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TMI Blog1952 (5) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... yats and other occupants of lands in those areas into direct relation with the Government. The constitutionality of these Acts having been challenged in the respective State High Courts on various grounds, the Bihar Act was declared unconstitutional and void on the ground that it contravened article 14 of the Constitution, the other grounds of attacks being rejected, while the other two Acts were adjudged constitutional and valid. The appeals are directed against these decisions. Petitions have also been filed in this Court under article 32 by certain other zamindars seeking determination of the same issues. The common question which arises for consideration in all these appeals and petitions is whether the three State Legislatures, which respectively passed the three impugned statutes, were constitutionally competent to enact them, though some special points are also involved in a few of these cases. 3. As has been stated, various grounds of attack were put forward in the courts below, and, all of them having been repeated in the memoranda of appeals and the petitions, they would have required consideration but for the amendment of the Constitution by the Constitution (First Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5. The argument may be summarised thus. Entry of List II read with article 246(3) was obviously tended to authorise a State Legislature to exercise right of eminent domain, that is, the right of compute sorv acquisition of private property. The exercise such power has been recognised in the jurisprudence all civilised countries as conditioned by public necessity and payment of compensation. All legislation is this country authorising such acquisition of property from Regulation I of 1824 of the Bengal Code down to the Land Acquisition Act, 1894, proceeded on that footing. The existence of a public purpose and an obligation to pay compensation being thus the necessary concomitants of compulsory acquisition of private property, the term acquisition must be construed as importing, by necessary implication, the two conditions aforesaid. It is a recognised rule for the construction of statutes that, unless the words of the statute clearly so demand, a statute is not to be construed so as to take away the property of a subject without compensation : Attorney-General v. Di Keyser's Royal Hotel (1920) A.C. 508, 542. The power to take compulsorily raises by implication a right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to in clause (2) made by the Legislature of a State shall have effect unless such law, having been reserved for the consideration of the President, has received his assent . 8. Learned counsel stressed the words law and legislature and submitted that, inasmuch as the legislature of a State included the Governor (article 168) and a bill could become a law only after the Governor assented to it under article 200, clause (3) of article 31 must be taken to require that a State law authorising compulsory acquisition of property should receive the Governor's as well as the President's asset, the former to make it a law and the latter to give it effect . As the relative bills were reserved in each case by the Governor concerned after they were passed by the House or Houses of Legislature, as the case may be, without giving his assent under article 200, the statutes did not satisfy the requirements of article 31(3) and so could not have effect . This ground of attack, it was claimed, was not excluded by article 31-A or article 31-B as it was not based on infringement of fundamental rights. 9. Dr. Ambedkar, who appeared for some of the zamindars in the Uttar Pradesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the Provisional Parliament enacted with the object, among, others, of putting an end to this litigation. And it is no disparagement to their learned counsel to say that what remained of the campaign has been fought with such weak arguments as overtaxed ingenuity could suggest. 12. It will be convenient here to set out the material provisions of the Constitution on which the arguments before us have largely turned. Article 31(2). No property movable or immovable..... shall be acquired for public purposes under any law authorising..... such acquisition unless the law provides for compensation for the property..... acquired and ether fixes the amount of compensation or specifies the principles on which and the manner in which the compensation is to be determined and given. (3) No such law as is referred to in clause (2) made by the Legislature of a State shall have effect unless such law, having been reserved or the consideration of the President, has received his assent. (4) If any bill pending at the commencement of this Constitution in the Legislature of a State has after it has been passed by such Legislature, been reserved for the consideration of the President a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of other provisions of Part III as well, such as articles 14 and 19. This indeed was the reason for the enactment of articles 31-A and 31-B, as the words of exclusion in article 31(4) were found inapt to cover objections based on contravention of article 14. On the other hand, the law referred to in article 31(4) covers acquisition of any kind of property, while article 31-A relates only to the acquisition of a particular kind of property, viz., estates and rights therein, and what is more important for our present purpose, the non obstante clause in article 31(4) overrides all other provisions in the Constitution including the List of the Seventh Schedule, whereas a law which falls within the purview of article 31-A could only prevail over the foregoing provisions of this Part . Now, the three impugned statutes fall within the ambit of both article 31(4) and article 31-A and 31B. Putting aside the latter articles for the moment, it is plain that, under article 31(4), the three impugned statutes are protected from attack in any court on the ground that they contravene the provisions of article 31(2). These provisions, so far as they are material here, are (i) that a law with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to a public purpose and without payment of compensation. This was precisely the objection raised both by Mr. Das and Dr. Ambedkar to the constitutional validity of the impugned statutes, and such objection really amounts to calling those laws in question on the ground that they contravened the provisions of article 31(2), though learned counsel stoutly denied that they were relying on the provisions of article 31(2). The denial, however, seems to me to be based on a quibbling distinction without a difference in substance. Their main attack was really grounded on the absence of these two essential prerequisites of valid legislation authorising acquisition of private property, though Mr. Das would deduce them by implication from entry 36 of List II and entry 42 of List III, while Dr. Ambedkar sought to derive them from the spirit of the Constitution. But this is only a form of, stating the objection which, in substance, is that the statutes are bad because of the absence of a public purpose and the omission to provide for a just compensation. This, in fact, was the burden of the argument before us. If, then, these two grounds of attack fall within the purview of article 31(4), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t unless such property is required for a public purpose and without compensating the owner for its loss. But, when these limitations are expressly provided for and it is further enacted that no law shall made which takes away or abridges these safeguards, and any such law, if made, shall be void, there can be no room for implication, and the words acquisition of property must be understood in their sense of the act of acquiring property, without importing into the phrase an obligation to pay compensation or a conditions as to the existence of a public purpose. The entries in the Lists of the Seventh Schedule are designed to define and delimit the respective areas of legislative competence of the Union and State Legislatures, and such context is hardly appropriate for the imposition of implied restrictions on the exercise of legislative powers, which are ordinarily matters for positive enactment in the body of the Constitution. 16. There are indications in article 31 itself to show that the expression acquisition of property in entry 36 of List does not in itself carry any obligation to pay compensation. Clause (4) of that article postulates a law authorising acquisition of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e words, then it must follow that in the absence of those words in entry 33, Parliament can make laws authorising acquisition or requisitioning of property without a public purpose and a provision for compensation. No reason was suggested why parliamentary legislation with respect to acquisition or requisitioning of property is to be free from such restrictive conditions while State legislation should be subject to them. The fact is that the law-making power of both Parliament and State Legislatures can be exercised only subject to the aforesaid two restriction, not by reason of anything contained in the entries themselves, but by reason of the positive provisions of article 31(2), and, as laws falling under article 31(4) or under articles 31-A and 31-B cannot be called in question in a court of law for non- compliance with those provisions, such laws cannot be struck down as unconstitutional and void. 18. It was further contended that the power to make a law under entry 42 of List III was a power coupled with a duty, because such law was obviously intended for the benefit of the expropriated owners, and where the Legislature has authorised such expropriation, it was also bound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the Governor has already given his assent. It was said that article 31(3) provides a special safeguard which, in order to ensure that no hasty or unjust expropriatory legislation is passed by a State Legislature, requires for such legislation the assent of both the Governor and the President, and, to make this clear, the words law and legislature were deliberately used in clause (3). I am unable to agree with this view. The term legislature is not always used in the Constitution as including the Governor, though article 168 makes him a component part of the State Legislature. In article 173, for instance, the word is clearly used in the sense of the House of legislature and excludes the Governor. There are other provisions also where the word is used in contexts which exclude the Governor. Similarly the word law is sometimes loosely used in referring to a bill. Article 31(4), for instance, speaks of a bill being