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TMI Blog1950 (6) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... t, which was instituted prior to the enactment of the Constitution, is the Province of Bihar. Along with this suit, there have been set down for hearing a number of applications under Art. 226 of the Constitution. These applications are by zemindars who have instituted suits similar to the suit instituted by the Maharajadhiraja of Darbhanga. They too asked for injunctions restraining the State of Bihar or any of its officers from taking possession of their estates, and, on one ground or another, their applications for an ad interim injunction, pending the disposal of the suits, were refused. At a very early stage, we pointed out that, if the suit instituted by the Maharajadhiraja of Darbhanga was decreed, the State of Bihar would, presumably, refrain from taking possession of the estates of the petitioners, unless and until the decree had been reversed on appeal, and that, if, on the other band, the suit was dismissed, the applications under Art. 226 of the Constitution would, necessarily, have to be dismissed also. The learned Government Pleader subsequently assured us that the State would take the course which, we had suggested, was proper. In these circumstances we thought it un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sory Committee, to the notice of the Provincial Government. The Manager is empowered to remove mortgagees and lessees in the possession of any part of the estate, and, as a necessary corollary, to ascertain, or rather determine the amounts due to them, and to frame a scheme for the liquidation of the proprietor's debts. The main purpose of the Legislature, in enacting the Chota Nagpur Encumbered Estates Act, was to discharge the liabilities of the disqualified proprietor, and so prevent his estate passing into the hands of other persons whose acquisition of the property was likely to be resented and so cause trouble. From Mr. Reid's Settlement Report on the District of Ranchi (pp. 37-38), it appears that, in the earlier part of the 19th century, the raiyats in Chota Nagpur were much attached to their zamindars and that in several instances serious disorders had occurred when the estate of a zemindar was sold for arrears of revenue and a purchaser, who was not known and esteemed in the locality, sought to take possession of it. If, under the Chota Nagpur Encumbered Estates Act, possession was taken of estates, this was not done in exercise of what, to American jurists, is kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has been addressed to us on behalf of both parties has proceeded on the assumption that, not merely is the impugned Act part and parcel of a scheme which aims at the extinguishment or abolition of one form of property, but is itself an expropriatory measure. Mr. P.R. Das, for the plaintiff, has strongly contended that the word law as used in sub-s. (1) of S. 299, Government India Act and in cl. (1) of Art. 31 of the Constitution must be understood as meaning a general law, or, as he put it, lex terrae or the law of the land and as excluding any law passed for the express purpose of depriving an individual or individuals of their rights to property. The learned counsel referred to a passage in Blackstone's Commentaries, vol. I, p. 38, in which it was said that a particular act of the legislature to confiscate the goods of Titius......does not enter into the idea of a municipal law. and to the decision of the Supreme Court of the United States in the Trustees of Dartmouth College v. Woodword, 4 U.S.S.C.L. Ed. 629. In that case the plaintiff, in an action to recover some documents from persons who, under an Act of a State Legislature, had been constituted the trustees o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly follows it. It seems clear that, in enacting the former subsection, the British Parliament had in view a case in which the property of a particular individual or particular individuals was to be acquired by the State. In such a case, it was made a condition prerequisite to the acquisition that compensation, meaning thereby the value of the property in money to the owner, should be paid and that, when acquired, the property should be used for public purposes; that is, that the use to be actually made of it by the State or by the local body or company for which it was acquired should subserve the interests of the community and not those of an individual or a number of individuals. In enacting the latter, the British Parliament would appear to have had in mind a case in which the property of every individual in a particular class or classes was to be acquired or rather a case in which a certain species of property in land was to be extinguished or modified by legislative enactment. It is significant that neither the word compensation nor the words for public purposes appear in sub-s. (3), and it may, I think, well be that the British Parliament was not unmindful of the Irish La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that sub-s. (3) of s. 299, Government of India Act dealt with nothing more than a matter of procedure. In the Instrument of Instructions to the Governor, the Governor was directed not to withhold his sanction to the introduction of such a bill as is referred to in the sub-section, but in every case to reserve it, if and when it was passed by the Legislature for the consideration of the Governor General. The Governor General was similarly required by his Instrument of Instructions to reserve for the assent of His Majesty any law altering the permanent settlement. Mr. Das contended that, by reason of what was contained in sub-s. (2), it was implicit that any bill referred to in sub-s. (3), should contain provisions for the payment of compensation. I have no doubt myself that a British Secretary of State would have advised His Majesty to refuse his assent to an Act expropriating proprietors of estates or tenure holders unless the Act provided for adequate compensation, that compensation not necessarily, however, taking the form of immediate cash payments. It is obvious that, if compensation in the form of hard cash had had to be paid to the vast number of proprietors and tenure holder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmer in Art. 19(5), and the latter in Art. 31. These two articles, it is clear, deal with matters which are quite separate and distinct. Clause (1) of Art. 31, in terms reproduces sub-s. (1) of s. 299, Government of India Act. Clause (2) of does not, in terms, reproduce the provisions contained in sub-s. (a) of S. 299, but such modifications, as have been made, are purely verbal and cl. (2) has precisely the same effect as had sub-s. (2) of S. 299. The words for public purposes and the word compensation which occur in cl. (2), as they occurred in sub-s. (2) of S. 299, must be construed in the manner in which they have always hithereto been construed by the Courts in India and the Courts in Great Britain and in Dominions of the British Commonwealth. In the course of the argument, reference was frequently made to Cooley's Constitutional Limitations. At page 1131, volume II of the 8th edition of this work, there occurs the following passage: It is certain that there are very many cases in which the property of some individual owners would be likely to be better employed or occupied to the advancement of the public interest in other hands than in their own; but it does not f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, such a restriction as exists on the exercise of the power is not a legal, but rather a moral and political restriction. The other subsidiary point taken by Mr. P.R. Das is that the words it shall not be called in question are words of futurity and that, as the suit of the plaintiff was instituted prior to the enactment of the Constitution, the certificate is of no avail to the defendant. The decisions on which Mr. Das mainly relied in this part of his argument were Smithies v. National Association of Operative Plasterers, 1909 1 K.B. 310 at p. 319 : (78 L.J.K.B. 259) and Moon v. Durden, (1848) 154 E.R. 389 : (12 Jur 138). In the former, the Court of Appeal had to construe the words an action against a trade union....shall not be entertained , and they declined to construe them as if they meant shall cease to be entertained . In the latter, an action was brought to recover money won on a wagering contract prior to 8th August 1815, on which date a statute was enacted that: All contracts and agreements by way of gaming or wagering shall be null and void and that no suit shall be brought or maintained in any Court of law or equity for recovering any sum of money or valua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been inserted in certain items in the legislative lists and also, perhaps, in consequence of the decision of Bhagwati J. of the Bombay High Court in Tan Bug Taim v. Collector of Bombay, A.I.R. 1946 