TMI Blog1953 (12) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... 59) the right to avoid and annul all under-tenures and forthwith to eject all undertenants - with certain exceptions which are not material here. In exercise of that right the respondent gave notices of ejectment and brought a suit in 1946 to evict certain under-tenants, including the second respondent herein, and to recover possession of. the lands. The suit was. decreed against the second respondent who preferred an appeal to the District Judge, 24-Parganas, Contending that his undertenure came within one of the exceptions referred to in section 37. When the appeal was pending, the Bill, which was later passed as the West Bengal Revenue Sales (West . Bengal Amendment) Act, 1950, (hereinafter referred to as the amending Act ) was introduced in the West Bengal Legislative Assembly on March 23, 1950. It would appear, according to the . statement 0f objects and reasons annexed to the Bill, that great hardship was being caused to a large section of the people by the. application of section 37 of the Bengal Land Revenue Sales Act, 1859, in the urban areas and particularly in Calcutta and its suburbs where the present phenomenal increase in land values has supplied the necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority of law, namely, section 7 of the amending Act, such deprivation was lawful and could not be challenged. In support of this contention learned counsel strongly relied on the observations of my learned brother Das in Chiranjit Lal Choudhury s case([1950] S.C. R: 869) and also on the .analogy of the reasoning of the majority in ;Gopalan s case([1950] 8. S.C.R. 88.). Alternatively, it was urged that if the correct view was that the nullification of the respondent s right was only the imposition of a restriction on the enjoyment of the property purchased by him, as .has been held by the learned Judges. below, then, it was a reasonable restriction imposed in ,the interests of the general public under clause (5)of article 19, having regard to the facts and circumstances which led to the enactment of the measure as . disclosed in the Statement of Objects and [1954] Reasons annexed to the Bill which, for this purpose, is admissible. It will be convenient to deal first with the latter contention of the Attorney-General. Sub-clause (f) 0f clause (1) of article 19 has, in my opinion, no application to the case. That article enumerates certain freedoms under the caption r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution or its laws. What is of importance for the present purpose is that the two learned Judges thought that the right to take, hold and dispose of property was one of those primordial and fundamental rights of the same class as the right to pursue happiness and safety and other such basic freedoms appertaining to free citizens and was different from the concrete rights which a person may have to a specific res or thing owned, being the capacity, power or privilege of having and enjoying those concrete rights. Sub-clause (f) of clause (1) of article 19 seems analogous to clause (1) of article 17 of the United Nations Declaration of Human Rights Everyone has the right to own property alone as well as in association with others and article 31 to clause (2) of article 17 No one shall be arbitrarily deprived of his property. I have no doubt that the framers of our Constitution drew the same distinction and classed the natural right or capacity of a citizen to acquire, hold and dispose of property with other natural rights and freedoms inherent in the status of a free citizen and embodied them in article 19(1), while they provided for the protection of concrete rights of prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er inherent in the State to regulate private rights of property when they are sought to be exercised to the injury of others having similar rights, and the ,measure of restriction imposed. in exercise of such regulative power must be determined, in the case of citizens and non-citizens alike, by the necessity of protecting the community. On the other hand, differential treatment of citizens and non-citizens would be perfectly intelligible if subclause (f) of clause (1) of article 19 and clause (5) are understood as dealing only with the freedom or capacity to acquire, hold and dispose of property in general, for, it would be justifiable to exclude aliens from such freedom, as has been done in several countries for the benefit of their own nationals, particularly in respect of land. Moreover, both by the preamble and the directive principles of State policy in Part IV, our Constitution has set the goal of a social welfare State and this must involve the exercise of a large measure of social control and regulation of the enjoyment of private property. If concrete rights of property are brought within the purview of article 19(1)(f), the judicial review under clause (5)as to the rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to disabilities of the kind already mentioned. Turning next to the contention based on article 31 (1), it Was put thus in the language of Das J. in Chiranjit Lal Choudhury s case([1950] S.C.R. 869, 924) which the learned Attorney-General fully adopted: Article 31(1) formulates the fundamental right in negative form prohibiting the deprivation of property except by authority of law. It implies that a person may be deprived of his property by authority of law. Article 31(2) prohibits the acquisition or taking possession of property for a public purpose under any law, unless such law provides for payment of compensation. It is suggested that clauses (1) and (2) 0f article 31 deal with the same topic, namely, compulsory acquisition or taking possession 0f property, clause (2) being only an elaboration of clause (1). There appear (1) [1946] F.C .R. 1 CP. C.). to me to be two objections to this suggestion.If that were the correct view, then clause (1) must be held to be wholly redundant and clause (2), by itself, would have been sufficient. In the next place such a view would exclude deprivation of property otherwise than by acquisition or taking of possession. One can conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion thereof, and clause (1). authorising all other kinds of deprivation with no limitation except that they should be authorised by law. There are several objections to the acceptance of this view. But the most serious of them all is that it largely nullifies the protection afforded by the Constitution to rights of private property and, indeed, stultifies the very conception of the right to property as a fundamental right. For, on this view, the State, acting through its legislative organ, could, for instance, arbitrarily prohibit a person from using his property, or authorise its destruction, or render it useless for him, without any compensation and with-out a public purpose to be served thereby, as these two conditions are stipulated only for acquisition and taking