reserved for the President's assent after it has been passed by the legislature of a State and of the law so assented to . If the expression passed by the legislature were taken to mean passed by the Houses of the legislature and assented to by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iring these arrears on payment of only 50 per cent of their value as provided in section 24. Raising funds for augmenting the Treasury could not be regarded as a public purpose such as would justify expropriation of private property. Secondly, it was said that these 'arrears' would represent so much money when realised, and money could not be the subject of compulsory acquisition as the obligation to pay compensation would practically turn such acquisition into a forced loan. Nor could the payment of 50 per cent of the face value of the arrears be regarded as compensation for the loss of the total arrears, for, refund of one half of a sum of money taken away could never make good the loss of the balance. The argument proceeds on a misconception. Whatever may be the position as regards the acquisition of money as such, it is not correct to say that a law made under entry 36 of List II cannot authorise acquisition of chooses in action like arrears of rent due from the tenants which are covered by the term property used in that entry and in article 31. It is equally fallacious to argue that a payment in cash or in Government bonds of half the amount of such arrears leaves th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs had, in the past, neglected this duty, that does not affect the property of the deduction before determining the compensation payable to them. It is, therefore, idle to say that it is a mere contrivance for reducing the compensation. This apart, if, as I have endeavoured to show, payment of compensation is not a justiciable issue in the case of the impugned statues, having regard to articles 31(4), 31A and 31-B, it is not open to the court to inquire whether a deduction which results in reducing the compensation is unwarranted and therefore, a fraud on the Constitution. 23. Lastly, Mr. Das turned his attack on section 32 (2) read with section 43 (2) (p). Under the former provision compensation was payable in cash or in bonds or partly in cash and partly in bonds. The bonds were to be either negotiable or non-negotiable and non-transferable and were payable in forty equal instalments. Power was given to the State Government under section 43 (2) (p) to frame rules providing for the proportion in which compensation shall be payable in cash and in bonds and the manner of payment of such compensation . It was argued that, while the Constitution conferred power on the legislatures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into law . Thereupon the Speaker read the motion to the House, and this was followed by several speeches welcoming the measure, amid general acclamation in the House, as a great boon to the tillers of the soil. The official report of the proceedings prepared by the Secretary under rule 115 (1), however, did not record that the Speaker put the question in the usual form : The question is etc. and that the motion was carried. It was argued that the official report being the only authentic record of the proceedings of the Assembly under rule 115 (2) it must be taken to be conclusively established that the motion was not put to the House and carried by it. There is, in my opinion, no substance in the objection. The original Bill signed and authenticated by the Speaker was produced before us, and it contains an endorsement by the speaker that the Bill was passed by the Assembly on 5th April, 1950. The endorsement was signed by the Speaker on 10th May, 1950. The official report of the proceedings appears to have been prepared on 21st June, 1950, and was signed by the Speaker on 1st October, 1950. When be signed the report the Speaker did not apparently notice the omission as to the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -A should not be restricted in its application by reason of anything contained in article 31-B and are in no way calculated to restrict the application of the latter article or of the enactments referred to there in to acquisition of estates. The decision cited affords no useful analogy. 27. In some of the cases the estates sought to be acquired are situated in what was previously the territory of Indian States and belong to their former rulers. On the merger of those States in Madhya Pradesh or Uttar Pradesh, as the case may be, by virtue of the covenant of merger entered into between the rulers and the Government of India the properties in question were recognised to be the Private Property of the Rulers. In these cases it was urged that that estates sought to be acquired formed part of the Rulers' Personal rights guaranteed to them under the instrument of merger, and that neither the impugned statutes nor the notification issued the thereunder could deprives the Ruler of such properties in contravention of article 362. The Attorney-General had several answers to this argument, including the bar under article 363 to interference by courts in disputes arising out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act was published stating that the estate and tenures belonging to the respondent and two other passed to and became vested in the State of Bihar under the provisions of the At. The respondent filed a petition in the High Court of Judicature at Patna under article 226 of the Constitution, challenging the constitutionality of the said Bihar Land Reforms Act and praying for a writ in the nature of mandamus to be issued on the State of Bihar restraining it from acting in any manner by virtue of, or under provisions of the said Act. This application was heard along with three title suits and other similar applications filed by various zamindars of Bihar by a Special Bench of the High Court. By three separate but concurring judgment, the Court declared the Act to be unconstitutional and void on the ground of its infringement of fundamental right under article 14 of the Constitution. 32. The validity of the Act was attacked before the High Court on the following grounds : 1. That the Bihar Legislature had no competence to pass it. 2. That it contravened clause (1) of article 31 of the Constitution. 3. That the vesting of the estates in the state of Bihar under the Act being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ages could be raised on the ground that it contravened any of the provisions of Part III of the constitution. He however supported the decision of the Court on grounds decided against him by that court and urged the following :- 1. That it was not with in the competence of the Bihar State Legislature to enact the impugned Act. 2. That the acquisition of the estates not being for public purpose, the Act was unconstitutional. 3. That the legislative power in various section of the Act has been abdicated in favour of the executive and such abdication of power was unconstitutional. 4. That the Act was a fraud on the Constitution and that certain parts of the Act were unenforceable on account of vagueness and indefiniteness. 35. The foundation of Mr. P. R. Das's attack on the vires of the Act mainly rests on the contention that it implicit within the language of entry 36 of List II of the Seventh Schedule of the Constitution that property could not be acquired without payment of compensation the only effect of a compulsory power of acquisition against the individual being that there is the power to oblige him to sell and convey property when the public necessities req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicates that the law provide for some kind of land reform in Bihar. Its preamble gives no indication as to the nature of these reform except that it provides for the constitution of Land Commission to advice the State Government on the agrarian policy, whatever that expression may mean. The dominant purpose of the Act is that of transference to the State of the interests of proprietors and tenure- holders in land and of the mortgagees and lessees of such interests including the interests in trees, forests, fisheries, jalkars, ferries, huts, bazars, miner and minerals. Section 3 provides that the Government may, from time to time, by notification declare the estates or tenures mentions therein to have passed and become vested in the State. Section 4 mentions the consequences of such testing. It enacts that the interests of the proprietor or tenure-holder in any building or part of a building comprised in such estate or tenure and used primarily as office or cutchery for the collection of rent of such estate or tenure, and his in trees, forests, fisheries, jalkars, huts, bazars and ferries and all other sairati interests as also his interest in the subsoil including any rights in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the management of the estate or tenure. Section 5 permits the proprietors and tenure-holders to retain their homesteads but only in the capacity of tenants free from the obligation to pay rent. Section 6 allows them to retain possession of lands in their has possession or in the possession of lessees under them, on payment of rent as raiyats to the State in the status of occupancy tenants. Section 7 provides that buildings together with lands on which such buildings stand and in the possession of proprietors and tenure-holders and used as golas, factories or mills shall be retained by them on payment of rent. Section 8 gives a right of appeal to a party aggrieved against the Collector's order. In section 9 it is provided that all mines comprised in the estate or tenure as were in operation at the commencement of this Act and were being worked directly by the proprietor or tenure-holder shall be deemed to have been leased by the State Government to the proprietor or tenure-holder. This section does not include within its scope mines on which considerable money might have been spent but which are actually not in operation. An artificial definition has been given in section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case may be, the following :- (a) any sum payable as land revenue or rent ; (b) any sum payable by such proprietor as agricultural income-tax in respect of any agricultural income derived from such estate of tenure for the previous agricultural year : (c) any sum payable by such proprietor or tenure holder as income-tax in respect of any income derived from such estate or tenure, other than royalties for the previous agricultural year : (d) any sum payable as chaukidari tax or municipal tax; (e) cost of management of such estate or tenure at rates varying from five to twenty per cent, according to the amount of the gross asset. The lowest limit fixed is at ₹ 2,000 and the highest at any amount exceeding ₹ 15,000. 