Bom. 216 : (47 Cri. L.J. 594). The taking of possession contemplated in cl. (2) of Art. 31 is a taking of possession which entirely excludes the rightful owner. But, under the impugned Act, the manager is no more entitled to exclude the plaintiff than is a manager of an estate, to which the Chota Nagpur Encumbered Estates Act has been applied, entitled to exclude the disqualified proprietor. On the contrary, under the impugned Act it is the proprietor of the estate or the tenure-holder who is entitled to exclude the Manager from part of the property. The impugned Act does, in my opinion, exactly what it purports to do; that is, it deprives the plaintiff of the right to manage his property or rather the greater part of his property. There are numerous instances in which the State or an official or a Court of the State is by law empowered to take possession of and either manage or arrange for the management of property. The earliest enactments on the subject, which I have been able t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw? When this point was put to the learned Government Pleader, Mr. Lalnarayan Sinha relied on the word 'land' in item 21 in List II to the Government of India Act and on the decision of their Lordships of the Judicial Committee in Megh Raj v. Allah Rakhia, 74 I.A. 12 : (A.I.R. 1947 P.C. 72). It is true that, in that case, their Lordships pointed out that the words that is to say, which follow the word 'land' in Item 21, were not words of restriction, but rather words of explanation or illustration giving instances which may furnish a clue for particular matters. It is, I think, not without significance that, among the matters referred to in the item after the words that is to say, are the relation of landlord and tenant, Court of Wards and encumbered and attached estates. The instances in which, hitherto, the State or one of its officers or Courts has taken possession of private property and either managed it directly or arranged for its management will, I think, on examination, be found to code, quite naturally, under one or other of these or other items in the legislative lists. When, hitherto, private property has been taken charge of by the State, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judicial Committee in Megh Raj v. Allah Rakhia, 74 I.A. 12 : (A.I.R. 1947 P.C. 72). What, however, was really decided there was that mortgages of agricultural land, which were not specifically mentioned in any of the items in the legislative lists, might fairly be regarded as coming within the expression land in Item 21. Such transactions were so numerous and of such importance to the community that their Lordships took the view that it could not possibly have been the intention of the British Parliament that neither the Provincial Legislature nor the Central Legislature should be competent to enact such a law as was challenged by the plaintiff in that case, unless and until a notification under s. 104, Government of India Act had been issued by the Governor-General. When, however, the same process of reasoning is applied to the present case, the conclusion to be arrived at is, in my opinion, diametrically the opposite. It has to be remembered that the Constitution embodied in the Government of India Act, 1935, recognised the inviolability of private property including private property of all kinds in land. It is true that sub-s. (3) of S. 299 of the Act provided for the enactmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons are either reasonable or imposed in the interests of the general public. These latter words are, of course, words of very wide import and, unlike the words for public purposes, as they occur in cl. (2) of Art. 31, have not yet received a well-settled judicial interpretation. If the object of the impugned Act had merely been to confer power on the executive to take over the management of estates and tenures in order to prevent waste or the disappearance of village papers or the like during some comparatively short interval, which was expected to elapse before the estates or tenures could be acquired permanently by the State, the Act might, possibly, have been supported. But it is impossible to support the Act, as it stands, even if one were prepared to construe the words in the interests of the general public as equivalent to in pursuance of State policy, and such an interpretation is not, in my opinion, justifiable. 8. The learned Government Pleader is much too accomplished a lawyer and much too fair an advocate to have contended that, whatever view we might take as to the real nature of the impugned Act, the certificate granted by the President was an insuperable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssembly was that the Courts should implicitly obey an Act of this kind. This, in my considered judgment, is not a measure of expropriation in which any question of compensation really arise?, but a measure under which the plaintiff's rights in his property are to be subjected to unreasonable restrictions, and moreover, it is a law which the Provincial Legislature never had jurisdiction to pass. In that view of the matter, this Court is at liberty, and, indeed, is bound, to pronounce it to be an unconstitutional law. For these reasons, I would decree the suit with costs, and would give the plaintiff the declaration and also the injunction for which he asks. As I have already said, the connected applications under Art. 226 of the Constitution will be dismissed, but, in the circumstances, without costs. Sinha, J. 9. This suit and the miscellaneous judicial cases have been heard together, as they raise some common questions of law bearing on the interpretation of the Government of India Act of 1935, as amended by the India (Provisional Constitution) Order, 1947, and the Indian Constitution. The suit as well as the applications for issue of writs of mandamus or other writs are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinary civil rights of getting redress in the civil Courts against any serious acts of mismanagement of the manager that the Executive Government have been vested with powers to abandon, compound and compromise claims, pending in civil Courts; that the Act is expropriatory in its nature without making any provision for compensation; that under the Act, the proprietor or the tenure-holder, though not disqualified by any reason, or under any specific provisions of the Act, has been deprived of his legal rights incidental to ownership; that the manager appointed under the Act is vested with many wide powers, and, in many respects, the jurisdiction of the civil Courts has been ousted; that the Executive Government have been vested by the Act with arbitrary and unlimited powers to deduct cost of management and other expenses from the income of the owner of the property; that the Act does not mention any public purposes for which the management of the estates or tenures is proposed to be taken over; and that the Provincial Government have no right to take over management of the property of a proprietor or a tenure-holder. It is also stated that the proprietor or the tenure-holder has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not maintainable; that the suit is barred by Ss. 42 and 56(d), Specific Relief Act; that the notice under S. 80, Civil P.C., was not a notice as required by the section; that the Province of Bihar not being a legal entity or a body corporate, the suit for a permanent injunction did not lie; that the statements contained in para. 1 of the plaint were not admitted; and that the properties had neither been specified nor described in the plaint, and hence the suit could not proceed. In para. 7 of the written statement, it was contended that the provisions of the Act summarized in paras. 2 to 9 of the plaint were within the legislative competence of the Provincial Legislature, and that the defendant was entitled to act in accordance with those provisions. With regard to the allegations in para. 10 of the plaint, the defendant submitted that the plaintiff continued to be the owner; that he had not been deprived of his essential rights of ownership, and, consequently, the question of payment of compensation did not arise; that, under the Act, the plaintiff's right of management had been temporarily suspended ; that the jurisdiction of the Courts has been taken away by the legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. 12. On 6th February 1950, the learned Subordinate Judge framed the following issues: 1. Has the plaintiff any cause of action or right to Sue the defendant? 2. Is the suit as framed maintainable? 3. Is the suit barred by Ss. 42 and 56(d) Specific Relief Act? 4. Is the Bihar State Management of Estates and Tenures Act unconstitutional and ultra fires? If any provisions of the Act be unconstitutional, whether the same is severable? 5 Whether the provisions of the Act amount to acquisition or infringement of the right of ownership of the plaintiff? 