possession under clause (2). Now, the whole object of Part Iii of the Constitution is to provide protection for the freedoms and rights mentioned therein against arbitrary invasion by the State, which as defined by article 12 includes the Legislatures of the country. It would be a startling irony if the fundamental rights of property were, in effect, to be turned by ,construction into an arbitrary power of the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the fundamental rights of individuals against invasion by the Legislatures in the country, ended by formulating the right of the Legislatures to deprive individuals of their property without compensation. Speaking of police power, as applied to personal liberty, Prof. Willis says( 1 ): There are two main requirements for a proper exercise of the police power--(1) there must be a social interest to be protected which is more important than the social interest in personal liberty, and (2) there must be, as a means for the accomplishment of this end, something which bears a substantial relation there to. This statement is equally true of police power as applied to private property. This is recognised and given effect to in clauses (2) to (6) of article 19 which delimit the regulative power of the Legislatures as applied to the freedoms enumerated in clause (1)of that article including the freedom referred to in sub-clause (f). But clause (1) of article 31 imposes no such limitations. Why should such absolute power be conferred on the Legislature in relation to private property, whereas the exercise of restrictive power under clauses (2) to (6) of article 19 is carefully li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st I and No. 36 of List II respectively. Thus, what is called the power of eminent domain, which is assumed to be inherent in the sovereignty of the State according to Continental and American jurists and is accordingly not expressly provided for in the American Constitution, is made the subject of an express grant in our Constitution. Having granted the power in express terms, the Constitution defines in article 31 the limitations on the exercise thereof as constituting the fundamental right to property of the owner, all fundamental rights of the people being restraints on the State [see observations at page 198 in Gopalan s case([1950] S.C.R. 88, 313)]. But the power of social control and regulation of private rights and freedoms for the common good being an essential attribute of a social and political organisation otherwise called a State, and pervading, as it does, the entire legislative field, was not specially provided for under any of the entries in the legislative Lists and was left to be exercised, wherever desired, as part of the appropriate legislative power. Even where such regulative powers are defined and delimited, as for instance in clauses (2) to (6) of article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly by including the executive Governments of the Union and the States in the definition of the State in article 12. A fundamental right is thus sought to be protected not only against the legislative organ of the State but also against its executive organ. The purpose of article 31, it is hardly necessary to emphasis, is not to declare the right of the State to deprive a person of his property but, as the heading of the article shows, to protect the right to property of every person. But how does the article protect the right to property ? It protects it by defining the limitations on the power of the State to take away private property without the consent of the owner. It is an important limitation on that power that legislative action is a pre-requisite for its exercise. As pointed out by Cooley, 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 appropriation. Private property can only be taken pursuant to law ( Constitutional Limitations, Vol. II, p. 1119). In England the struggle between prerogative and Parliament having ended in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim and Others v. The Collector of Bombay anal Others (2), that rule 75(a) of the Defence of India Rules (1) Commentaries, Vol. I, p, 110. (2) I.L.R. 1946 Bom. 517. under which a property situated in Bombay was requisitioned was ultra vires on the ground that entry No. 9 of List II did not confer on the Legislature the power of requisitioning, that such power was-conferred on the Central Legislature by the India (Proclamations of Emergency) Act, 1946 (9 and 10 Geo. V, Ch. 23). Attention was drawn to the Regulations and Acts relating to compulsory acquisition of land in this country including the Land Acquisition Act, 1894, all of which provided for the vesting of the property acquired in the Government or in one of its officers, and it was suggested that the framers of our Constitution, who must have been aware of the difficulties arising out of the lacuna in the Government of India Act, 1935, in regard to the power of requisitioning, added the words taken possession of in clause (2) and the word requisitioning in the entries referred to above. It was, therefore, urged that the words acquired or taken possession of should not be taken to have reference to all form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and vesting of title in the Government is to overlook the real nature of the power of the State as a sovereign acting through its legislative and executive organs to appropriate the property of a subject without his consent. When the State chooses to exercise such power, it creates title in itself rather than acquire it from the owner, the nature and extent of the title thus created depending on the purpose and duration of the use to which the property appropriated is intended to be put as disclosed in the law authorising its acquisition. No formula of vesting is necessary. As already stated, in the case of moveable property no formal transfer or vesting of title apart from seizing it could have been contemplated And, what is more, clause (5) (b) (ii) of article 31, which excepts any law made in future for the prevention of danger to life or property from the operation, of clause (2) shows that the latter clause, but for such exception, would entail liability to pay compensation for deprivation by destruction, which must therefore- be taken to fall within the scope of clause (2), for a law made for the prevention of danger to life or property may often have to provide for des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in an emergency to deprive a person of his property without payment of compensation, as for example, to demolish an intervening building to prevent a conflagration from spreading, would be excluded is equally baseless. Cases of that kind, as we have seen, would fail within the exception in clause (5)(b)(ii), and no compensation would be payable for the loss caused by the destruction of property authorised under that clause. The learned Attorney-General suggested that sub-clause (b) was inserted ex-abundante