residuary power of legislation and, therefore, in giving a wider mean- of or It will then amount to giving one and the acquired". same expression application to a the State Legislature "taken possession of or acquired" must perforce mean "requisitioned" or "acquired" whereas cation to a law made by Parliament it will have a much wider meaning. This is opposed to the cardinal rules of interpretation. Therefore, "taken possession of or acquired" should be read as indicative of the concept of "requisition or acquisition". different meanings. Thus law made by there is no difficulty expression "taken possession counter A further question, however, arises at this stage and it may be now considered. Does every taking of a its nominee the custody of the State or necessarily mean the taking of possession of that thing the meaning of article 31 (2) so as to call for within compensation ? The exercise of police power in rela in the extinc tion to property may conceivably result tion or destruction of the State the property or its control. Take the case of taking the law authorising the municipal bailiff to seize rotten vegetables or adulterated foodstuffs and destroy or to enter upon the property of a private owner to the dilapidated structure. Consider pull down the men of the fire brigade to go upon the authorising it to prevent property of a private owner and demolish the houses beyond or on the the fire from spreading the property .953 T/ieStatf! of iVeJt B:ngal v. Subod!i Gopal Bose and Others. Das]. 662 SUPREME COURT REPORTS [1954] It is a in each of that any of the above law which authorises other side of that house. Take the case of the law authorising the seizure and destruction of property for the protection of public morality. Although in none is any acquisition of property of the above cases involving a transfer of title, above cases a "taking of possession" and destruction of property by the State by authority of law and yet. laws authorise nobody will -say the "taking of possession" of the property within the meaning of article 31 (2) so that if such law does not prm·ide for compensation the law will be unconsti the case of the Court of tutional and void. Take Wards Act. the State to take possession of the estate of a disqualified proprietor and to manage it for him. The State only manages the estate on behalf and for the benefit of the disquali fied proprietor. The disqualified proprietor does not the State or any State official to manage his appoint estate and he cannot dismiss or discharge the manager the State. The possession of the manager appointed by can hardly, possession of the disqualified proprietor. The disquali fied proprietor in a sense, deprived of the is, the estates possession of his estate and the State thing may be said of the in its possession. The same Lunacy Act. There is no transfer of title to the State and, therefore, is no acquisition of property by the State. This law, however, takes the property out is adjudged a lunatic. But nobody will say that the Court of Wards Act or the Lunacy Act calls for compensation. the possession of the owner who in such a situation, be described therefore, The learned Attorney-General has also drawn our to statutes, namely, Act XLVII of 1950 (The attention the 20th Insurance (Amendment) Act, 1950) passed on May, 1950, and which has added several sections to the Insurance Act, 1938, Act LI of 1951 (Railway Com panies (Emergency Provisions) Act, 1951), passed on the 14th September, 1951, and Act LXV of 1951 (Development and Regulation) Act, 1951) (Industries in support of his enacted on the 30th October, 1951, contention. He points out laws is strictly speaking outside article 31 (5) (b) and that the that each of those 1953 The Stale of West Bengal v, Subodh GopaJ Bose and Othu1. Das]. S.C.R. SUPREME COURT REPORTS 663 taking of possession result of our holding those Acts falls within article 31 (2) so authorised by imposi as to call for compensation will be to prevent tion of social control so urgently necessary interests of the society. His larger protection of the that the taking of possession authorised by argument is three Acts falls within article 31 (2) and none of these the exercise of the State's police power. only illustrates As all the three Acts were passed after the Constitution they may be challenged in future an argument founded on them will really be begging the question in debate before us. I, therefore, prefer the Attorney-General's contention and pass on and not to base my decision on considera tion of any of those Acts. into force and as to note It follows, laws referred that none of laws does not amount is the result of therefore, it is fairly clear from Confining myself then to t~e illustrations given by the foregoing discus me I think to above by me authorise any "acquisition" · of property them does explained • above and although each of authorise a sort of taking of possession of the property yet nobody can contend the taking of possession so authorised by them falls