6. Is the plaintiff entitled to the relief sought for? 7. To what relief, if any, is the plaintiff entitled? 13. Daring the pendency of the cage before us an application for amendment of the plaint was made on the ground that during the pendency of the suit, the Constitution was adopted by the Constituent Assembly, and came into force on 26th January 1950. Article 19(1)(f) read with Art. 13(1) of the Constitution-it was contended on behalf of the plaintiff-showed that the impugned Act was void. The defendant also made an application for filing an additional written statement as a consequence of the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with the established practice, would not try to enforce the provisions of the statute which had been declared void by this Court, and that they would stay their hands until the matter was determined by the Supreme Court, in the event of an appeal from our decision. The learned Government Pleader, who argued the case on behalf of the State of Bihar and the learned Advocate General, who represented the State in soma of the other miscellaneous judicial cases, also intimated to us that the State Government would, in the usual course, abide by the decision of this Court until and unless reviewed by the appellate Court. Hence, we did not hear arguments on the powers of this Court to issue any of the writs prayed for in the several applications which have been heard along with the suit. In either view, those applications would be dismissed, and costs would have to be adjusted according to the decision on the main issue before us. 17. Before embarking upon a discussion of the point bearing upon the validity of the Act, it is convenient at this stage to indicate, in brief outline, the nature, scope and purpose of the impugned Act which, as its title indicates, is to provide for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 0 0 0 By Order of the Governer of Bihar. S.P. Sinha, Secretary of Governor. The other definitions of S. 2 are more or less, on the same lines as the definition of those terms in the Tenancy Acts. The consequences of placing an estate or a tenure under the management of the Provincial Government are laid down in S. 4. It is better to quote the necessary portions of the section as follows: (a) the proprietor or tenure-holder shall cease to have any power of management of his estates or tenure; (b) subject to the provisions Ss. 7, 8, 9, 10, 11 and 12, the Manager shall take charge of such estates or tenures together with such buildings, papers and other properties appertaining to the estates or tenures, as in the opinion of the Manager are essential for the proper management of the estates or tenures....; (c) the proprietor or tenure-holder shall be incompetent to mortgage or lease the estates or tenures or any portion thereof or to grant valid receipts for the rents and profits arising or accruing therefrom including arrears of rents and profits....; (d) all rents and profits arising or accruing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed time, the claim shall be barred. Under S. 16, the Manager is constituted the authority to determine the principal amount of such claims and interest, if any, due, and the Manager has been vested with wide powers to scale down the principal or the interest or both. An appeal is provided by S. 27 from an order passed by the Manager, and the order of the Manager or of the appellate Court, in the event of an appeal, has been declared to be final, and such orders are not to be questioned in any Court. Section 18 provides for the preparation of a scheme for liquidation of debts and liabilities of a proprietor or a tenure-holder after they have been determined by the Manager or by the appellate authority, as aforesaid. The claim has to be sanctioned, and such claim may be revised and, subsequently, modified, if so thought necessary, by the Provincial Government. Section 24 renders all arrears of rent payable to the Manager recoverable as a public demand. Section 25 days down the priorities in the manner of disbursement of moneys collected by the Manager, in the following order; (1) payment of Government revenue and cesses and other public demands or rents payable to the superior landlo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of the impugned Act were not meant, either directly or indirectly, to augment revenues of the Government. After the notification under S. 8 of the Act, the proprietor or tenure-holder ceases to have any power of management in respect of his property which vests in the manager. The proprietor or the tenure-holder, as the case may be, even after the vesting of the management in the Provincial Government through the manager, continues to have the power to sell or to make a gift or to exchange or to enter into any other kind of transaction involving an out and out transfer of the property. He is only debarred for the time being during the period of management from mortgaging or leasing his property or any portion thereof. As a result of the vesting of the management in the manager, a proprietor's or tenure holder's right of management in all lands in his khas possession, whether homestead or containing buildings, or culturable areas or mines, is not affected. The manager has also been vested with the right to remove mortgagees and lessees from possession of the property, management of which has been vested in the manager as a result of the notification under the Act. All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral's Act, VI [6] of 1876). This Act was passed with a view to safeguarding the interest of a holder of immovable property in Chota Nagpur who may be suffering under a disability, being a minor, or of unsound mind, or an idiot, or of a person who is on the verge of bankruptcy, whose property is under attachment or a proclamation of sale. This Act, apparently, was intended to apply to a special class of people who were, or had proved themselves to be, incapable of properly managing their affairs, and on whose behalf the Government intervened to manage the property through a Manager. But the impugned Act goes much further than the Chota Nagpur Encumbered Estates Act in so far as it does not make any such distinction. For ought we know, the plaintiff's estate in the present case may be one of the best managed estates, and certainly is not in any danger of being sold in execution of any decree, or of being mismanaged as a result of wasteful extravagance likely to dissipate his property . It was suggested at the Bar on be. half of the plaintiff that his estate is much better managed than it can possibly be by a Deputy Magistrate or any other functionary discharging the dutie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer, alienation and devolution of agricultural land; land improvement and agricultural loans; colonization; Courts of Wards; encumbered and attached estates; treasure trove. It was also argued that this item 21 may have to be read along with item 9 of the same List which relates to compulsory acquisition of land . In the pleadings of the parties the position taken by the plaintiff was that the impugned Act had the effect of acquisition of land without making any provision for compensation and without the acquisition being intended for a public purpose. On the other hand, the case on behalf of the Government as disclosed in the written statement is that it was not an acquisition, and that, therefore, the question of compensation was wholly irrelevant. According to the written statement, the impugned Act had only the effect of temporarily suspending the plaintiff's right of management and his right of dealing with the property. 