cautela as even without it no one could have supposed that a law of the kind mentioned in that sub-clause would fall under clause (2). There could have been no doubt, for instance, that the power of taxation referred to in paragraph (i) of that sub-clause was a distinct power. It is difficult to appreciate this argument. If the exceptions in sub-clause (b) were so obvious that they need not have been explicitly provided for, then equally must be second objection of Das J. fall to the ground. To say that sub-clause (b)is introduced by way of abundant caution is not to do away with the exceptions but to emphasise their existence aliunde. Whether it was considered necessary to prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted view. So modern a document as the Declaration of Human (1) Commentaries Vol. I, p. 109. Rights in the United Nations has specifically provided for the protection of private property by including the clause No one shall be arbitrarily deprived of his in article 17 and the framers of our Constitution have evidently proceeded on that view. Secondly, the argument also overlooks that clause (5) (b) was not intended to define and does not define exhaustively the power of social control and regulation in relation to rights of private property. It only limits the purposes for which the power could be exercised without liability to pay compensation, though its exercise results in deprivation of property in the sense already explained. But where its exercise does not involve deprivation of property, no question of paying compensation would arise, and the Legislatures in the country would, as already indicated, be free to enact laws providing for the exercise of such power within the fields marked out for them in the Legislative Lists. There is, therefore, no room for the apprehension that article 31 (5)(b) would unduly cramp social control and regulation of private property for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anxious that the new Constitution should contain a declaration of rights of different kinds, for reassuring minorities for asserting the equality of all persons before the law, and for other like purposes; and we have examined more than one list of such rights which have been compiled. The Statutory Commission observe with reference to this subject:-- We are aware that such provisions have been inserted in many Constitutions, notably in those of the European States formed after the war Experience, however, has not shown them to be of any great practical value. Abstract declarations are useless unless there exist the will and means to make them effective. With these observations we entirely agree; and a cynic might indeed find plausible arguments, in the history during the last ten years of more than one country, for asserting that the most effective method of ensuring the destruction of a fundamental right is to include a declaration of its existence in a constitutional instrument. But the American view is different. Answering a similar objection to the inclusion of a Bill of Rights in the American Constitution, Jefferson said: But though it is not absolutely efficacious un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... municipal law with respect to the user and enjoyment of those things to the exclusion of all others. This wide connotation of the term makes it sometimes difficult to determine whether an impugned law is a deprivation of property within the meaning of article 31 (2), for, any restriction imposed on the use and enjoyment of property can be regarded as a deprivation of one or more of the rights theretofore exercised by the owner. The American courts have experienced similar difficulty in deciding whether a given statutory abridgement of the rights of the owner is an exercise of the-police power for which no compensation can be claimed, or a taking of property within the meaning of the Fifth Amendment clause Nor shall private property be taken for public use without just compensation. The general rule at least said Holmes J. in delivering the majority opinion in Pennsylvania Coal Co. v. Mahon(1 ), is that while property may be regulated to a certain extent, if regulation goes too far, it will be recognised as a taking. The vague and expansive doctrine of police power and the use of the term taken in the Fifth Amendment construed m a very wide sense so as to cover any inj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty as before. In other words, what the amending Act seeks to do is to enlarge the scope of the protection provided by the exception in the old section, as it was found to be inadequate, while conferring certain compensating benefits on the purchaser. This amendment is in the line with the traditional tenancy legislation in this country affording relief to tenants whenever the tenancy laws were found, due to changing conditions, to operate harshly on the tenantry. I find it difficult to hold that the abridgement sought to. be effected retrospectively of the rights of a purchaser at a revenue sale is so substantial as to amount to a deprivation of his property within the meaning of article 31 (1) and (2). No question accordingly arises to the applicability of clause (5) (b) (ii) to the case. In the result, the appeal is allowed and the judgment of the High Court is set aside. The first respondent will pay the costs of this appeal incurred by the appellant here and in the lower Court. MEHR CHAND MAHAJAN J.--For reasons given in my judgment in Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Mills Ltd., (C.A. 141 of 1952)(1 ) I agree with my Lord the Chief Justice in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er prescribed by any law for the time being in force for the enhancement of the rent of any land coming within the fourth class of exceptions above made, if he can prove the same to have been held at what was orginally an unfair rent, and if the same shall not have been held at a fixed rent, equal to the rent of good arable land, for a term exceeding twelve years; but not otherwise; Provided always that nothing in this section contained shall be construed to entitle any such purchaser as aforesaid to eject any raiyat having a right of occupancy at a fixed rent or at a rent assessable according to fixed rules under the laws in force, or to enhance the rent of any such raiyat otherwise than in the manner prescribed by such laws, or otherwise than the former proprietor, irrespectively of all engagements made since the time of settlement, may have been entitled to do. In exercise of his rights under the section set out above, the respondent Subodh Gopal Bose annulled all under-tenures and tenancies appertaining to the said Touzi and on tile 18th March, 1946, instituted a suit, being Title Suit No. 35 of 1946, in the Fourth Court of the Subordinate Judge at Alipore 24-Parganahs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in any lease or contract no person shall be entitled to hold under such a purchaser as is aforesaid any tenure