within article 31 (2). In the taking of possession authorise& by other words, the exercise of the power of eminent domain but exercise of police power. taking of fall within article 31 (2). What, for determining whether a taking of possession authorised by a parti cular law is a taking of possession in exercise of power of eminent domain or is a taking of possession I have already in exercise of the State's police power. the nature of the State's police power and referred to quoted the State's police power extends not only to regulations which promote public health, morals and safety but to the public convenience or the those which promote to private pro general prosperity. perty it, in some measure, resembles the exercise of the power of eminent domain. Thus the police power is exercised in the interest of the community and the power from some American decisions possession does not In its application is the test showing then, 1953 The State of West Bengal v. Subodh Got-al Brue and Others. Das]. 664 SUPREME COURT REPORTS [1954J restrained rights as in both cases takes property the property or other is exercised to implement a public of eminent domain there is a taking of posses purpose and sion of private property. There is, however, a mark two sove ed distinction between the exercise of these to Professor Willis at page reign powers. According 717 eminent domain for use by the the benefit of the public, while the police public or for power prevents people from so using their own pro perty as to injure others. The fundamental principle the exercise of police power is is held to justify that no one shall use his property or exercise a11y of to interfere with or injuriously affect legal rights of others. (See Willoughby, Vol. III, p. 1775). The primary purpose of police power is protection or prevention so exercising that persons may be rights of° property, contract or conduct their private the equal rights of others or to prejudice as to infringe the interests of the community. (Willoughby, Vol. III, certain the State p. 1783). When public purpose needs fulfilment and then in order the State takes posses implement that public purpose its own account after sion of private property on acquiring it and having the State itself uses taken possession of the property or utilises it over to a third for implementing that public purpose party to do which the State has taken upon itself to serve and for the property was taken possession of or acquired the State to have exercised its power of eminent domain. This power can only be exercised under a and that law must provide for compensation. The point to note the public purpose is one is that in such a case the State has set out to fulfil as its own obliga tion and the State takes possession on its own account to discharge its own obligation. In police power the State destroys or extinguishes or takes possession of in order to prevent the owner from indulging property inflicting injury in anti-social upon the legitimate ·community either by using his property in a manner he should not do or by omitting to use it in a manner interests of other members of it or even without acquiring the property or makes activities or otherwise that a is said 1953 The Stal• of West Benga! v. Subodh Gopal BoJe atid Others. S.C.R. SUPREME COURT REPORTS 665 inflexible law falls attempting In view of to prevent an injury takes possession and assumes the property not on In such a case. the State steps in and he should do. destroys or extinguishes only social interest or its own ac superintendence of count for implementing its own public purpose but for It is easy the interests of the community. protecting to perceive, to express, the though somewhat difficult distinction between the two kinds of taking of posses the wide sion which undoubtedly exists. sweep of the State's police power it is neither desirable to lay down a fixed general test for deter nor possible mining whether the taking of possession authorised into one ,category or the other. any particular \Vithout, such general therefore, enunciation of any rule it is possible to say broad! y the aim, purpose and the effect of the two kinds of taking of possession are different and that in each case to be carefully scrutinised in order question will have to determine taking of law. A consideration of possession authorised by such the ultimate aim, mode and manner of the taking of possession and the the effect for which such possession is taken, duration the person dispossessed and other of it on the rights of judicial verdict. The court will have rights and determine social control and whether, limitation, th~ operation of the law to the legitimate sphere of the State's police power or whether it has overstepped the field of limits and entered is only eminent domain. It in this way that the Court the Constitution by reconciling the serves and upholds conflicting social interests. is difficult and onerous but the scale even between like elements must all determine the provisions