21. In this connection, the question naturally was mooted at great length whether the impugned Act could coma within the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the same sense in which the Land Acquisition Act aforesaid had used the expression acquisition . That it is permissible to do so is clear from the following observations of Lord Dunedin in the case of Attorney-General v. Ds Keyser's Royal Hotel, 1920 A.C. 508 at p. 558 : (89 L.J. ch. 417): Now, just as the statutes must be interpreted in view of what the rights and practices antecedent to them had been, so we must look at the Defence of Realm Act in view of the law as it stood previous to its passing. It is absolutely necessary, with reference to the provisions of the Land Acquisition Act, that acquisition of property, either temporary or permanent, must be for a public purpose, and must provide for compensation to the person deprived of his property, either temporarily or permanently. The plaintiff would characterize the impugned Act as an instance of an attempt by Government to acquire the plaintiff's property, or a certain right in property, without its being meant for a public purpose, and without making any provision for compensation to the party whose property has been so dealt with by the statute. Mr. Das, on behalf of the plaintiff, made repeated referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, or divested, of his freehold or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land. And by a variety of ancient statutes it is enacted, that no man's lands or goods shall be seized into the king's hands, against the great charter, and the law of the land..... His argument further was that the Land Acquisition Act of 1894 and the other statutes relating to the subject of acquisition, which it replaced, were all in consonance with the laws of England, and specifically provided that such acquisition must be for a public purpose, or a purpose analogous to that, and only upon compensation being made to the party deprived of his property, either temporarily or permanently. Mr. Das's contention further is that law within the meaning of sub-s. (1) of S. 299, quoted above, can never mean law of a confiscatory nature like the impugned Act applicable to a limited class of persons, but law applicable generally to all citizens of the State, so that the impugned Act, which discriminated against a particular class of persons, and intended to deprive them of their valuable rights in property, is not what is intended by sub-s. (1). In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 I.A. 12 at p. 20 : (A.I.R. 1947 P.C. 72): .....Item 21 is part of a constitution and would on ordinary principles, receive the widest construction, unless for some reason it is cut down either by the terms of Item 21 itself or by other parts of the constitution, which has to be read as a whole. As to Item 21, 'land,' the governing word, is followed by the rest of the item, which goes on to say, 'that is to say.' These words introduce the most general concept 'rights in or over land.' 'Bights of land' must include general lights like full ownership or leasehold or all such rights 'Bights over land' would include easements or other collateral rights, whatever form they might take. These follow words which are not words of limitation but of explanation or illustration, giving instances which may furnish a due for particular matters...... The learned Government Pleader also relied upon the decision of their Lordships of the Judicial Committee in the case of Jagannath Buksh Singh v. United Provinces, 73 I.A. 123 : A.I.R 1946 P.C. 127), in which the United Provinces Tenancy Act of 1939 was sought to be declared null and void on the ground t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay cover most of the provisions of the impugned Act in so far as it deals with collection of rents, transfer or alienation of land, or makes provisions analogous to those of the Encumbered Estates Act, as discussed above. The pith and substance of the impugned Act is to deprive proprietors and tenure-holders of their valuable right to manage their property, irrespective of whether they are disqualified persons by reason of minority, or unsoundness of mind, or SEX, or other physical defects, or infirmities, rendering them incapable of managing their own property. In other words, even though the provisions of the Court of Wards Act (Bengal Act IX [9] of 1879), or of the Chota Nagpur Encumbered Estates Act, referred to above, do not justify the taking over of management of property by Government, or an official appointed by Government, owners of property are to be deprived of their right to manage their property, or to dispose of their property to their best advantage. Such wide powers are not, in my opinion, within the contemplation of Item 21 of List II of Sch. 7, Government of India Act, 1935, as amended. 25. Mr. P.R. Das, on behalf of the plaintiff, laid great stress on the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t expressly imposes two conditions on every such acquisition. It must be upon just terms, and it must be for a purpose in respect of which the Parliament has power to make laws.........Property, in relation to land, is a bundle of rights exercisable with respect to the land. The tenant of an unencumbered estate in fee simple in possession has the largest possible bundle. But there is nothing in the placitum to suggest that the legislature was intended to be at liberty to free itself from the restrictive provisions of the placitum by taking care to seize something short of the whole bundle owned by the person whom it wa3 expropriating......: It would, in my opinion, be wholly inconsistent with the language of the placitum to hold that, whilst preventing the legislature from authorizing the acquisition of a citizen's full title except upon just terms, it leaves it open to the legislature to seize possession and enjoy the full fruits of possession, indefinitely, on any terms it chooses, or upon no terms at all. In the case now before us, the Minister has seized and taken away from Dalziel everything that made his weekly tenancy worth having and has left him with the empty husk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment through the machinery provided by the statute. After reviewing the precedents, Lord Dunedin summarised them in these words: The first period contained instances of the acquiral of private property for the purposes of defence by private negotiation, in all of which, it being a matter of negotiation, there is reference to the payment to be offered for the land taken. With the second period we begin the series of statutes which authorize the taking of lands, and make provision for the assessment or compensation, the statutes being, however, of a local and not of a general character, dealing each with the particular lands proposed to be acquired. The third period begins with the introduction of general statutes not directed to the acquisition of particular lands, and again making provision for the assessment and payment of compensation. (Page 524). Lord Atkinson, in the course of his speech, after referring in great detail to the provisions of the statute under which the property in question had been taken possession of, made the following observations, which are quite pertinent to the point now in controversy before us: There is nothing in the statute to suggest that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inconsistent with the claim of a Royal Prerogative right, such right can no longer be enforced (p. 576). 27. I have made these extensive quotations from the decision of the House of Lords to show the course the law has taken in England since early until the enactment of the law similar to the Land Acquisition Act in India, referred to above. The Statute law in England has followed the well-established rule of the common law that a citizen shall not be deprived, either temporarily or permanently, of his property without due compensation being made, and only for the purpose of serving the interest of the community as a whole, and not merely for enabling the Government to follow a particular policy. Hence, under the British common law as crystallised later in statute law, for example, the Act of 1842 (6 and 6 Victoria, chap. 94), the notion of acquisition or occupation of private property by Government is inextricably inter-woven with the two prerequisites of public purpose and making of compensation to the party deprived. In English law, as I know it, one can-not think of acquisition or occupation of a citizen's property by, or on behalf of, the Government for purpose other t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Provincial Legislature as contained in the Government of India Act of 1935, as amended in 1917 as a result of the Indian Independence Act. 28. I will now examine the position on the assumption that I am wrong in my opinion that the impugned Act is beyond the competence of the Bihar Legislature with reference to item 21 read by itself or read in conjunction with Item 9 of List II of Sch. VII. If the Bihar Legislature has been empowered by those provisions to make law of the kind under discussion, the next question naturally arises whether the power aforesaid is not subject to the restraint on power contained in S. 299 of the Government of India Act of 1935. As already indicated, sub-s. (1) of S. 299 is a general guarantee of the right of property vested in a citizen of British India, In this connection, reference may be made to the Report of the Joint Parliamentary Committee, Para. 369: We think that some general provision should be inserted in the Constitution Act, safeguarding private property against expropriation, in order to quiet doubts which have been aroused in recent years by certain Indian utterances. It is obviously difficult to frame any general provision with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it does not enlarge the powers of the legislature but only provides an additional barrier against introduction of expropriatory legislation. Hence, that sub-section need not detain us. I have already indicated that sub-s. (4) in meant to have exiting law like the Land Acquisition Act intact. Subsection (5) only defines land for the purposes of this section, and gives a wide legal significance to it. 30. It is noteworthy that sub-s. (2) of S. 299 assumes that the compulsory acquisition is for public purposes. The only condition precedent prescribed for such acquisition is provision for payment of compensation. Hence, it is not accurate to say that there are two conditions attaching to a compulsory acquisition of land, namely, (1) that it should be for public purposes, and (2) that there should be provision for compensation. The words of sub-s. (2), in my opinion do not justify the construction that public purpose is a condition of the acquisition, rather it is inherent in the very notion of acquisition. 