holding or lease coming within exception (b) above made, free Of rent or at a low rent or at a rent or rate of rent fixed in perpetuity or for any specified period unless the right so to hold has been expressly recognised under any law for the time being in force by any competent civil or revenue court; and the purchaser shall be entitled to proceed in the manner prescribed; by any law for the time being in force for the determination of a fair and equitable rent of such tenure, holding or lease. Section 7 of the amending Act provides as follows :-: 7. (1) (a) Every suit or proceeding for the ejectment of any person from any land in pursuance of section 37 or section 52 of the said Act, and (b) every appeal or application for review or revision arising out of such suit or proceeding, pending at the date of the commencement of this Act shall if the suit, proceeding, appeal or application could not have been validly instituted, preferred or made had this Act been in operation at the date of the institution, the preferring or the making thereof, abate. (2) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er appellate court for disposal of the appeal in the light of that finding. On the 30th November, 1951, the High Court gave leave to the State of West Bengal to appeal to us. Hence the present appeal. Section 7 of the amending Act, the validity whereof is challenged before us, in terms, affects preexisting rights. Accordnig to that section every suit or proceedings for ejectment under old section 37 and every appeal or application for review or revision arising out of such suit or proceeding pending at the commencement of the amending Act is to abate if the suit, proceeding, appeal or application could not have been validly instituted, referred or made, had the amending Act been in operation at the date of such suit, proceeding, appeal or application. Further, every decree passed or order made before the commencement of the amending Act for the ejectment of any person from land in pursuance of old section 37 is likewise to become void if such decree or order could not have been validly passed or made if the amending Act had been in operation at the date of the decree or order. The proviso, however, saves -decrees or orders in execution whereof possession had been delivered befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article. The High Court repealled the above noted contention and held that the restriction was unreasonable.The High Court based its conclusions on three things, namely, (1) the retrospective operation of the impugned section, (ii) the absence of any provision for the abatement of the purchase price and (iii) the failure of the State to show any reason why the impugned section was introduced into the amending Act. The learned Attorney-General submits that the first two elements taken into consideration by the High Court are wholly irrelevant for the purpose of determining whether the restriction imposed was reasonable in the interest of the general public. Ordinarily a statute is construed prospectively unless it is made retrospective by express words or necessary intendment; but, the learned Attorney- General submits, the fact that a statute is expressly or by necessary implication made retrospective, does not, by itself, furnish any cogent reason for saying that the statute is prima. facie unfair and, therefore, unreasonable. While I see some force in this argument I am, nevertheless, not convinced that the fact of the statute being given retrospective operation may not be prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the Bill quite clearly refers to the great hardship caused by the application of the old section 37 to a large number of people in the urban area and particularly in Calcutta (1) 55 C.W.N. 719 at p. 727. and its suburbs where the then prevailing phenomenal increase in land values had supplied the necessary incentive to speculative purchasers in exploiting that section for unwarranted large-scale eviction and maintains, according to the sponsor-of the Bill, that such large-scale evictions necessitated the enlargement of the scope of protection of that section, with due safeguards for the securing of Government revenue. It is well settled by this court that the statement of objects and reasons is not admissible as an aid to the construction of a statute (see Aswini Kumar Ghose v. Arabinda Bose(1)) and 1 am not, therefore, referring to it for the purpose of construing any part of the Act or of ascertaining the meaning of any word used in the Act but I am referring to it only for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extent and urgency of the evil which he sought to rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. The cumulative effect of the foregoing facts which were not placed before the High Court much outweighs the consideration of the pecuniary loss of the respondent, Subodh Gopal Bose, as the auctionpurchaser and in the circumstances the infliction of the loss of the right to eject under-tenants can only be regarded as a reasonable restriction permitted by article 19(5) to be imposed on the exercise of the right guaranteed under article 19(1) (f). In my judgment the reasons for which the High Court declared section 7 of the amending Act to be ultra vires the Constitution are no longer tenable in view of the circumstances now before us which were not brought to the notice of the High Court and the decision of the High Court cannot, therefore, be sustained. An alternative-argument, however, has been raised by learned advocate for the respondent, Subodh Gopal Bose, that the impugned section violates the fundamental right secured to him by article 31(2) of the Constitution and is, therefore, void under article 13(1). The contention, shortly put, is that the right, conferred by the old section 37 to avoid and annul the undertenures and to eject the under-tenants is, by itself, prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent Chief Justice in the judgment that he delivered on behalf of himself, Kania C. 1,and myself. Said his Lordship at pages 455-456: Although personal liberty has a content sufficiently comprehensive to includei the freedoms enumerated in article 19 (1), and its deprivation would result in the extinction of those freedoms, the Constitution has treated these civil liberties as distinct fundamental rights and made separate provisions in article 19 and articles 21 and 22 as to the limitations and conditions subject to which alone they could be taken away of abridged. The interpretation of these articles and their correlation were elaborately dealt with by the full court in Gopalan s case(1). The question arose whether section 3 of the Act was a law imposing restrictions on the right to move freely throughout the territory of India guaranteed under article 19 (1) (d) and, as such, was liable to be tested with reference to its reasonableness under clause (5) of that article. It was decided by a majority of 5 to 1 that a law which