40. These rates appear to have been fixed in an arbitrary manner bearing no relation whatsoever to the actual cost of management. To illustrate, in the case of the Maharaja of Darbhanga whose estate has gross income of nearly forty-eight lakhs, the cost of management, according to this calculation, would work out to a sum of nine and a half lakhs, which on the face of it looks starting; it can hardly have any relation to the costs actually inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of mines and minerals as determined under section 25. The section also lays down the method of assessment of compensation in the case of persons who have only a share in the zamindari or have other minor interests in the tenures or estates where the estate or tenure is held in trust etc., or where they are of an impartible nature. In the case of mines and minerals the method of assessment is laid down in section 25. It has either to be fixed by agreement of by a tribunal appointed for the purposes. The subsequent sections provide for the preparation of compensation roll and for hearing of appeals etc. Section 32 lays down the method and manner of payment of compensation. Sub-section (2) of this section enacts that the amount of compensation shall be paid in cash or in bonds or party in cash and partly in bonds. The bonds shall be either negotiable or non-negotiable and non-transferable and be payable in forty equal installments to the person named therein and shall carry interest at two and a half per cent. Per annum with effect from the date of issue. Any disputes about compensation between the proprietors or tenure holders have to be determined by a tribunal appointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a proper appreciation and appraisal of the proposition of Mr. P. R. Das that the obligation to pay compensation is implicit in the language of entry 86 of List II of the Seventh Schedule and that the power to take compulsorily raises by implication a right to payment, the power to acquire being inseparable from the obligation to pay compensation if is necessary to examine briefly the origin of the power of the State on the subject of compulsory acquisition of property. This power is a sovereign power of the State. Power to take property for public use has been exercised since olden times. Kent speaks of it as an inherent sovereign power. As an incident to this power of the State is the requirement that property shall not be taken for public use without just compensation. Mr. Broom in his work on Constitutional Law says, Next in degree to the right of personal liberty is that of enjoying private property without undue interference or molestation, and the requirement that property shall not be taken for public use without just compensation is but an affirmance of the great doctrine established by the common law for the protection of private property. It is founded in natural equit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its irreducible terms is, (a) power to take (b) without the owner's consent, (c) for the public use. The concept of the public use as been inextricably related to an appropriate exercise of the power and is considered essential in any statement of its meaning. Payment of compensation, though not an essential ingredient of the connotation of the term, is an essential element of the valid exercise of such power. Courts have defined eminent domain so as to include this universal limitation as an essential constituent of its meaning. Authority is universal in support of the amplified definition of eminent domain as the power of the sovereign to take property for public use without the owner's consent upon making just compensation. 48. It is clear, therefore, that the obligation for payment of just compensation is a necessary incident of the power of compulsory acquisition of property, both under the doctrine of the English Common Law as well as under the continental doctrine of eminent domain, subsequently adopted in America. 49. The question for consideration is whether this obligation to pay compensation for compulsory acquisition of property has been impliedly laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such a law without providing for compensation. The it was said that entry 36 of List II was linked up with entry 42 of the Concurrent List by the words subject to occurring therein and that the validity of any law made in exercise of legislative power under entry 36 was conditional on the simultaneous exercise of the legislative power under entry 42 and because there has been no valid exercise of this power (the provisions of the impugned Act regarding the determination of compensation being illusory) the legislation under entry 36 fails. In my opinion, this contention is unsound. The two entries referred to above are merely heads of legislation and are neither inter-dependent nor complementary to one another. It is by force of the provisions of article 31(2) that it becomes obligatory to legislate providing for compensation under entry 42 of the Concurrent List in order to give validity to a law enacted under entry 36 and not by reason of the use of the words subject to in the wording of the entry. No such words occur in entry 33 of the Union List. It cannot reasonably be argued that Parliament could make a law for compulsory acquisition of property for; its purposes with o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not wish to do so. Failure make a law under entry 42 cannot make a law made under entry 36 bad. In my opinion, the decision in the case of Julius v. Bishop of Oxford (1880) 5 App. Cas. 214 has no relevancy to the matter before us. 52. The crucial point for determination in these appeals is to discover the extent to which article 31(4) of the Constitution or the new articles 31-A and 31-B have deprived the expropriated, proprietor of his rights or remedies in respect of this matter and of the guaranteed right to get compensation for property acquired. Article 31(4) is in these terms :- If any Bill pending at the commencement of this Constitution in the legislature of a State has, after it has been passed by such Legislature, been reserved for the consideration of the President and has received his assent then, notwithstanding anything in this Constitution, the law so assented to shall be called in question in any court on the ground that it contravenes the provisions of clause (2). Articles 31-A and 31-B are in these terms:-- 31-A (1) Notwithstanding anything in the foregoing provisions of this Part, no law providing for the acquisition by the State of any estate of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le by clause (4), relate to the etermination and payment of compensation. The whole purpose of the clause is to make the obligation to pay compensation a condition precedent to the compulsory acquisition of property. The words of the clause preceding the word unless are merely descriptive of the law, the validity of which would be questionable if there was no provision for determination and for payment of compensation for the property taken in its contents. The use of the word such fully supports this interpretation. The mandate of the clause is that such a law must contain a provision for payment of compensation to the expropriated proprietor. According to the Oxford Dictionary, (Vol. 8, p. 1526) the expression provision when used in statutes, has reference to what is expressly provided therein. What article 31(4) really says is that the contravention of the express provisions of article 31(2) relating to payment of compensation will not be a justiciable issue. It has no reference to anything that may be implied within the language of that clause. The existence of a public purpose is undoubtedly an implied condition of the exercise of compulsory powers of acquisition by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture that made the law has acted in exercise of its law making power within the lists or has merely made some other law though it has ostensibly exercised its powers under a certain legislative head which cannot be used to support the legislation. 57. As regards the new articles 31-A and 31-B, they merely place beyond the reach of the court any enactment dealing with compulsory acquisition of property which may infringe any of the provisions of Part III of the ? Constitution; in other words, article 13(2) of the Constitution cannot be called in aid to impugn the validity of such statues. 58. Having determined the scope of article 31(4), it is now convenient to examine the extent of the protection given by article 31(4) to the impugned statute. 59. Mr. Das is to a great extent right in his contention - the point was not seriously challenged by the learned Attorney-General - that the law under challenge in the matter of compensation is highly unjust or inequitable to certain persons and in certain matters, and compensation in some cases is purely illusory. Be that as it may, the Constitution in express terms prohibits an enquiry in a court of law into those matters,. The sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . That it is, has been decided by the Constituent Assembly itself. 61. This decision was reached in view of the provisions of clauses (4) and (6) of article 31 which were interpreted to mean that the Constituent Assembly gave their express approval to this legislation. Reuben J. observed as follows :- From article 31, clause (2), it is clear that the Constituent Assembly considered two requirements as essential for compulsory acquisition, namely, a public purpose and provision for compensation. The protection which the Constituent Assembly gave under clauses (4) and (6) was confined to the latter requirement. Evidently, therefore, the Constituent Assembly thought that protection was not required under the other head, that is to say, the Constituent Assembly regarded the nationalization of land as itself constituting a public purpose. I would, therefore, hold that there is a public purpose for the impugned Act within the meaning of clause (2) of article 31. ' Das, J. said as follows :- There is, I think, clear indication in the Constitution of India itself that the expression 'public purpose' is to be understood in a wide and comprehensive sense. Furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 63. The learned counsel proceeded to say that nationalization of land may be the policy of the party in power but this is not a public purpose which involves benefit to the community. Reference in this connection was made to the decision in Hamabai Pramjee Petit v. Secretary of State for India [(1915) 42 I.A. 44.] where it was observed that the phrase public purpose whatever it may mean, must include a purpose, that is, an object or aim, in which the general interest of the community as opposed to the particular interest of individuals is directly and vitally concerned. The impugned Act, it was contended, did not fall within this definition of public purpose . Reference was also made to Vol. II of Cooley's Constitutional Limitations, at page 744, wherein it is said as follows :- The purpose must be public, and must have reference to the needs or convenience of the public and no reason of general public policy will be sufficient to validate other transfers when they concern existing vested rights. 