31. Is the impugned Act an instance of the exercise by the Provincial Legislature of its power to make any law authorising the compulsory acquisition for public purposes o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on given of the right of eminent domain implies that the purpose for which it may be exercised must not be a mere private purpose; and it is conceded on all hands that the legislature has no power, in any case, to take the property of one individual and pass it over to another without reference to some use to which it is to be applied for the public benefit. 'The right of eminent domain', it has been said, does not imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation, where the public interest will be in no way promoted by such transfer. 32. Mr. P.R. Das for the plaintiff, contended that the impugned Act does not in terms, say that the legislation was for a particular public purpose, and that, even construing the provisions of the Act as a whole, there is no indication that it was for a public purpose. On the other hand, the learned Government Pleader contended that it was for a public purpose. He further contended that, though the Act was not in exercise of the State's right of eminent domain as understood in America, or of police powers, it was in pursuance of a policy of the Government t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the Act. But, in my opinion, all those observations have no application to the present controversy, inasmuch as they were made with reference to taxing statutes. Taxation is the special power of Government which raises taxes through the legislature, apparently for the purposes of the State. Naturally, is such a legislation, the public purposes being apparent, the party challenging the law must clearly make out the invalidity alleged. Mr. P.R. Das, on the other hand, pointed out the difference between a legislation in exercise of the State's power of eminent domain and that in exercise of its power to levy taxe3. He referred to the following observations in Cooley's Constitutional Limitations, vol. II, pages 1119-20: The right to appropriate private property to public uses lies dormant in the State, until legislative action is had, pointing out the occasions, the modes, conditions and agencies for its appropriations. Private property can only be taken pursuant to law: but a legislative Act declaring the necessity, being the customary mode in which that fast is determined, must be held to be for this purpose 'the law of the land', and no further finding or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the surplus, if any, to the owner of the property at the end of each financial year, subject, though it is, to certain deductions by the Manager. The learned Government Pleader argued, though rather half-heartedly, that, though the payment of the allowance, or of the surplus, is not made compulsory under the Act, and is made dependent upon so many contigencies, still those payments may be justly characterized as compensation. In my opinion, this argument on behalf of the Government is not well-founded. In the first instance, in their written statement, the Government had not claimed that it is acquisition of property that has been effected by the impugned Act, and, therefore, no question of compensation could arise on that pleading secondly, the owner's income from the property, in a very attenuated form, may be paid to the owner of the property, if the other items of expenditure, which have a higher priority, as indicated in S. 25, have been fully met. Here, I may point out that the whole scheme of the Act has been conceived in such a way as completely to shut out the idea of acquisition of property by Government. It was not a part of the Government's case that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, 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 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 cl. (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. (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 be the consideration of the President and has received his assent, then, notwithstanding anything in this Constitution, the law so assented to shall not be called in question in any Court on the ground that it contravenes the provisions of cl. (2). (5) Nothing in cl. (2) shall affect- (a) the provisions of any existing law other than a law to which the provisions of cl. (6) apply, or (b) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sch. VII of the Constitution. The learned Government Pleader, as already indicated, relied most emphatically on the power of the state to take possession of property . But taking possession , under Art. 31 of the Constitution, has reference obviously to the power of requisition added to the Items of the two Lists in Sch. 7 of the Constitution. But can it be said that the impugned Act has in contemplation requisitioning of property? All the arguments against holding that the Act empowered acquisition of property apply with greater force to this argument of the Government Pleader. No state of emergency is declared to have existed to justify such a scheme of general requisitioning of property. 35. It is manifest that, if I am right in coming to the conclusion that the impugned Act was ultra vires of the Provincial Legislature under the Constitution Act of 1935, the same consideration must apply to the new Constitution which came into force on 26th January 1950, subject, of course, to the certification clause, namely, cl. (6) of Art 31 of the Constitution. It was argued on behalf of the Government that, since after the coming into force of the Constitution, the Courts are deba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Court to go into the question whether the President has or has not exceeded the power given to him by the Constitution. Mr. Das argued that it is not a case of the Constitution vesting the President with unlimited power of certification which would have the effect of making it non-justiceable. 37. Mr. Das argued that, so far as the suit was concerned, it had been instituted, as already indicated, on 22nd December 1949, before the Constitution came into effect. He contended that the rights of the plaintiff claimed in the suit could not be affected by the Constitution, and, therefore, the certification by the President was of no avail, so far as the present plaintiff is concerned. He made reference to the decisions in the Midland Rly. Co. v. Annie Pye, (1861) 142 E.R. 419 : (30 L.J.C.P. 314), Moon v. Burden, (1848) 154 E.R. 389 at p. 398 : (12 Jur. 138), Knight v. Lee, (1893) 1 Q.B. 41 : (62 L.J.Q.B. 28), Young v. Adams, 1698 A.C. 469 : (67 L.J.P.C. 76), Smithies v. National Association of Operative Plasterers, (1909) 1 K.B. 310 : (78 L.J.K.B. 259), Henshall v. Porter, 1923 2 K.B. 193 : (92 L.J.K.B. 866) and other cases. In my opinion, there is no substance in this contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned Act may not have as its objective the acquisition of property, it certainly had the objective of taking possession of estates and tenures. But taking possession occurs in Art. 31(2) which does not contain the power of the State Legislature but is a restraint on that power. The power is contained in the Items in List II, of sch. VII which, but for the addition of the word requisition , is in the same terms as in the previous list under the Government of India Act of 1935. Requisition , as I understand the word, implies the taking of temporary possession of private property by the State for its own purposes of State, like the defence of the realm, etc., in time of emergency, e.g., war or disturbance of internal peace by revolt or insurrection. We are familiar with the examples of exercise of this power during the last World War, in the shape of the Defence of India Act and Rules framed thereunder, as also the many orders passed by the Provincial Government. Certainly the term requisition cannot apply to the impugned Act, if the term acquisition cannot apply to it. Hence, all the considerations, already referred to in relation to the Government of India Act of 1935, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cornea under Eight to Property. Hence, according to the well-established rule of interpretation, where the same