authorises deprivation of personal liberty did not fall within the purview of article 19 and its validity was not be judged by the criteria indicated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad with the relevant clauses (2) to (6) presuppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum of personal freedom on which alone the enjoyment of these rights necessarily rests , it must follow logically that article 19 (1)(f) read with article 19 (5) must likewise presuppose that the person to whom that fundamental right is guaranteed retains his property over or with respect to which alone that right may be exercised. I found myself unable to escape from this logical conclusion and so I said in A.K. Gopalan s case at pages 304-305: But suppose a person loses his property by reason of its having been compulsorily acquired under article 31 he loses his right to hold that property and cannot complain that his fundamental right under subclause (f) of clause (1) of article 19 has been infringed. It follows that the rights enumerated in article 19 (1) subsist while the citizen has the legal capacity to exercise them. If his capacity to exercise them is gone, by reason of lawful conviction with respect to the rights in subclauses (a) to (e) and (g), or by reason of a lawful compulsory acquisition with respect to the right i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any other country, or otherwise, with respect to property declared by law to be evacuee property. It is suggested that the two clauses are not mutually exclusive but must be read together and that they are only concerned with what has -been described as the State s power of eminent domain which, according to Professor Willis, means the legal capacity of sovereignty, or one of its governmental organs, to take private property for a public use, upon the payment of just compensation. Reference is made to certain passages culled from the works of eminent ancient writers like the Dutch publicist and statesman Hugo Grotius who flourished in the 17th century and William Blackstone the celebrated English jurist who wrote his Commentaries round about 1769 and from Judge Cooley s well known book on Constitutional Limitations to show that from early times jurists have insisted on three things as pre-requisites for the exercise of this power of eminent domain, namely, (1) the authority of law, (2) the requirement of public use, and (3) the payment of just compensation. These three prerequisites which constitute limitations on the power of eminent domain are said to have been epitomised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a C-I- expressed the view that that line of reasoning was not proper and was misleading. My Lord the present Chief Justice at page 197 repelled that contention. After quoting the words of Madison about the great and essential rights of the people my Lord concluded at page 199: This has been translated into positive law in Part III of the Indian Constitution, and I agree that in construing these provisions the high purpose and spirit of the Preamble as well as the constitutional significance of a Declaration of Fundamental Rights should be borne in mind.This, however, is not to say that the languageof the provisions should be stretched to square withthis or that constitutional theory in disregard of the cardinal rule of interpretation of any enactment, constitutional or other, that its spirit, no less than its intendment should be collected primarily from the natural meaning of the words used . After noticing the argument of learned counsel for the petitioner Mukherjea J. at page 266 et scq found It impossible to introduce the American doctrine of due process of law into our article 21. If the language of our articlc 21 could not be stretched to square with the American due pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protection against the State by imposing any limitation on the exercise of that power. The suggested construction will render the enunciation of our fundamental Right to property patently incomplete. It has been urged that the State s police power is recognised and regulated by article 19 clauses (2) to (6) and article 31 (5) (b). I shall deal with that argument in detail hereafter and show that it is quite untenable. Apart from that argument, the result of reading article 31, clauses (1) and (2) together will be to hold that our Constitution has not provided for us any protection against the exercise of the State s police power either by the Legislature or by the executive. Such a conclusion I am not prepared to accept. Accordingly I thus explained what I conceived to be the true scope and effect of clauses (1) and (2) of article 31 in Chiranjitlal s case (supra) at page 925, namely, that clause (1) deals with deprivation of property in exercise of police power and enunciates the restriction which our Constitution-makers thought necessary or sufficient to be placed on the exercise of that power, namely, that such power can be exercised only by authority of law and not by a mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 19 and article 31(5) (b)- there is no necessity to read article 31(1) as concerned with the State s police power at all. I see no force or validity in the aforesaid objection. I first deal with the objection in so far as it is founded on the recognition of the State s police power in article 19. I say that there is no force in this objection for the following reasons: (a) article 19(1) enumerates seven rights to freedom and guarantees them to the citizens of India. Clauses (2) to (6) of that article recognise and regulate the exercise of police power over those rights by the State through its legislative organ, for the State is, by those clauses, permitted to impose reasonable restrictions by law only. Therefore, it follows that article 19 does not give any protection to the citizens against the executive government in respect of even those seven rights. The citizens, however, have protection against the executive as well as the Legislature under article 21 but that protection covers life and personal liberties only. Where, then, is the citizen s protection against the exercise of police power by the executive over his property? It is nowhere except in article 31(1) as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of these rights necessarily rests . The contrary view expressed by a Bench of the Allahabad High Court was rejected by my Lord at the end of page 193 with the following remark: ........ their major premise that deprivation of personal liberty was a restriction within the meaning of article 19 is, in my judgment, erroneous . Mahajan J. expressed the same view in the following passage at page 227 in his judgment in that case: Preventive detention in substance is a negation the freedom of locomotion guaranteed under article 19(1)(d) but it cannot be said that it merely restricts it . Mukherjea J. said at page 256: ..... and the purpose of article 19 is to indicate the limits within which the State could, by legislation, impose restrictions on the exercise of these fights by the individuals. The reasonableness or otherwise of such legislation can indeed be determined by the court to the extent laid down in the several clauses of article 19, though no such review is permissible with regard to laws relating to deprivation oflife and personal liberty . His Lordship concluded thus at page 264: The result is that, in my opinion, the first contention raised by Mr. Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the police power or formulating any limitation on that power, then the protection against deprivation of property will have to be derived from only clauses (1) and (2). If, in such circumstances, both those clauses are read in the way suggested by learned counsel for the respondent, Subodh Gopal Bose, namely, as dealing only with the topic of the State s power of eminent domain then there will remain no escape from the conclusion that in the Republic of India neither a citizen nor a non-citizen has any constitutional protection against the exercise of police power either by the legislative or executive organ of the State. On the other hand, if the construction suggested by me be adopted, everybody, citizen or noncitizen, will have, under article 31 (2), full protection against the exercise the power of eminent domain by both the executive as well as Legislature and in addition to that will also have protection against the exercise of police power over property by the executive. The preservation of this protection alone, even if some may regard it as very meagre, is, to my mind, a sufficiently cogent reason for adopting the construction suggested by me in preference to the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connotations subserving different needs of the society and the State. If both clauses (1) and (2) of article 31 deal with and impose restrictions only on the State s power of eminent domain, then there was no real necessity for exempting by article 31 (5)(b)the taxation power or the police power from the operation of the power of eminent domain, for, ex hypothesis, the two first mentioned powers, being distinct from the power of eminent domain, did not and could not fail within the last mentioned power and, therefore, needed no exemption. Even a casual student of Constitutional law knows that money is one of the kinds of property which, it is said, cannot be taken in exercise of the State s power of eminent domain and that being so there could be no necessity for exempting laws imposing taxes from the operation of article 31 (2) which embodies only the doctrine of eminent domain. Further, the police power, like the pOwer of taxation and the power of eminent domain, is an attribute of sovereignty itself.It is, as Professor Willis calls-it, the offspring of political necessity . This coercive legal capacity is inherent in every sovereign and requires no specific reservation. Indeed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intended, there was no necessity, then, for inserting into the Constitution article 265 providing that no taxes. shall be levied or collected except by authority of law, which clearly means that the executive cannot, on its own authority, levy or collect any tax. It is, therefore, quite plain that article 31 (5)(b)(i)was not designed to give any protection against the executive in the matter of the exercise of the power of taxation and that our Constitution-makers, precisely for that reason, considered that it was necessary that such protection should be given expressly and, therefore, inserted article 265. Likewise, article 31 (5)(b)(ii) saves certain laws and does not in terms give us any protection against the exercise of police power by the executive. Where, then, is our protection against deprivation of property by the exercise of police power by the executive Government? It is nowhere to be found in our Constitution except in article 31(1). This, to my mind, clearly indicates that article 31(1)was designed to formulate a fundamental right against deprivation of property by the exercise of police power by the executive arm of the State. The protection against the exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said to impose a tax or a penalty and does not fail within (5) (b) (ii) either, for it is not a law for the promotion of public health or for the prevention of danger to life or property. This law being thus outside clause (5)(b)cannot, according to the suggested construction be supported as an instance of exercise of police power for, ex hypothesis the entire police power with regard to deprivation of property is contained in clause (5)(b)and consequently the law I have mentioned will not be protected from the operation of article 31(2) and must be void for not providing any compensation. Yet in the United States where so much is made of the sanctity of private property and from where we are prone to draw inspiration in these matters such a law has been upheld as ,constitutional, as an instance of a valid exercise of the State s-police power which extends to all the great public needs. [See Noble State Bank v. Haskell(219 U.S. 104.)]. Again, suppose there is a labour dispute between, say, a tramway company and its workers and the running of the tram cars is stopped. A law which in such circumstances authorises the State to take possession of the tram depot and run the tram c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th or the prevention of danger to life. According to the suggested construction the acquisition of property authorised by each of these laws will be exempt from payment of compensation to the owner, for these laws are, by clause (5)(b) (ii) exempted from article 31(2). And yet acquisition of land for such public purposes is precisely the kind of acquisition which is always made on payment of 5--95 s.C.I.159 compensation under the Land Acquisition Act 1894. A construction which takes a law made really and essentially in exercise of the power of eminent domain out of article 31(2) cannot readily be accepted as cogent or correct. (vi) The complexities of modern States constantly give rise to conflicts between opposing social interest and it is easy to visualise circumstances when much wider social control legislation than is envisaged or recognised in the laws referred to in article 31(5)(b) will be imperatively necessary. Indeed, as Professor Willoughby states in his Constitutional Law of the United States, Vol. III, p. 1774, the police power knows no definite limit. It extends to every possible phase of what the Courts deem to be the public welfare . In the language used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e law of the land. As pointed out by Mathews J. in joseph Hurtado v. People of California ((1883) 10 U.g. 516 at p. 531.), by the 29th Clause of the Magna Charta the English Barons were not providing for security against their own body or in favour of the commons by limiting the power of