64. Finally, it was urged that there was nothing definite or tangible in the Act or in the views of the legislatures which gave any indication of the public purpose fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which the Constitution of India is based. The purpose of the acquisition contemplated by the impugned Act therefore is to do away with the concentration of big blocks of land and means of production in the hands of few individuals and to so distribute the ownership and control of the material resources which come in the hands of the State as to subserve the common good as best as possible. In other words, shortly put, the purpose behind the Act is to bring about a reform in the land distribution system of Bihar for the general benefit of the community as advised. The legislature is the best judge of what is good for the community, by whose suffrage it comes into existence and it is not possible for this Court to say that there was no public purpose behind the acquisition contemplated by the impugned statute. The purpose of the statute certainly is in accordance with the letter and spirit of the Constitution of India. It is fallacious to contend that the object of the Act is to ruin five and a half million people in Bihar. All lands in khas possession of all these persons have not been made the subject-matter of acquisition. Their homesteads, their mineral wealth except mines not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere purpose of raising a revenue by sale or otherwise and the exercise of such a power is utterly destructive of individual right. Taking money under the right of eminent domain, when must be compensated in money afterwards is nothing more or less than a forced loan. Money or that which in ordinary use passes as such and which the Government may reach by taxation, and also rights in action which can only be available when made produce money, cannot be taken under this power. Willis in his Constitutional Law, at page 816, is the same opinion. Nichols on Eminent main (Vol. I, at page 97) has expressed a contrary opinion and reference has been made to the in Cincinnati v. Louisville etc., R. Co.(223 U.S. 390) An examination of this case, however, does not disclose at any such proposition was stated therein. It was in that case that a Bill to restrain the enforcement of a State statute regulating fire insurance rights was a valid law in the State of Kansas. It was not necessary to decide in this case whether under the compulsory acquisition power the State has the power to acquire choses in action or money, but it cannot be seriously disputed that such an acquisition amounts to a for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compensation has been made payable in respect of forests or trees which were not fetching any income at the date of vesting. In a nutshell, it was contended that the object of the Act was to acquire properties of the zamindars by payment of compensation (so-called) out of the moneys belonging to the zamindars themselves and that in some cases they had not only to give up their estates for nothing but would have to pay something, in addition, to the State, if the principles specified in the Act were to apply. It was pointed out in the case of the Maharaja of Darbhanga that his zemindari would have be acquire by the State Government without paying anything but that the Maharaja would have to pay out of this own money six lakhs to the Government. In case No. 330 of 1951 (Raja P. C. Lall). It was said that Government would get the zemindari free, while in Case No. 339 of 1951 the State will get the zemindari and two and half lakhs out of the arrears, while in Case No. 331 of 1951 (Chota Nagpur appeal) the zemindari will be acquired on payment of small sum of ₹ 14,000 only. No thing will be payable to the zamindars out of the public exchequer. Attention was drawn to the observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abuse of their statutory powers. Reliance was placed in this connection the observations of Abbott C.J. in Fox v. Bishop of Chester 107 E.R. 520, at p.527, which are in these terms :- Our judgment is founded upon the language of the Statute 31 Eliz. c. 6. and the well-known principle of law, that the provisions of an Act of Parliament shall not be evaded by shift or contrivance. 73. In Fox v. Bishop of Chester 6 E.R. 581, it was said that there may be fraud on the law, an insult to an Act of Parliament, though in the language and text of the law no such fraud may have been mentioned. In Westminster Corporation v. London North Western Railway (1905) A.C. 426 at p. 430, it was observed :- It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first. 74. In Maharaja Luchmeswar Singh v. Chairman of the Darbhanga Municipality 17 I.A. 90, it was pointed out that the offer and acceptance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislation...... In that case, this court applied the well known principle that in relation to constitutional prohibitions binding a legislature, that legislature cannot disobey the prohibition merely by employing an indirect method of achieving exactly the same result..... The same issue may be whether legislation which at first sight appears to conform to constitutional requirements is colourable disguised, In such cases the court may have to look behind names, forms and appearances to determine whether or not the legislation is colourable or disguised. 77. The provision herein impeached has not been arrived at by laying down any principles of paying compensation but in truth, is designed to deprive a number of people of their property without payment of compensation. The State legislature is authorised to pass an Act in the interests of persons deprived of property under entry 42. They could not be permitted under that power to pass a law that operates to the determent of those persons and the object of which provision is to deprive them of the right of compensation to a certain extent. 78. In this connection it is now convenient to examine the contention of the learned At ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esult of payment of compensation and not non-payment of the same. The key words in the entry are compensation and given . Anything that is unrelated to compensation or the giving of it cannot be justified by legislation under entry 42. Reference was made in this connection to the United Provinces v. Atiqa Begum (1940) F.C.R. 110 at p. 135, in which it was held that the descriptive words under the legislative head collection of rents are wide enough to permit legislation in respect of remission of rents and that under item 22 of the Government of India Act, 1935, the legislative head forests include the power to legislate with respect not only to afforestation but also to disafforestation and that the legislative head fisheries would include the power to legislate on the prohibition of fishing altogether. In my opinion, these analogies have no application to the construction of the language employed in entry 42. These entries are not in pari materia to entry 42. Perhaps a more analogous case on the point is the decision in Attorney General for Ontario v. Attorney-General for the Dominion (1896) A.C. 348. The question there was whether the legislative head Regulation of Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Russell v. The Queen.(7 (1882) App. Cas. 841)] Reference in this connection may also be made to the decision of the Privy Council in Madden v. Nelson Fort Sheppard R. W. Co. (1899) A.C. 626. This Clause therefore is unconstitutional legislation made colourably valid under exercise of legislative power under entry 42 of List II. 82. It was contended by Mr. Das that if some provisions in the Act are ultra vires, the statute as a whole must be pronounced to be ultra vires and that it could not be presumed that the legislature intended to pass it in what may prove to be a truncate form. The real question to decide in all such cases is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive, or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted at all that which survives without enacting the part that is ultra vires. Looking at the Act as a whole, it seems to me that the offending provisions of the Act are not so inextricably bound up with the part that is valid as to hit or kill the remainder also. In this case a presumption cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1950. The matters alleged to have been delegated are these :- 1. The determination of the proportion of the case payment to the payment by giving bonds, negotiable or non-negotiable. 2. The determination of the period of redemption of these bonds. 3. The period of interval between the several instalments. 86. The section enacts that the compensation payable shall be paid in cash or in bonds or partly in cash and partly in bonds. It therefore determines the principle that the payment of compensation will be in these two forms. It further enacts that bonds shall be either negotiable or non-negotiable and non-transferable. It therefore also determines the nature of the bonds that would be issued. It further enacts that the payment, if made in bonds, will be paid in forty equal instalments. It is obvious that the time of redemption of the bonds will be co-terminous with the period of the instalments. It has further enacted that the bonds will carry interest at the rate of two and a half per cent. What has been left to the executive is the question of the determination of the proportion in which compensation is to be paid in cash or in bonds and the fixation of the int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and legislate on the principles of payment of compensation. This argument really has no force, because the provisions to assessment of compensation enacted in the Land Acquisition Act only apply to acquisitions that are made by notification under that Act. Its provisions have no application to acquisitions made under either local or central laws unless they are specifically made applicable by the provisions of these statutes. 