of the particular the light of the constitutional immediate purpose and in which category falls is confined individual to hold • ' light of the foregoing discussions and the reached by me I now proceed to examine in that In the conclusions the contention amending Act it infringes Subodh Gopal Bose'~ fundamental right property guaranteed by article 31. The argument 6-95 S. C. Indiaf59. impugned section 7 of is unconstitutional (VII of 1950) to i is 1 19~3 T\6 .St.u of Wut&npl v. Suio<ih Gopal Bo11 and Ot/1111. DosJ. 666 SUPREME COURT REPORTS [1954] realise in effect, gave they have been to the new section 37. Assuming the decree for ejectment come within the entire Touzinc at a revenue that having purchased the respondent Subodh Gopal Bose had under the old section 37 of the Act of 1859, acquired the valua to annul ble right the under-tenures and to eject under-tenants and that he had actually obtained a for ejectment but that he had been deprived of decree those vested rights by the operation of section 7 of retrospective amending Act which, operation to annul under-tenures and to eject under-tenants "property", as used in article 31(2) as to which I have the question at once arises whe considerable doubts taken possession of or acquired under the impugned Act. The Touzi still remains the property of the respondent Subodh Gopal Bose. He rents and exercise all acts of ownership except that he cannot exercise the right to annul the under-tenures or eject any under-tenants or execute the decree he has obtained. But have these last men rights been taken possession of or acquired by tioned the meaning of article 31 (2) ? There that the State has not "acquired" these rights in the sense I have explained, for there has been no transfer, by agreement or by operation of law, respondent Subodh Gopal Bose impugned law in the State or anybody has not vested the State or anybody else else and does not authorise to exercise these the position of the Sholapur Spinning and the shareholders under Weaving Company (Emergency Provision) Act, 1950, J. in Chiranjitlal's in his judgment Mukherjea case (supra) at pp. 905-906 :- to the State or anybody else. The rights. Referring State within is no doubt rights rights "The State has not usurped shareholders' right to vote or vested it in any other authority. The State appoints directors of its own choice but that it does, not in exercise of the shareholders' right to vote there has been no dispossession impugned Act. Thus their right of voting at all. the shareholders from to the other rights of the The same reasoning applies the powers vested in exercise of in it by S.C.R. SUPREME COURT REPORTS 667 the management by shareholders spoken of above, namely, their right of passing resolutions and of presenting winding up peti tions. These rights have been restricted undoubtedly ~m<l may not be capable of being exercised fullest extent as long as the State continues. Whether the restrictions are such as would the case within the mischief of article 19(1) (f) of I will examine presently; but I have the Constitution no hesitation in holding that they do not amount to dispossession of the shareholders from these rights in that the rights have been usurped by other the sense in place of the dis people who are exercising _them placed shareholders." 1933 The Stat1 ·of W1Jt Bengal v. Subodh Gopal BoJ1 and Other1. in exercise of The above reasoning applies mutatis mutandis to the case now before us. The truth these rights have not been taken possession of or acquired at all in exercise of the power of eminent domain but have been extinguished or destroyed the State's police power to prevent public mischief and anti-social to in the objects and reasons append activities referred impugned law. In the premises, the respondent Subodh Gopal Bose has been deprived of his "property'', if these rights -can be properly so described, by authority of law and the case falls within article 31 ( 1) and not within article 31 (2) at all. to the bill which eventually became ·the If the reasons then, for restrictions, impugned section is regarded as imposing a restriction on the right of Subodh Gopal Bose to hold I have mentioned, I hold property in the circumstances of this case, to be quite reasonable and permissible under article 19 (5). If the impugned- section operates as an extinguish to property, ment of his right annul under-tenures and to eject under-tenants and to the decree for ejectment as property, execute my judgment, these rights of the respondent Subodh taken possession of or Gopal Bose have not been acquired by the meaning of article 31 (2) but he has been deprived of his property by authority of law under article 31 (1) which calls for no the plea of uncons compensation. titutionality cannot prevail and must be I the State within the premises, the right rejected. treating then, In 1953 TM State of West Bengal v. Sub1'dh Gopal Bose and Others. Ghulam Hasan J. 668 SUPREME COURT REPORTS [1954} would, and in the High Court. therefore, allow the appeal with costs both here section 7 of GHULAM HASAN J.