statute makes general provisions in respect of a particular subject-matter, and makes specific provisions with respect to special category, the latter must prevail over the general. It is also well settled that different provisions of the same statute, which are apparently inconsistent with each other, should be so construed as to give effect to all the provisions, so as to avoid a repugnancy. Applying these general rules to the provisions of Part III relating to Fundamental Rights, containing both Arts. 19 and 31, the position appears to be that a citizen may be deprived of his property by the State either taking possession of it or acquiring it for public purposes, if provision is made for making compensation to the person deprived of his property, or for determining the amount of compensation according to certain prescribed rules. But then intervenes cl. (6) of Art. 31 providing for certification by the President. The terms of the President's certificate Lave been quoted above. As already pointed out those terms are not wide enough to cover each and every contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guaranteed rights? The restrictions imposed by the impugned Act on the right of private property cannot be said to be reasonable, inasmuch as they leave the owner of the property practically without any rights during the period of State management without conferring any corresponding benefits upon him. Another essential ingredient in sub-cl. (6) is that the restrictions should be in the interests of the general public or for the protection of the interests of any Scheduled Tribe. The impugned Act does not pretend that it is for the protection of the interests of any Scheduled Tribe. But are the restrictions in the interests of the general public? I have already discussed, at some length, the question whether the impugned Act was intended for a public purpose, and come to the conclusion that it was not so intended. If I am right in that conclusion, it is manifest that the restrictions cannot be said to be in the interests of the general public Hence, the provisions of cl. (5) of Art. 19 do not save the impugned Act from being invalid under the general provisions in Art. 19(1)(f). 41. Mr. Das also argued that the certification by the President was a fraud on power, and made refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise of the powers conferred by sub-s. (1) of S. 3 of the impugned Act, was mane on 18th November 1949 and published in the Bihar Gazette, Extra-ordinary, of 25th November 1949. This notification purported to say that the estate, known as the Darbhanga Raj Estate, of which the plaintiff is admittedly the proprietor, was placed under the management of the Provincial Government for a period of twenty years, and the management was to vest in one Mr. A.J. Khan, Additional Collector of Darbanga Similar notifications were issued in respect of other estates or tenures, which are the subject-matter of the miscellaneous cases heard along with the title suit. 46. On the coming into force of the Constitution of India on 26th January 1950, referred to in the Constitution as the commencement of the Constitution, the impugned Act was certified by the President of India in exercise of the powers conferred by cl. (6) of Art. 31 of the Constitution of India. This certificate was publish-din notification No. 43/3/50-judicial, dated 11th March 1950. The certificate repeats the words of cl. (6) of Art. 31, and states that the said Act (meaning the impugned Act) shall not be called in question in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson who shall be an officer not below the rank of a Deputy Collector, to be called the Manager, who will stand responsible in law for fidelity in the discharge of the entire duties of management disposal, realisation and restoration with regard to the estate under his care vide Hukum Chand v. Ran Bahadur Singh, 51 I.A. 208 at p. 214 : (A.I.R. 1924 P.C. 156). 48. Section 4 enumerates the consequences of the placing of an estate or tenure under the management of the Provincial Government in six clauses, numbered (a) to (f); the important of these consequences are: (a) the proprietor or tenure-holder shall cease to have any power of management of his estate or tenure; (b) subject to certain other provisions, the manager shall take charge of such estates or tenures to together with such buildings, papers and other properties appertaining to the estates or tenures as in the opinion of the manager are essential for the proper management of the estates or tenures; (c) the proprietor or tenure-holder shall be incompetent to mortgage or lease the estates or tenures or any portion thereof or to grant valid receipts for the rents and profits arising or accruing therefrom including arrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claims by secured creditors and other persons in possession of the estate or tenure, determination of liabilities and preparation of a scheme for their liquidation. Chapter VI deals with filing of claims by creditors other than secured creditors. Chapter VII contains only one section which affords protection from sale for arrears of Government revenue. 51. Chapter VIII deals with the management, and some of the provisions in this Chapter must be read in full. Section 22 states that every manager shall manage the property committed to him diligently and faithfully and shall, in every respect, act to the best of his judgment. Section 23 states, inter alia, that every manager shall continue liable to account to the Provincial Government, after he has ceased to be manager, for his receipts and disbursements during the period of his management. Section 25 is important: it shows how the monies received by the manager in respect of the estates or tenures shall be applied, and for what purposes. The scheme of the section is that certain purposes, nine in number, for which the monies received by the Manager can be applied, are mentioned in a particular order; that order gives a priority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fere or have the effect of interfering with such management by the Provincial Government. Chapter XII deals with suits and appeals by and against a proprietor or tenure-holder during the management of the estate or tenure by the Provincial Government, and chap. XIII gives the Provincial Government power to relinquish management at any time. 55. In chap. XIV, S. 34 gives the power to appoint a new Manager, and S, 37 provides for delegation of powers. Chapter XV deals with the power to make rules, and chap. XVI deals with penalties and amendments. 56. I had failed to notice that S. 29 in Chap. X gives the proprietor or tenureholder a right to inspect the audited accounts of his estate or tenure once a year or cause the same to be inspected at the end of every year. The proprietor or tenureholder has no remedy if the accounts are not audited, and the right to inspect the audited accounts may be rendered illusory if the accounts are not audited every year. If the proprietor or tenure-holder discovers any irregularity or defect in maintaining the accounts or in managing the estates or tenures, he may bring the matter to the notice of the Provincial Government through the Advisory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion. At the time of the enactment of the impugned Act, the constitution charter was the Government of India Act, 1935, as amended up to that date and as modified, adapted or varied by the Indian Independence Act of 1047, and the India (Provisional Constitution) Order, 1947. The question of legislative competence of the Bihar Legislature which made the impugned Act has, therefore, to be considered with reference to the provisions of the Government of India Act, 1935. Mr. Lalnarain Sinha appearing for the State of Bihar, has addressed us as to the way in which such a question has to be approached. So far back as 1878, in the celebrated case of Queen v. Burah, 5 I.A. 178 : (4 Cal. 172 P.C.) Lord Selborne indicated the proper way of approaching such a question. He said: The Indian Legislature has powers expressly limited by the Act of the imperial Parliament which created it, and it can, of course, do nothing beyond the limits which subscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have plenary powers of legislation as large, and of the same nature as those of Parliame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for his bold statement . As we know, history has settled it that the King in Parliament is supreme in England, and the Judges must obey the statute. But the idea that a statute, contrary to common right or reason, is void, and that it pertains to the Judges to apply the test, entered into the American political heritage and exercised a great influence in the incorporation of constitutional guarantees in a written Constitution and in promoting the practice of judicial review of legislation. 