90. Another point put forward by him, that articles 31-A and 31-B of the Constitution cannot affect ending cases cannot be seriously entertained because prospectivity is writ large on the face of those articles. Similarly, I cannot but regard as unsubstantial his contention that transference of estates of zamindars to the State under the provisions of a statute requires registration. The only other point seriously pressed by him is that the Bihar Legislature had no power to issue bonds without complying with the procedure laid down in article 293 of the Constitution. It is enough to state with regard to this point that the stage for issuing bonds has not arrived as yet. When the State legislature issues bonds which are unenforceable or which it is not comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, and although in enacting the provision, the legislature purported to exercise its powers under entry 42 of the Legislative List III in Schedule VII of the Constitution, in reality it is a colourable exercise of that power under which a thing has been done which is not contemplated by that entry at all and lies outside its ambit. It agree with the line of reasoning adopted by my learned brother in this connection and there is nothing further which I can usefully add. 97. As regards section 4 (b) it has been held by my learned brother that the provision of this clause is unconstitutional as it does not disclose any public purpose at all. The requirement of public purpose is implicit in compulsory acquisition of property by the State or what is called, the exercise of its power of eminent domain This condition is implied in the provision of article 31(2) of the Constitution and although the enactment in the present case fulfills the requirements of clause. (3) of article 31 and as such attracts the operation of clause (4) of that article, my learned brother has taken the view that the bar created by clause (4) is confined the question of compensation only and does not extend the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution has no application so far as these arrears of rent are concerned. The arrears of rent, therefore, are the subject-matter of separate and independent acquisition under the Bihar Land Reforms Act, if the word acquisition can at all be appropriate to cases of this description. 100. It cannot be disputed that in every Government there is inherent authority to appropriate the property of the citizens for the necessities of the Sate and constitutional provisions do not confer this power though they generally surround it with safeguards. The restraints invariably are that when private property is taken, a pecuniary compensation must be paid [Vide Cooley on Constitutional Limitations, Vol. II, p. 1110.]. Thus eminent domain is an attribute of covering power supposed to be tempered by a principle of natural law which connects its exercise with a duty of compensation. [Vide Encyclopedia of Social Science, Vol. V, p. 493.] 101. Possibly under the impression that the sacredness of private property should not be confided to the uncertain virtues of the party in power for the time being, the Constitution-makers of our country have declared it as one of the fundamental rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Government cannot lawfully appropriate under any other right, is subject to be seized and appropriated under the right of eminent domain [See Cooley on Constitutional Limitations. Vol. II, p. 1113.]. Money as such and also rights in action are ordinarily excluded from this List by American jurists and for good reasons [Coolcy, Vol. 11, p. 1I18; Willis on Constitutional Law, p. 816.]. There could be no possible necessity for taking either of them under the power of eminent domain. Money in the hands of a citizen can be reached by the exercise of the power of taxation, it may be confiscated as a penalty under judicial order and and we can even conceive of cases where the State seizes or confiscates money belonging to or in the hands of a citizen under the exercise of its 'police' powers on the ground that such fund may be used for unlawful purposes to the determent of the interest of the community. But, as Cooley has pointed out [Vide Cooley on Constitutional Limitations, Vol. 11, p. 1118, F. N.], taking money under the right of eminent domain when it must be compensated by money afterwards could be nothing more or less than a forced loan and it is difficult to say that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any return and this is naked confiscation, no matter in whatever specious form it may be clothed or disguised. The impugned provision, there fore in reality does not lay down any principle for determining the compensation to be paid for acquiring the arrears of rent nor does its say any thing relating to the form of payment, though apparently it purports to determine both. This in my opinion, is a fraud on the Constitution and makes the legislation, which is a colourable one, void and inoperative. The learned Attorney-General has contended that it is beyond the competency of the Court to enter into a question of bona fide or mala fides of the legislature. In a sense this is true. If the legislature is omnipotent, the motives, which impel it to enact a particular law, are absolutely irrelevant; and on the other hand if it lacks competence the question of motives does not at all arise. But when a legislature has a limited or qualified power and has got to act within a sphere circumscribed by legislative entries, the question whether in purporting to act under these entries, it has, in substance, gone beyond them and has done certain things which cannot be accomplished within the scop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of the Act have been analysed and summarised in the judgment just delivered by Mahajan J. and it is not necessary for me to burden this judgment by recapitulating the same. On September 25, 1950 the text of the Act was published in the Official Gazette with a notification under section 1(3) dated September 24, 1950, bringing the Act into operation. A notification under section 3 of the Act dated September 25, 1950 vesting the estates of cetain named proprietors was published in the Official Gazette on the next day. This notification having been published in the Official Gazette, some of the proprietors affected thereby instituted suits in the Subordinate Courts in Bihar after giving the requisite notice under section 80 of the Code of Civil Procedure and prayed for a declaration that the Act was unconstitutional and void and that their title to the properties remained unaffected. Some of the other proprietor filed applications in the High Court at Patna under article 226 of the Constitution praying for the issue of appropriates writs, directions or orders. The State of Bihar filed its written statements in the suits which were transferred to the High Court for disposal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this Part : Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. (2) In this article,- (a) the expression estate shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or muaft or other similar grant; (b) the expression rights , in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder or other intermediary and any rights or privileges in respect of land revenue. 5. After article 31-A of the Constitution as inserted by section 4, the following article shall be inserted, namely :- 31-B. Without prejudice to the generality of the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d no power to enact the said Act inasmuch as it makes no provision for the payment of just compensation for the proposed acquisition of the zamindaries and tenures. B. Even if the Court does not accept the correctness of the arguments based on entry 36 in List III and entry 42 in List III and holds the respondents barred from going into the question of compensation by reason of articles 31(4), 31-A and 31-B the respondents are still entitled to challenge the Act on the ground that the proposed acquisition is not for a public purpose. C. The Act constitutes a fraud on the Constitution, that is to say, while it purports to be in conformity with the Constitution it, in fact, constitutes a defiance of it. D. The Act is unenforceable in that section 32 (2) provides for payment of compensation in 40 equal instalments without specifying the period of interval between the instalments. E. The Act delegated essential legislative functions to the executive Government. 112. The hands of objections thus formulated by Mr. P. R. Das apparently look formidable and it is necessary, therefore, to consider with close attention the arguments advanced by him in support of each of them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uoted by Harlan J. in Chicago, Burlington and Quincy Railroad Company v. Chicago [166 U.S. 216; 41 L. Ed. 979.]. In England Lord Dunedin in Attorney- General v. De Keyser's Royal Hotel Ltd. [(1920) A.C. 508.], described the obligation to pay compensation as a necessary concomitant to taking . It follows, therefore, that the obligation to pay compensation is inseparable from and is implicit in the power of acquisition. This obligation flows from the mere use of the word acquisition in entry 36 in List II, as in entry 33 in List I. That word, by itself, according to Mr. P. R. Das, connotes a compound concept, namely, the concept of a power of taking on just terms and confines the very legislative competency under those entries within the limits of that compound concept. If, however, the word acquisition in entry 36 in List II and entry 33 in List I does not by itself imply the obligation to pay just compensation, them, urges Mr. P. R. Das in the alternative, the words subject to the provisions of entry 42 of List III occurring at the end of entry 36 in List II certainly brings in that obligation. On a plain reading of entry 36 in List II the power to make law with respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... United Provinces v. Mst. Atiqa Begum and Others [(1940) F.C.R. HO at p. 134.], Thakur Jagannath Baksh Singh v. The United Provinces [(1946) F.C.R. 111 at p. 119.] and Megh Raj and Another v. Allah Rakhia and Others [(1947) F.C.R. 77.] in support of the proposition that each entry in the list, which is a category or head of the subject-matter of legislation, must be construed as widely as possible so as to include all ancillary matters. This line of reasoning and favour with Shearer J. but was rejected by Reuben J. and S. K. Das J. There is no doubt that land in entry 18 in List II has been construed in a very wide way but if land or land tenures in that entry is held to cover acquisition of land also, then entry 36 in List II will have to be held as wholly redundant, so far as acquisition of land is concerned, a conclusion to which I am not prepared to assent. In my opinion, to give a meaning and content to each of two legislative heads under entry 18 and entry 36 List II the former should be read as a legislative category or head comprising land and land tenures and all matters connected therewith other than acquisition of land which should be read as covered by entry 36 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he subjects, imposed a limitation on the exercise of that right by