-I concur with my Lord Chief Justice that the view of the High Court, Calcutta, the West Bengal Revenue Sales (West Bengal Amendment) Act, 1950, is void as the fundamental rights of the first respond abridging ent under article 19(1)(f) and (5) of the Constitution cannot be sustained and I agree with the order propos ed by him. JAGANNADHADAS J.-I have had reading and of my learned brother Justice S. R. Das. judgments of my Lord the ad•antage of the Chief Justice On the assumption that the question raised in this (f) and (5) of case is one that arises under article 19(1) footing on which the Constitution-that being learned Judges of the High Court dealt with the case-I agree with that portion of the judgment of my that the learned brother Justice S. R. Das which holds impugned section 7 of the Bengal Land-Revenue Sales (West Bengal (West Bengal Amendment) Act, 1950 Act VII of 1950) reasons stated by him. intra vires and the Chief Justice and my Justice S. R. Das who have dealt with A larger question has, however, been raised as the scope of is a case which falls within whether this article 19(1) (f) and (5) or article 31 of the Constitu tion. Since, on either view, we are all agreed as to the final result of this appeal, I have felt rather reluctant to go into this larger question. But out of profound learned respect for my Lord brother matter fully and out of a sense of duty to the Court, I venture to express my views briefly. the Chief Justice is inclined to the view that the fundamental right declared in article 19(1) (f) has no reference to concrete property rights but refers to the natural rights and freedoms inherent in the status of a citizen. Even so, with respect, I fail rights see how the restrictions on the exercise of those than with referred to in article 19(5) can be otherwise To me, it reference concrete property My Lord rights. 1953 The Stale <?.f W1JI Bengal "' Suhot!h ·Go pal Bost and Othtrs. JatatinadhadaJ J. S.C.R. SUPREME COURT REPORTS I to the natural the exercise of in various cases appears, that article 19(1) (f), while probably meant to rights of the citizen, comprehends relate within its scope also concrete property rights. That, I is how it has. been generally understood with believe, these near! y four years out question in this Court arnl in the High· Courts. At any rate, the restrictions on article 19(5) appear if not invari to relate-normally, construe property ably-to article 19(1) (f) and (5) as not having reference rights and concrete property would enable impose unreasonable legislature the enjoyment of concrete property restrictions on (except where such restrictions can be brought within the scope of article 31 (2) by some process of construc tion). As at present advised, I am unable to give my assent to such a view. restrictions rights envisaged rights. To concrete this. The language used rccogrnt10n of it, country I understand Now as regards article 31, I agree that clause (1) cannot be construed as being either a declaration or the American doctrine of implied .. police power". The negative therein cannot, I think with respect, be turned into the grant, express or implied, of a positive power. Ineed as my the Chief Justice has pointed out in his judg Lord ment, no such grant of police power is necessary to the scheme of the Constitution. That having regard scheme, as respective have · plenary powers legislatures to them with reference to the ,various subjects assigned covered by the entries enumerated in the Lists of Seventh Schedule hy virtue of articles 245 to 255. These powers are limitation under article 13 is not to be so exercised as the fundamental rights declared in Part III to infringe of the Constitution. And, legislatures therefore, can exercise every power-including the police power, to import that concept-within these limits, in so far as it is not provided for in article 19(2) to (6) and article 31(5) (b) (ii) or other specific if any. The only problem . sions the Constitution, thus presented to the Courts is not as extent of the police . power, but. as to what is the scope is necessary the power to what is subject 1953 Thi St.ti of West Bengal y. Su6otf1i Gopal Bose and Olh1rJ. ]•gaf111odhiulas ]. 