Parliament but were protecting themselves against oppression and usurpation of the King s prerogatives. In other words, that clause of the Magna Charta was not designed as a protection against Parliament at all and indeed did not purport to formulate any limitation on the Sate s power of eminent domain but was only intended to be a protection against the exercise of police power by the highest executive, the King. There is unmistakably a familiar ring in the language of our article 31(1) echoing the sound of the language of the 29th Clause of that great charter which the English Barons had wrested from their King. The purpose and function of our article 31(1), as I apprehend it, are the same as those of the Magna Charta. Our Constitution has given us ample protection against the executive in relation to all the three sovereign powers of the State. Thus the executive cannot, on its own authority, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State s police power. This is no ground for rejecting my construction, for, on the construction suggested to the contrary, the position is exactly the same, for article 31 (5) (b) only saves certain laws from article 31(2), that is to say, recognises the police power but does not formulate any test for determining the validity of those laws which may be as unreasonable as the legislature may make them. Apart from this, what, I ask, is our protection against the legislature in the matter of deprivation of property by the exercise of the power of taxation ? None. whatever. By exercising its power of taxation by law the State may deprive uS, citizen or non-citizen of almost sixteen annas in the rupee of our income. What, I next ask, is the protection which our Constitution gives to any person against the legislature in the matter of deprivation even of life or personal liberty ? None, except the requirement of article 21, namely, a procedure to be established by the legislature itself and a skeleton procedure prescribed in article 22. In A.K. Gopalan s case (supra), notwithstanding the reference made to the epigrammatic observation of Bronson J. in Taylor v. Porte(4 Hill 140.) to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution by unmaking the one which the people of India have given to themselves. That, I apprehend, is not the function of the court. If the Constitution, properly construed according to the cardinal rules of interpretation, appears to some to disclose any defect or lacuna the appeal must be to the authority competent to amend the Constitution and not to the court. (4) Further, there may be quite cogent and compelling reason why our Constitution does not provide for any protection against the legislature in the matter of deprivation of property otherwise than by taking of possession or acquisition of it. It is futile to cling to our notions of absolute sanctity of individual liberty or private property and to wishfully think that our Constitution-makers have enshrined m our Constitution the notions of individual liberty and private property that prevailed in the 16th century when Hugo Grotius flourished or in the 18th century when Blackstone wrote his Commentaries and when the Federal Constitution of the United States of America was framed. We must reconcile ourselves to the plain truth that emphasis has now unmistakably shifted from the individual to the community. We cannot overl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose which implies that this power cannot be exercised except for implementing a public purpose. It cannot be exercised for a private purpose. What is a public purpose has been elaborately dealt with in that case and need not be discussed over again here. Finally, the law authorising the taking of possession or acquisition of the property must provide for compensation. Compensation, therefore, is payable only when the State takes possession of or acquires private property. What, then, is the meaning of the words. taken possession of or acquired , and their grammatical variations as used in article 31 (2) ? It is pointed out that the last clause of the Fifth Amendment which deals with eminent domain uses the word taken and it is suggested that as our article 31 (2) deals with the same topic of eminent domain it will be reasonable to hold that our article 31 (2) reproduces the American constitutional limitations and that, therefore, the expression taken possession of or acquired used in our article 31 (2) must be read as having the same meaning which has been attributed , by the Judges of the Supreme Court of the United States to the word taken occurring in their Fifth A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transfer of title. It will be quite wrong, according to the correct principles of interpretation, not to give the word acquisition and its grammatical variations this technical and special meaning I, therefore, respectfully agree-with what Mukherjea J. said in Chiranjit Lal s case (supra) at page 902, namely: It cannot be disputed that acquisition means and implies the acquiring of the entire title of the expropriated owner, whatever the nature or extent of that title might be. The entire bundle of rights which were vested in the original holder would pass on acquisition to the acquirer leaving nothing in the former. In taking possession on the other hand, the title to the property admittedly remains in the original holder, though he is excluded from possession or enjoyment of the property. Article 31 (2) of the Constitution itself makes a clear distinction, between acquisition of property and taking possession of it for a public purpose, though it places both of them on the same footing in the sense that a legislation authorising either of these acts must make provision for payment of compensation to the displaced or expropriated holder of the property. In the contex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t quite clear that they required compensation to be paid only when there was an actual taking of the property out of the possession of the owner or possessor into the possession of the State or its nominee. Of course the manner of taking possession must depend on the nature of the property itself. I repeat with humility that it is not permissible to ignore the historical background and the actual words used in our Constitution. It is finally said that both clauses (1)and (2)of article 31deal with the topic of eminent domain and, therefore,the expression taken possession of or acquired occurring in clause (2)has the same meaning which the word deprived used in clause (1) has In other words, both the clauses are concerned with deprivation of property and there is no reason to think that the expression taken possession of or acquired was usedin clause (2) to indicate any particular kind or shadeof deprivation. The Obvious retort that at once comes to one s mind is that if it were intended by our Constitutionmakers to convey the same general idea of deprivation of property by whatever means or mode it was