60. There cannot be any doubt, however, that it is the duty of the Court to pronounce on the validity of a law (when such a question really arises for determination), made by a legislature whose powers are created, controlled or limited by a written, constitutional instrument. Writing on the power of the federal judiciary under the Constitution of America, Hamilton wrote in the Federalist (No. 78): The interpretation of the laws is the proper and peculiar province of the Courts A constitution is, in fact, and must be regarded by the Judges, as a fundamental law. Is therefore belongs to them to ascertain its meaning, as well as the meaning of any particular Act proceeding from the legislativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he mortgage of or is a charge on, such estates or tenures or any portion thereof; and (6) the prevention of the estate or tenure being sold or attached in respect of any debts or liabilities except for or in respect of debts due, or liabilities incurred, to the Crown. 62a. It has been contended by Mr. Lal Narain Sinha that in pith and substance, the impugned Act merely provides for possession of estates and tenures, and does not amount to a compulsory acquisition of land. He has referred us to item 21 of List II in Sch. 7, Government of India Act. 1935, and has contended that that item, supplemented, if necessary, by item 2 of List II and items 4, 8, 9 and 10 of List III, completely covers the impugned Act. It is pointed out that under s. 100, Government of India Act, 1935. the Bihar Legislature had full power to make a law with respect to any of the matters enumerated in lists II and III. It is further pointed out that no question of inconsistency or repugnancy to any existing Indian law or earlier federal law can arise within the meaning of s. 107 Government of India Act, inasmuch as the impugned Act had received the assent of the Governor-General. Mr. P.R. Das, appearing for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultural or not.... Item 24 is part of a constitution and would, on ordinary principles, receive the widest construction, unless for some reason it is cut down either by the terms of item 21 itself or by other parts of the constitution, which has to be read as a whole. As to item 21, 'land', the governing word, is followed by the rest of the item, which goes on to say, ' that is to say'. These words introduce the most general concept 'rights in or over land'. 'Rights in land' must include general rights like full ownership or lease-hold or all such rights. 'Rights over land' would include easements or other collateral rights, whatever form they might take. Then follow words which are not words of limitation but of explanation or illustration, giving instances which may furnish a clue for particular matters; thus there are the words 'relation of landlord and tenant, and collection of rents'. These words are appropriate to lands which are not agricultural equally with agricultural lands. Rent is that which issues from the land. Then the next two sentences specifically refer to agricultural lands, and are to be read with items 7, 8 and 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned Act, it may be necessary to fall back upon another item of List II, namely, item 27 which, amongst other subjects, mentions money lending and money-lenders. It is worthy of note that compulsory acquisition of land is an item by itself in List II. It is item 9 in that List, Whether the impugned Act merely provides for taking possession of estates and tenures for a public purpose without acquiring them, as contended by Mr. Lalnarayan Sinha, or whether it provides for compulsory acquisition of land without payment of compensation and without a public purpose, as has been argued by Mr. P.R. Das, is a question which I shall presently consider when I come to the negative aspect of the question, with particular reference to the restrictive provisions in S. 299, Government of India Act, 1935. Solely from the affirmative point of view, I do not think it matters whether the impugned Act provides for mere taking of possession or for compulsory acquisition without payment of compensation. The impugned legislation would, in either view, be covered by the various items already referred to in List II and List III. 65. The second question brings us at once to the negative aspect, name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The words 'by the law of the land' do not mean a statute passed for the purpose of working the wrong..... Nor do they mean anything which the legislature may see fit to declare to be such; for there are certain fundamental rights, which our system of jurisprudence has always recognised, which not even the legislature can disregard in proceedings by which a person is deprived of life, liberty or property (Colley's Constitutional Limitations, Vol. II, 8th Edn., pp. 737-38). Mr. P. Das's contention is that the word law in the expression save by authority of law does not mean the particular enactment in question, but the general law, the law of the land including the entire body of statute and common law. It is further contended that under the common law of England, where a statute authorises the compulsory acquisition of property, it is the invariable practice to provide for the payment of compensation. Furthermore, it is an established rule of construction that express words are required to authorise the taking of property without payment of compensation. Mr. P.R. Das has argued that these principles of the common law of England are applicable to India as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and will be valid. The effect of the two parts of the subsection read together is clearly this: it is not open to any legislature to make any law authorising the compulsory acquisition of land unless the following two conditions are fulfilled. The first or rather inherent condition is that the compulsory acquisition must be for public purposes. It is true that sub-s. (2) of s. 299, as worded, does not, strictly speaking, make 'public purposes' a condition precedent, but rather assumed that compulsory acquisition can be for public purposes only; it makes 'public purposes' inherent in compulsory acquisition. Regulation I [1] of 1824 perhaps the earliest regulation relating to acquisition of property by Government recognised, the principle that such acquisition is made 'for purposes of general convenience to community or arrangement of public utility.' In the Land Acquisition Acts which followed, right up to Act I[1] of 1894, the same principle finds recognition Section 299(2) must be construed in the light of the then existing state of the law in this country It was, perhaps, this historical background which the Joint Parliamentary Committee had in mind when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, that law must provide for compensation in accordance with the provisions of sub-s. (a). I do not think that sub-s. (3) affects that position, Sub-section (1) saves any pre-existing law, such as the Land Acquisition Act of 1894. Sub-section (5) is important, as it explains what is meant by the expression land in S. 299. The word land includes immovable property of every kind and any rights in or over such property. 69. If the view which I have taken of S. 299, Government of India Act, 1935, be correct, then it follows that the validity of the impugned Act depends on: (i) whether it authorises compulsory acquisition of any right in land; (ii) whether such acquisition was for a public purpose; and (iii) whether it provides for compensation. On each of the aforesaid three questions, there has been a controversy. The third question is, I think, easy of solution. The only payment which the impugned Act provides for is the payment of a quarterly allowance to the proprietor or tenure holder, and the payment of a surplus, if any, under Sub-s. (a) of S. 25 of the impugned Act, subject to the provisos mentioned therein. Such payment does not, in my opinion, amount to compensation: f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the impugned Act follows closely the scheme of latter Act with one very important difference. The basic principle of the Chota Nagpur Encumbered Estates Act is that the holder, whose estate is taken over, suffers from some disqualification or disability, and asks for the application of the Act to his estate; or the Deputy Commissioner is satisfied that the estate has been attached and is liable to be sold in execution of a decree or order of a civil Court or a revenue Court or the holder has entered upon a course of wasteful extravagance likely to dissipate his property. This basic principle-this raison d'etre of the Chota Nagpar Encumbered Estates Act-has been ignored in the impugned Act and what was applied in the case of a sick proprietor is being applied to all, healthy or otherwise. 