670 SUPREME COURT REPORTS {1954} to achieve limit of the fundamental right which is alleged infringed by legislative action. I agree with have been my learned brother Justice S. R. Das the Cons titution envisages a large measure of social control as the goal set out in the preamble a means in Part IV. and in the directive principles enumerated I am also of the view the Courts may not ignore the directive principles, as having no bearing on the constitutional interpretation article 31 categorically states legislature by virtue duty of the State in Part III made applicable of the definition of 'State' in making by article 36) laws". While, that a legislation may substantial measure of social control that to my in the fullness of time, become necessary is no reason for construing article 31(1~ as mind, implying some undefined police power, though such a consideration may have in the determination relevance of the ambit of a fundamental right. that "it shall be these principles I agree to apply therefore, in thinking (including problems, law, as distinguished from executive fiat for On the other hand, I am unable to agree with the view that article 31(1) has reference only to the power of Eminent Domain. I do not dispute that it compre the requirement of the authority hends within its scope the power of Eminent Domain. But it exercise of to me that its scope may well be wider. This appears the exact meaning to be really depends Qn what to the word "property" as herein used and . assigned on whether "deprivation" contemplated by article 31 the same as "taking possession" or ( l) 'is in substance in article 31(2). My Lord "acquisition" contemplated to the view that "taking inclined the Chief Justice possession" or "acquisition" to be construed as to and meaning "deprivati~n" or having "acquisition" .converse may not follow in the particular context which these words and phrases arc used. With great I can see no warrant for the construction respect, the assumption that article 31 ( l) and adopted except article 31 (2) topic of refer to the same and identical possession" versa. Undoubtedly "deprivation" reference amount "taking Th.•811111 •I W11t Bl,,tcl •·' S•6oJh [GoJol Ba11 n4 Ot,1;rrs. - l J•tan•od/i.J•1 J. S.C.R. SUPREME COURT REPORTS 671 run as "taking thereof, It appears there was no reason therein. For follows. public purposes under any the word "deprivation" in article 31 (2) and they provide for the differ eminent domain and i.e., requirement of requirements the require authority of law under article 31(1) and and compensation under ments of public purpose it appears to me that if in article 31 article 31(2). But possession" were (2) "acquisition" synonymous with "deprivation" already to be to drop the used in article 31 ( 1) use of instance, use other words and phrases article 31 (2) may well have "There shall be no deprivation of property, movable or immov- able,. ........... for law provides ........ " authorising the same unless or some other such clause may have been suitably framers of drafted. the Constitution requirement of the authority of law "deprivation of property" with larger connotation, they limited the requirement of a to what may reasonably be payment of compensation of "acquisition" comprehended within and "taking possession". With respect, in article 31 (2) as meaning the words and phrases thing as "deprivation" used in article 31 (1) test of "substantial abridgement" or and to make the sine qu~ 11011 for payment of "deprivation" as to open the door compensation under article 31 (2) the elements of if not all wide uncertainty which have gathered round the word in . the "taken" used American Constitution, notwithstanding caution to the the Chief Justice has contrary which . my Lord judgment. I am inclined to think that indicated the framers of the it is in order the use of the word Constitution deliberatelv avoided to me that while the the corresponding context laid down introduction of most, to obviate concepts in his . "deprived" or "deprivation" in article 31 (2). I am conscious of the principle so as that a Constitution has to be liberally construed content of the right guaranteed by it. But where, as there is, what appears, a deliberate choice in this case, of the language used, and where it is not unlikely that having regard to the goal ,has the Constitution to advance 1953 The State of WeJl Bengal ... Subodh Gopal Bose:a11d Others. JagannadhadaJ J. 672 SUPREME COURT REPORTS [1954) set to itself in Part IV, certain degree of caution and restraint may well have been intended as to the limits of the right, intendment of the language used has, in my opinion, to prevail. it, involving the possession to follow from in article 31 (2) title or possession Justice S. R. Das that from the point of view of On the other hand, I am unable to agree with my that "acquisition" learned brother in article 31 (2) have to be and "taking possession" taken as necess'arily transfer 'of title or posses sion. The words or phrases appear to me to comprehend all cases where taken out of the owner ancl appropriated without his consent by transfer or extinction or by some other process, which in substance amounts context meaning such possession as the nature of the property admits and which recognises as the enumeration possession. This seems of the classes of property to which it is applicable and also by reason of the broader consider the owner or possessor whose is appropriated, every such act of appropriation stands on the footing. That title or idea of possession is not necessarily implied by ~rticle 31 to be (2) appears indicated by article 31 (5) (b) (ii), which more often than not, would cover cases I may men of destruction of property. in agreement with that I am inclined