the State. This indicates that the power of acquisition and the obligation to pay compensation are two separate and distinct concepts although the second follows the first. If the obligation to pay compensation were an integral part of the concept or the meaning of taking itself, then this part of the Fifth Amendment was wholly unnecessary. It follows, therefore, that he express in acquisition does not, by itself and without more, import any obligation to pay compensation. It is urged by Mr. P. R. Das that entry 42 in List III really implements the obligation implicit in entry 36 in List II and the two entries are complementary to each other. If this obligation were not implicit in entry 36 in List II then where else, it is asked, is the obligation to pay compensation to be found? The obvious answer is that that obligation is to be found in article 31(2) in Part III of our Constitution. The obligation to pay compensation may be introduced as a part of the legislative power itself, in which case it becomes a composite power, namely, a power to make law with respect to acquisition circumscribed by the obligation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f property in article 246 read with entry 33 in List I and entry 36 in List II, the obligation of such law to provide for compensation in article 31(2) and the power of making a law laying down the principles for determining such compensation in article 246 read with entry 42 in List III. According to this scheme it is not necessary at all to regard entry 33 in List I and entry 36 in List II, which are mere heads of legislative power, as containing within themselves any obligation to provide for the payment of compensation. In other words, it is not necessary to treat the obligation to pay compensation as implicit in or as a part or parcel of these legislative heads themselves, for it is separately and expressly provided for in article 31(2). The well-known maxim expressum facit cess are tacitum is, indeed, a principle of logic and common sense and not merely a technical rule of construction (See Broom's Legal Maxims, 10th Edn., p. 443 at p. 452). The express provision in article 31(2) that a law of acquisition, in order to be valid, must provide for compensation, will, therefore, necessarily exclude all suggestion of an implied obligation to provide for compensation sought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luded from the content of entry 36 in List II by the words subject to et cetera and Parliament may, therefore, freely make a law with respect to the matter thus excluded from entry 36 in List II and set forth as a separate and independent item in entry 42 in List III. This consideration was not material in connection with entry 33 in List I which explains the omission of the words subject to et cetera from that entry. 116. Mr. P. R. Das finally urges that if the obligation to provide for compensation is not implicit in the word acquisition in entry 36 in List II and if that obligation is not to be read into that entry even in view of the words subject to......... at the end of it, even then if the State exercises its power to make a law with respect to acquisition of property under entry 36 in List II it is the duty of the State Legislature to make a law also with respect to matters specified in entry 42 in List III on the principle that as entry 42 in List III confers a power on the Legislature for the protection of the interest of persons whose property is compulsorily acquired, such power must, therefore, be regarded as coupled with a duty to exercise it. No authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng out of the residuary powers of Parliament under article 248 and entry 97 of List II I have taken the case of a law of acquisition made by the legislatures of a State which also come within article 31(4) . Is there, then, any entry in List II under which a State Legislature can make a law for acquisition without compensation or public purpose? Obviously there is none, except entry 36 in List II. If that entry by itself or read with entry 42 in List III has any implication as suggested, namely, that a law for acquisition of property made under entry 36 in List II without a provision for compensation will be beyond the legislative competency of the State Legislatures, then there is no other entry under which such a law can be made by a State Legislature and there can, therefore, be no point in making a provision in article 31(4) for protecting, against article 31(2), a law which, on this hypothesis, cannot be made at all. Article 31(4) postulates a law which offends against 31 (2) and so far as the State Legislatures are concerned there is no entry in List II except entry 36 under which such an offending law may be made by the State Legislatures. This circumstance unmistakably esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Das's proposition. In my judgment, for the reasons stated above, the major premise in the arguments advanced by Mr. P. R. Das under the first head, namely, that the obligation to pay compensation is implicit in entry 36 in List II by itself or read with entry 42 in List III is unsound. 118. The obligation to provide for compensation being as I hold, a provision of article 31(2) and not being implicit in or a part and parcel of the legislative power itself under entry 36 in List II read by itself or conjunction with entry 42 in List III, the impugned Act cannot, by virtue of articles 31(4), 31A and 31-B be called in question on the ground that it contravenes or is consistent with or takes away or abridges any of the rights conferred by the provisions of clause (2) of article 31, that is to say, that is does not provide for compensation. 119. Assuming that the obligation to pay compensation which is expressly provided in article 31(2) is also implicit in entry 36 in List II by itself or read with entry 42 in List III, the respondents cannot, even then, be permitted to call in question the validity of the impugned Act on the ground that it does not provide for compensation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e gross assets which are taken to be synonymous with the gross income and then to make certain deductions therefrom and to arrive at the net assets. Then the compensation is to be calculated at a sliding scale of rates varying from 20 to 3 times of the net income. To the amount thus determined is to be added a moiety of the accumulated arrears of rent etc. and the compensation for the mines and minerals as determined under section 25. Ex facie, it cannot be disputed that the Act does prescribe some principles for determining the compensation payable to the proprietor or tenure-holder. It is, however, pointed out that the deduction of 5 to 20 percent of the gross assets as and by way of cost of management is quite arbitrary. It is said that although it is well known that the percentage of cost of management in relation to the income of a small estate is greater than that of a larger estate, yet the Act provides for deducting 20 percent of the gross assets in the case of proprietors of the larger estates but only 5 percent in the case of the smaller estates. Objection is next taken to the deduction of any amount under the head of works of benefit to raiyats the and also to the scale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a deficit figure. The fact that in one isolated case the calculation may work out in this way, does not, however, prove that no principle has been laid down. Indeed, in all other cases the principle has been laid down in the Act actually produces compensation, however inadequate it may be said to be in some cases. If a principle has been laid down, then the provisions of entry 42 in List III are amply satisfied and no question of legislative incompetency can arise. If a principle has been laid down in the Act but that principle does not in fact produce any compensation in any rare case or adequate compensation in some cases then the real complaint should be, not that no principle has been laid down but, that the principle laid down does not produce what may be called just compensation. That result may offend against the provisions of article 31(2) but certainly not against entry 42 in List III and in view of articles 31(4), 31A and 31B the Act cannot be challenged for non-compliance with article 31(2). On the other hand, even it is held that no principle has, in fact, been laid down by the Act, as contended, then that fact not only amounts to a breach of the provisions of entry 42 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides certain other unusual forms of property. This passage is founded on certain earlier decisions of the American Courts. It is, however, clear from Nichols on Eminent Domain, Vol. I, p. 99, paragraph 2, and the case of Cincinnati v. Lowisville N. R. Co. [223 US. 390; 50 L.Ed, 481.] cited therein that the modern view is that the right of eminent domain can be exercised on choses in action. In any case, we are to consider whether arrears of rent are property in the sense in which that expression is used in our Constitution and understood in our law. What are the arrears of rent but rents that have fallen due but have not been paid? It is not at all money in the till of the landlord but it is a debt due by the tenants. It is therefore, nothing but an actionable claim against the tenants which is undoubtedly a species of property which is assinable. Therefore, it can equally be acquired by the State as a species of property. 124. It is finally urged that the Act makes no provision for payment of compensation for taking this item of property. It is true that in section 24 the word compensation is used in connection with the taking of the estates or tenures and also the ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mind, indicates clearly that compensation is in fact paid for the arrears of rent and I am not prepared to say that the payment of a moiety of the book debts as compensation is so illusory as to amount to nothing, as contended by Mr. P. R. Das. Even if it be inadequate, the grievance will be, not that no principle has been laid down in the Act as required by entry 42 in List III but, that the principle so laid down does not produce adequate compensation and there is, therefore, a contravention of the provisions of article 31(2). That defect cannot, however, be made a ground of attack in view of articles 31-A and 31-B for reasons explained above. Re Ground B : The second point urged by Mr. P. R. Das is that even if the Court does not accept the argument as to the necessity for providing for compensation being implicit in entry 36 in List II and entry 42 in List III and holds that the respondents are, by reason of the provisions of articles 31(4), 31-A and 31-B, debarred from questioning the validity of the Act on the ground that it does not provide for compensation the respondents are, nevertheless, entitled to challenge the Act on the ground of the absence of a public purpose. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the manner laid down in the clause. 126. I do not, however, see how the above observations of Mukherjea J. in any way support the arguments of Mr. P. R. Das that the existence of a public purpose is not a provision of article 31(2) but is an inherent condition of any legislation for compulsory acquisition of private property. It is significant that Mukherjea J. recognises that article 31(2) prescribes a two-fold limit. Surely, a limit which is prescribed by the articles must be a provision thereof. In any case, what is implied in the clause must nevertheless, be a provision of the clause, for the expression provision is certainly wide enough to include an implied as well as an express provision. Be that as it may, I am prepared to of further and say, for reasons I shall presently explain, that the requirement of a public purpose as an essential prerequisite to compulsory acquisition is, if anything, essentially a provision of that clause and an integral part of it. 127. Article 31 is one of a group of articles included in Part III of the Constitution under the heading Fundamental Rights . It confers a fundamental right in so far as it protects private property from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess these limitations were provisions of the article, the article would no immunity at all. I am, therefore, clearly of opinion that the existence of a public purpose as a prerequisite to the exercise of the power of compulsory acquisition is an essential and integral part of the provisions of clause (2). If the requirement of a public purpose were not a provision of article 31(2), then it will obviously lead us to the untenable conclusion that Parliament will be free under its residuary powers under article 248 and entry 97 of List I of the Seventh Schedule to make a law for acquiring private property without any public purpose at all and to the still more absurd result that while Parliament will have to provide for compensation under article 31(2) in a law made by it for acquisition of property for a public purpose it will not have to make any provision for compensation in a law made for acquisition of property to be made without a public purpose. Such could never have been the intention of the framers of our Constitution. The existence of a public purpose as a condition precedent to the exercise of the power of compulsory acquisition being then, as I hold, a Provision of art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised in entry 42 in List III, as a legislative head, are the principles for the determination of compensation and the form and manner of giving the compensation for property which is described having been acquired or requisitioned for the stated purpose. That entry cannot possibly regarded as a legislative head for acquisition property and much less is the purpose or province of that entry to lay down any requirement of a public purpose as a condition precedent for the acquisition of any property. In my opinion entry 42 in List III is of no assistance to Mr. P. R. Das for the part of his argument. Further, the reasons for which I have discarded his arguments as to the obligation to provide for compensation being implied in entry 36 in List II by itself or read with entry 42 in List III will also apply to this contention mutatis mutandis and they need not be restated here. To put it shortly, the provisions of article 31(2) which, as I have explain require the existence of a public purpose, will exclude the implication sought to be read into entry 36 in List II and entry 42 in List III. Secondly, what articles 31(4), 31-A and 31-B exclude is a challenge to the Act on the ground of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a family, nearly five and a half million people will be ruined as a result of this legislation, although the actual tillers of the soil will derive no benefit whatever therefrom, for they will remain where they are and will have to continue, as heretofore, to pay their rent, instead of to their present landlords, to the State which, they will find, is no better than a ruthless machine unsuspectible to any humane feeling. The contention is that the public purpose must be something definite, something tangible and something immediate and that there must be some indication of its existence in the Act itself and that the State cannot take private property to-day and say that it will think of the public purpose at its leisure. This leads me to a consideration of what is a public purpose within the meaning of our Constitution. 132. We have been referred to some American authorities for ascertaining the meaning and implication of public use , an expression which obviously is of a more limited important than the expression public purpose used in our Constitution. Apart from this, a perusal of the text books, e.g., Constitutional Law by Professor Willis, p. 817 et seq., will immediat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omote such public benefit, etc., especially where the interests involved are of considerable magnitude, and it is sought to use the power in order that the natural resources and advantages of a locality may receive the fullest development in view of the general welfare . 134. The learned author thereupon proceeds to discuss the more restricted meaning given to that expression. Mr. P. R. Das has drawn our attention to the decision of the Judicial Committee in Hamabai Framjee Petit v. Secretary of State for India [(1915) L.R. 42 I.A. 44.]. It should be borne in mind that the Judicial Committee in the case had to consider the meaning of the words public purposes occurring in a lease of the 19th century. Even in 1914 the Judicial Committee did not think fit to attempt a precise definition of the expression public purpose and was content to quote with approval the following passage from the judgment of Bachelor J. :- General definitions are, I think, rather to be avoided where the avoidance is possible, and I make no attempt to define precisely the extent of the phrase 'public purposes' in the lease; it is enough to say that, in my opinion, the phrase, whatever else i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely but subject to reasonable restrictions to be imposed by law in the interest of the general public under clause (5) and, what is more important, as soon as the interest of the community so requires, the State may, under article 31, deprive the owner of his property by authority of law subject to payment of compensation if the deprivation is by way of acquisition or requisition of the property by the State. It is thus quite clear that a fresh outlook which places the general interest of the community above the interest of the individual pervades our Constitution. Indeed, what sounded like idealistic slogans only in the recent post are now enshrined in the glorious preamble to our Constitution proclaiming the solemn resolve of the people of this country to secure to all citizens justice, social, economic and political, and equality of status and of opportunity. What were regarded only yesterday, so to say, as fantastic formulate have now been accepted as directive principles of State policy prominently set out in Part IV of the Constitution. The ideal we have set before us in article 38 is to evolve a State which must constantly strive to promote the welfare of the people by secu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State Government generally with regard to the agrarian policy which it may from time to time follow. It is impossible to say that there is no public purpose to support the Act. This very Bihar Act was before the Constituent Assembly when it passed article 31(4) and again when it took the trouble of amending the Constitution for saving this very Act. Would the Constituent Assembly have thought fit to protect these Acts unless it were convinced that this Act was necessary in the general interest of the community ? I find myself in agreement with Reuben J. and S. K. Das J. that these circumstances also clearly indicate that the Constituent Assembly regarded this Act as well supported by a public purpose. To put a narrow construction on the expression public purpose will, to my mind, be to defeat the general purpose of our Constitution and the particular and immediate purpose of the recent amendments. We must not read a measure implementing our mid-twentieth century Constitution through spectacles tinted with early nineteen century notion as to the sanctity or inviolability of individual rights. I, therefore, agree with the High Court that the impugned Act was enacted for a publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their holding subject to payments of the dues to the State. It is well-known that the bulk of the tenants are in arrears with their rents and once the rents fall into arrears the tenants find it difficult to pay the current rent after liquidating a part of the arrears so that while they clear part of the old arrears the current rent falls into arrear. According to annexure B (2) to the affidavit of Lakshman Nidhi affirmed on January 22, 1951, the total amount of Raiyati rent payable by the various tenants in the different circles of the Darbhanga Estate alone will exceed rupees three lacs. It is not quite clear whatever all these arrears are due from the actual raiyats in the sense of actual tillers of the soil. But leaving out from consideration for the present purposes the arrears of rent due by the tenure-holders to their immediate superior tenure-holder or to the zamindar it can safely be taken that the bulk, if not all of the actual raiyats or tillers of the soil are habitually and perpetually in arrear with the rent of their holding on account of financial stringency resulting from their chronic indebtedness. In these circumstances if the zamindaries and the tenures only are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for it might not have been very easy to presume that if the Bihar Legislature had known that these provisions of the Act might be held bad it would nevertheless have passed the other parts of the Act in that truncated form. The acquisition of the arrears of rent appears to me to be an integral part of the scheme and inextricably interwoven with it. Indeed, it may well have been that the scheme of agrarian reform was not considered by the Bihar Legislature to be at all capable of easy implementation by the State without the acquisition of the arrears of rent. As, however, I have taken the view that no part of the Act is bad for want of a public purpose, I need not pursue any further the question of the severability of the Act or refer to the judicial decisions relied on by learned counsel on both sides. Re Ground C : Mr. P. R. Das's third point is that