71. Be that as it may, in view of the terms of sub-s. (5), S. 299 would apply to compulsory acquisition of immovable property of every kind, including any rights in or over such property. It seems clear to me that the impugned Act provides for the acquisition or deprivation of several rights in land, even though the entire bundle of rights of a proprietor or tenure holder is not taken a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquired from the owners or any other person or persons interested therein, and in both cases the statute provided for a purchase or hiring by agreement'. Therefore, on principle, no distinction can be made between possession for a temporary period and acquisition for all time. In Bug Tain v. Collector of Bombay, A.I.R. 1946 Bom. 216 : (47 Cri. L.J. 594), Bhagwati J. preferred the view of Latham C.J. That decision is entitled to respect, but is not binding on us. It appears that after Bhagwati J.'s decision, an ordinance was made (No. 5 of 1947) under the authority conferred on the Provincial Legislature to enact laws with respect to requisition of land by a notification of the Governor. General of India under S. 104, Government of India Act, 1935. In Ratanchand Hirachand v. D.R. Pradhan, A.I.R. 1849 Bom. 93 : (50 Bom. L.R. 614), it was held that the Governor General bad authority to issue a notification whereby he conferred on the provincial legislature power to enact laws with respect to requisition of land. It appears that to put the matter beyond any doubt, Item 36 of List II and Item 42 List III of the Constitution of India mention both acquisition or requisitioning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar to the purpose of those other Acts, viz., to eliminate conflicts between landlords and tenants, to give larger rights to tenants, to make it easier for tenants to cultivate their lands, etc. 74. It should be stated here that a Court of law is not called upon to determine the expediency or otherwise of State policy; nor is it concerned with motives of legislation. The simple point for decision by a Court of law is whether the constitutional charter imposes a restriction on the power of legislation, and if so, whether the restriction has been exceeded. There is on doubt that one of the restrictions imposed by S. 299 is that a law authorising acquisition of property must be for a public purpose. It is, I think, beyond dispute that the State cannot take possession of the property of A and make it over to B, without reference to some use to which it is to be applied for the public benefit. There has been a good deal of discussion before us as to the power of the State to take private property, by virtue of an authority existing in every sovereignty, which the American jurists call the right of eminent domain. As Dr. Cooley has put it (Cooley's Constitutional Limitations, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econd suit, the land was granted by a sanad in 1839 at a small annual rent subject to a stipulation, the said ground to be at any time resumable by Government for public purposes. The Government of Bombay gave notice that they desired to resume possession of the lands for a public purpose stating that they proposed to utilise the laud for the residences of Government officers. It was found on evidence that owing to the dearth of suitable houses in Bombay and the high rents demanded, officials were reluctant to accept appointment there, and that this was prejudicial to the efficiency of the various public services. The question for decision in the Privy Council case was whether the aforesaid purpose was a public purpose. The argument of the appellant before the Privy Council was that there cannot be a public purpose in taking land if that land when taken is not some in way or other made available to the public at large. Their Lordships did not accept this argument. While deprecating an attempt to define precisely the extent of the phrase public purposes in the lease, they laid down the following test: Whatever else the expression may mean, it must include a purpose, that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deprivation of rights in land therein provided was for a public purpose. No public purpose as is envisaged by the tests mentioned above is apparent either from the preamble or the provisions of the impugned Act. The provisions of the impugned Act do not benefit the State pecuniarily. It is conceded by Mr. Lalnarain Sinha that the State gets no benefit. The tenants get no benefit either; the provision for irrigation costs is highly problematic or hypothetical. I can find nothing in the provisions to avoid conflicts between landlords and tenants or give larger rights to tenants. As far as one can make out, the impugned Act is intended either as an experiment, without incurring any cost, of large-scale management of estates, or as a confiscation of rights in land without payment of compensation. 77. I wish to guard myself against saying that in no circumstances can there be a public purpose in acquiring zamindaries or in acquiring the interest of intermediaries or rent collectors, either in exercise of the right of eminent domain or in exercise of the police powers of the State. It would not be correct to make such a sweeping or general statement, and I must not be understood to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of the right guaranteed by Art. 19(1)(f) must be reasonable; the second condition is that the restrictions must be in the interest of the general public or for the protection of the interest of any Scheduled Tribe. It is clear enough from what I have stated above that the restrictions are neither reasonable nor in the interest of the general public. Article 19(5) cannot, therefore, save the impugned Act, assuming that the impugned Act was a valid piece of existing law on 26th January 1950, when the Constitution of India came into force. 81. As tothe provisions of Art. 31 of the Constitution, it is not in dispute that the provisions in Art. 19(1)(f) should be read with the provisions in Art. 81. Article 19(1)(f) refers to the right as a right of freedom. Article 31 relates to the right to property. The provisions in the two articles must be read together in order to avoid any apparent inconsistency or conflict. The constitution is an organic whole and must be so interpreted as (not?) to bring one part in conflict with another. This proposition has not been disputed, and has both authority and principle in support of it. I do not wish to overburden this judgment by citing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a shorter and simpler answer. Therefore, I am expressing no final opinion on all the above contentions, except to state my view that Art. 31(6), as worded, would prevent the Court from calling into question a law, coming within the purview of that clause, even in a pending action, and a law which is liable to be challenged only on the ground covered by that clause, must be held to be valid law, because it cannot be called into question on that ground which renders it invalid; thus there will be no question of reviving something which is dead or validating a nullity. A law passed by a competent Legislature is valid unless it is declared invalid by a competent Court of law. If the Court cannot call it into question on a particular ground, that ground cannot be urged for its invalidity either at the inception or at a subsequent Stage; for to do so would nullify the provisions for Art. 31(6) of the Constitution. 84. But it is clear to me that the concluding words of cl. (6) of Art. 31, namely- it shall not be called in question in any Court on the ground that it contravenes the provisions of cl. (2) of Art. 31 or has contravened the provisions of sub-g. (2) of S. 299, Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive act. It is difficult, if not impossible, to conceive that any one drafting a statute, especially an organic statute like the Constitution, would have written out S. 92 in its present form, if what we intended was a constitutional guarantee limited to the States but ineffective so far as regards the Commonwealth. On the same principle, the declaration of guaranteed rights in Art. 19(1)(f) and cl. (1) of Art. 31 cannot be frittered away by reading something more in cl. (6) of Art. 31 than what the words in that clause say. My conclusion, therefore, is that the certificate granted under cl. (6) of Art. 31 does not save the impugned Act. 86. Lastly, there is the question if some of the provisions of the impugned Act can be severed from the rest, and supported either under Cl. (5) of Art. 19 or cl. (2) of Art. 31. This question does not really arise in view of my finding that the whole Act was ultra vires ab initio by reason of the contravention of the provisions of S. 299, Government of India Act, 1935. Even if it were permissible to examine this question, it seems to me that the provisions of the impugned Act are so inextricably interwoven that one set of provisions cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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