my Lord that article 31 (5) (b) (ii) is an exception to article 31 (2) and is intended to absolve the need for "acqui for payment of compensation sition" or "taking therefore, purposes It, specified if such "acquisition" imply payment of compensation, for other "taking possession" of purposes. possession" of property title or possession the Chief Justice, to me to be also transference of Incidentally, to the view, property therein. The question then remains as to what is "property" contemplated by article 31 (2), apart from the specified categories phrase "any in, or in any company owning, any commercial or industrial undertaking." is no true that in a wide sense, property connotes not enumeration therein by included interest It 1953 TheStaJe of Wert Bengal v.· Subodh Gopol Bose and Ot!tm. Jagannadhadas J. • S.C._R. SUPREME COURT REPORTS 673 is within the word that which can be the "property" which -0nly a concrete incorporeal-but thing-corporeal or all the bundle of rights which constitute the ownership thereof and probably also each individual right out of in the that bundle in relation to such ownership. But context of article 31 (2)-as in the cogriate context of article 19 (1) (£)-the connotation of limited accompanying words "acquisition"' "taken possession". Hence out of the general the connotation of and wide category falling within the word "property'', only subject matter of "acquisition" or "taking possession", the scope of article 31(2). This . to my mind excludes, for instance, right, out of the bundle of rights a bare which go to make up property as being itself property individual for purposes of article 31 (2), unless right is in itself recognised by law as property or as an in property-an easement, a profits-a-prendre interest and the like-and as capable · of distinctive acquisition -0r possession. Thus for instance in the case with which we are concerned in the present appeal, annul under-tenures treated as it is not capable of independent acquisi property, for it can only tion or possession. The deprivation of amount to a restriction on the exercise of the rights as itself and hence must fall regards under article 19 (1) (f) taken with 19 (5), according to my understanding thereof. the main property in itself be individual cannot intended in a wider sense and deprivation of any In my view, however, the word "property" as used in article 31 (!) may have been to be under individual right out of a bundle of rights constit.!Jting concrete property may be deprivation of "property" which the authority of law. I am aware of the would require that in two parts of the same article possible criticism .the same word must be intended to have been used in the same sense. While this is a normal rule of con to the requirement of the context struction, it can yield arising juxtaposition of other words or phrases. To my mind article 31 (1), though part of an article is in essence an independent provision to some .extent overlapping with the requirements of the law 1953 T!11 Sta11 of W1Jt B1ngal Y, Subodh Gopal BoJt a11d Otlitrr. JazannU!11u/as J. 195~ Dec. 18. 674 SUPREME COURT REPORTS [1954} to me that relating of Eminent Domain. It is on a par with article 21. to serve a distinct purpose over and It seems law of Eminent Domain, to deprivation of property viz., the scope of other than article 31 (2). that such deprivation shall not be brought about save by authority of law. that which may fall within that it relates also It enjoins In view of what I have said above, it follows started, vit:., that the assumption with which I have this is a case falling under article 19 (1) (f) :md (5) is, in my opinion, correct. In the result I agree the appeal should be allowed with costs here and in the High Court. • Agent for the appellant : P. K. Bose. Agent for respondent No. 1 : R. R. Biswas. Appeal allowed. DWARKADAS SHRINIVAS OF BOMBAY v. THE SHOLAPUR SPINNING & WEAVING CO. LTD., AND OTHERS. rPATANJALI sAsTRI c.J., MEHR CHAND MAHAJAN, S. R. DAs, VIVIAN BosE and GHIJLAM HASAN JJ.] Sholapur Spinning and Weaving Co1npany (Emergency Proui sions) Ordinance II of 1950, replaced by Act XXVl!l of !950- H1 hether ultra vircs art. 31 of the Constitution-Arts. 19 and 31- Scope of-Whether different. The Sholapur Spinning and Weaving Co., Ltd., was incorpo 4 Indian Companies Act, 1913, with an authorised rated under capilal of Rs. 48 lakhs divided into 1590 fully paid up ordinary • shares of Rs. 1,000 each, 20 fully paid up ordinary shares of Rs. 500 shares of each and 32,000 partly paid up cumulative prcferenc<": Rs. 100 each, the paid up capital of the Company being- Rs. 32 lakhs comprised of Rs. 16 lakhs fully paid up ordinary shares and Rs. 16 lakhs partly paid up preference shares, Rs. 50 being unpaid on each of the 32,000 cumulative preference shares. The Company did goo<l business and declared high dividends for son1c time ; but there \Vas accumulation of stocks and financia1 in the year 1949 the 27th July, 1949, the Directors gave notice Gf difficulties. On