the Act constitutes a ground on the Constitution, that is to say, while it purports to be in conformity with the Constitution, it, in effect, constitutes a defence of it. The Act, according to him, pretends to comply with the constitutional requirements in that it sets out to lay down certain principles on which compensation i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accompany the question of the zamindaries and the tenures. Where then, does this theory of fraud come in? The answer must eventually be that a moiety of arrears are taken way without compensation. Again, take the case of the acquisition of non-income- yielding properties. Why, I ask, is it called a fraud on the Constitution to take such property ? Does the Constitution prohibit the acquisition of such property ? Obviously it does not. Where, then, is the fraud ? The answer that to my mind is that it is fraud because the Act wides for compensation only on the basis of income therefore, properties which are at present income-yielding but which have very rich potentialities are acquired without any compensation at all. Similar answer becomes obvious in connection with the deduction of 4 to 12 1/2 percent of the gross assets, under the head Works of Benefit to the Rayats . On ultimate analysis, therefore the Act is really attacked on the ground that fails to do what is required by the Constitution to do, namely, to provide for compensation for the acquisition of the properties and is, therefore ultra vires. This, to my mind, is the same argument as to the absence of just compensation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined and the form and the manner in which such compensation is to be given. The argument is that the Constitution has left to Parliament or the State Legislature the duty of specifying the principles on which, and the form and manner in which the compensation is to be determined and given but the Bihar Legislature by section 3 (22) of the Act has simply provided that the amount of compensation shall be paid in cash or in bonds or partly in cash and partly in bonds and that the bonds shall be either negotiable and non-negotiable and non-transferable and be payable in forty equal instalments and has not laid down any decisive provision but has left the matter to the State Government to decide. It has, therefore, failed to discharge the duty which was expressly left to its knowledge, wisdom and patriotism. Mr. P. R. Das complains that the Legislature has shirked its responsibility and delegated this essential legislative power to the State Government to be exercised under rules made by itself under its rule-making power under section 43 (2) (p). The question of the propriety and legality of the delegation of legislative power has recently been considered by this Court in In re The De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. In my opinion there is no substance in this contention. 139. For reasons stated above, I allowed these appeals. Chandrasekhara Aiyar, J. 140. The facts which have given rise to these cases have been fully set out in the judgment just now delivered by my learned brother Mahajan J. and need not be repeated. The conclusions reached by him and Mukherjea J. have my concurrence. Ordinarily, I would have stopped with the expression of my agreement, but having regard to the importance of the question argued and the stakes involved, I desire to add a few words of my own on some of the points discussed. Article 31(1) of our Constitution provides No person shall be deprived of his property save by authority of law . 141. There are three modes of deprivation - (a) destruction, (b) acquisition and (c) requisition. Destruction may take place in the interests of public health or the prevention of danger to life or property, but with this we are not now concerned. In the case of acquisition there is an element of permanency, and in the case of requisition there is an element of temporariness. Except for this distinction, both modes stand on the same footing, as regards the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the absence of clear words showing such intention, that one man's property shall be confiscated for the benefit of others, or of the public, without any compensation being provided for him in respect of what is taken compulsorily from him. Parliament in its omnipotence can, of course, override or disregard this ordinary principle...... if it sees fit to do so, but it is not likely that it will be found disregarding it, without plain expressions of such a purpose. This principle is embodied in article 31(2) of our Constitution in these terms :- No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given. 145. We shall not here trouble ourselves with sub-clauses (3) and (4) of the article and with articles 31-A and 31- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iples are so formulated as to result in non-payment altogether, then the legislature would be evading the law not only convertly but flagrantly. There is nothing in Aliqa Begum's case that supports the argument. It was there held that under the head payment of rent there could be legislation providing for remission of rent. Payment of rent is not legal obligation of every tenure and the legislature can enact that under certain circumstances or conditions there shall be remission of rent. But as regards compensation for State acquisition, it payment is a primary requisite universally recognized by law. This is the essential distinction to remember when we seek to apply the case quoted. The last words in entry 42 form and the manner in which such compensation is to be given clearly mean that the principles determining compensation must lead to the giving or payment of some compensation. To negate compensation altogether by the enunciation of principles leading to such a result would be to contradict the very terms of the entry and such a meaning could not be attributed to the framers of the Lists. 148. This, however, does not carry Shri. P. R. Das anywhere near success. Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or provision is inconsistent with, to takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court of tribunal to the contrary each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force. When we look at the Ninth Schedule to the Amending Act, the very first item mentioned is The Bihar Land Reforms Act, 1950. 150. In the face of these almost insuperable obstacles, Shri. P. R. Das candidly admitted that he could urge nothing as regards the adequacy or the illusory nature of the compensation provided in the Act, if he was not able to convince the Court on his main point that he could challenge the offending Act on grounds other than those mentioned in Part III of the Constitution, and that there was something in entries No. 36 of the State List and No. 42 of the Concurrent List read together which imposed on the State Legislature an obligation to provide for the payment of just or proper compensation and that the non-observance of this obligation entitles him to challenge the validity of the Act as unconstitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the rayats dealt with in section 4, clause (b), and section 23, clause (f), respectively of the Act, have to be considered. 154. The taking over of arrears of rent does not seem to have even a remote connection with any question of land reform. It stands on no better footing than if the Act sought to take over the cash on hand or in the banks of the zamindars, proprietors or tenure holders. It is only an accident that the rents in question were not realised before the passing of the Act. Whether realised or not, they are his moneys due and payable to him by the riots. The consequences of vesting of estates must have some relation to the tenures themselves and have some connection, remote though it may be, with the agrarian reforms undertaken or contemplated. Supposing that we have a legislation stating that as it is necessary to eliminate rent collectors and farmers of revenue and to apportion and distribute land on an equitable basis amongst the tillers of the land and confer on them rights of permanent occupancy and also to bring them directly into contact with the State, all moneys which the proprietors had collected as and by way of rent from their estates for three yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t may reach by taxation, and also rights in action, which can only be available when made to produce money : neither of which can it be needful to take under this power. In the footnote he points out :- Taking money under the right of eminent domain, when it must be compensated money afterwards, could be nothing more or less than a forced loan, only to be justified as a last resort in a time of extreme peril, where neither the credit of the government nor the power of taxation could be made available. 156. Nicols in his work on Eminent Domain does not disagree with this view; on the other hand, he says at page 100 of Vol. I, paragraph 2. 1 (3) :- The question has arisen whether money can be taken by eminent domain and it has been held or intimated, at least in so far as a state or a private corporation is concerned, that it is not subject to such taking. The objection is not based on an implied inherent limitation upon the power of government, but upon the difficulty of effecting a taking of money that would be of any service to the public without violating the Constitution. The use for which it was needed might well be public but, as compensation must be paid in mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not the things which is sought to be condemned and its impairment, if impairment there be, is a mere consequence of the appropriation of the tangible property. In the present cases, it is untenable to state that the taking over of arrears of rent is a natural consequence of the acquisition of the estates. 159. In the latter case, a railroad company filed a suit to condemn a right of way for an elevated railroad track across the public landing at Cincinnati. The city objected on the ground that the public landing had become property dedicated to the public under an earlier contract and to allow the condemnation under a statute of Ohio was an impairment of the contract, forbidden by the 10th section of the first article of the Constitution of the United States. The court through Mr. Justice Lurton held : 'The constitutional inhibition upon any state law impairing the obligation of contracts is not a limitation upon the power of eminent domain. The obligation of a contract is not impaired when it is appropriated to a public use and compensation made therefore. Such an exertion of power neither challenges its validity nor impairs its obligation. Both are recognised, for it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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