brought about why did they use the word deprived in clause (1) and why ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cardinal rules interpretation. Therefore, taken possession of or acquired should be read as indicative of the concept of requisition or acquisition . A further question, however, arises at this stage and it may be now considered. Does every taking of a thing into the custody of the State or its nominee necessarily mean the taking of possession of that thing within the meaning of article 31 (2) so as to call for compensation ? The exercise of police power in relation to property may conceivably result in the extinction or destruction of the property or in the State taking the property in its control. Take the case of the law authorising the municipal bailiff to seize rotten vegetables or adulterated foodstuffs and destroy them or to enter upon the property of a private owner to pull down the dilapidated structure. Consider the law authorising the men of the fire brigade to go upon the property of a private owner and demolish it to prevent the fire from spreading to the houses beyond or on the other side of that house. Take the case of the law authorising the seizure and destruction of property for the protection of public morality. Although in none of the above cases there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s within article 31 (2)and only illustrates the exercise of the State s police power. As all the three Acts were passed after the Constitution came into force and as they may be challenged in future an argument rounded on them will really be begging the question in debate before us. I, therefore, prefer just to note the Attorney-General s contention and pass on and not to base my decision on consideration of any of those Acts. Confining myself then to the illustrations given by me I think it is fairly clear from the foregoing discussion that none of the laws referred to above by me authorise any acquisition of property in the sense explained above and although each of them does authorise a sort of taking of possession of the property yet nobody can contend that the taking of possession so authorised by them fails within article 31 (2). In other words, the taking of possession authorised by those laws does not amount to the exercise of the power of eminent domain but is the result of the exercise of police power. It follows, therefore, that every taking of possession does not fail within article 31 (2). What, then, is the test for determining whether a taking of possession auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose is one which the State has set out to fulfil as its own obligation and the State takes possession on its own account to discharge its own obligation. In police power the State destroys or extinguishes or takes possession of property in order to prevent the owner from indulging in anti-social activities or otherwise inflicting injury upon the legitimate interests of other members of the community either by using his property in a manner he should not do or by omitting to use it in a manner he should do. In such a case the State steps in and destroys or extinguishes only to prevent an injury to social interest or takes possession and assumes the superintendence of the property not on its own account for implementing its own public purpose but for protecting the interests of the community. It is easy to perceive,though somewhat difficult to express, the distinction between the two kinds of taking of possession which undoubtedly exists. In view of the wide sweep of the State s police power it is neither desirable nor possible to lay down a fixed general test for determining whether the taking of possession authorised by any particular law fails into one category or the other. Wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercise all acts of ownership except that he cannot exercise the right to annul the under-tenures or eject any under-tenants or execute the decree he has obtained. But have these last mentioned rights been taken possession of or acquired by the State within the meaning of article 31(2) ? There is no doubt that the State has not acquired these rights in the sense I have explained, for there has been no transfer, by agreement or by operation of law, of those rights from the respondent Subodh Gopal Bose to the State or anybody else. The impugned law has not vested those fights in the State or anybody else and does not authorise the State or anybody else to exercise these rights. Referring to the position of the shareholders under the Sholapur Spinning and Weaving Company (Emergency Provision) Act, 1950, Mukherjea J. said in his judgment in Chiranjitlal s case (supra) at pp. 905- 906 :- The State has not usurped the shareholders right to vote or vested it in any other authority. The State appoints directors of its own choice but that it does, not in exercise of the shareholders right to vote but in exercise of the powers vested in it by the impugned Act. Thus there has been no d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur with my Lord the Chief Justice that the view of the High Court, Calcutta, that section 7 of the West Bengal Revenue Sales (West Bengal Amendment) Act, 1950, is void as abridging the fundamental rights of the first respondent under article 19(1)(f)and (5) of the Constitution cannot be sustained and I agree with the order proposed by him. JGANNADHADAS J.--l have had the advantage of reading the judgments of my Lord the Chief Justice and of my learned brother Justice S.R. Das. On the assumption that the question raised in this case is one that arises under article 19(1) (f) and (5) of the Constitution--that being the footing on which the learned Judges of the High Court dealt with the case--I agree with that portion of the judgment of my learned brother Justice S.R. Das which holds that the impugned section 7 of the Bengal Land-Revenue Sales (West Bengal Amendment) Act, 1950 (West Bengal Act VII of 1950) is intra vires and for the reasons stated by him. A larger question has, however, been raised as to whether this is a case which falls within the scope of article 19(1) (f) and (5) or article 31 of the Constitution. Since, on either view, we are all agreed as to the final res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 13 that the power is not to be so exercised as to infringe the fundamental rights declared in Part III of the Constitution. And, therefore, the legislatures can exercise every power--including the police power, if it is necessary to import that concept--within these : limits, in so far as it is not provided for in article 19(2) to (6) and article 31 (5) (b) (ii) or other specific provisions in the Constitution, if any. The only problem thus presented to the Courts is not as to what is the extent of the police power, but as to what is the scope and limit of the fundamental right which is alleged to have been infringed by legislative action. I agree with my learned brother Justice S.R. Das that the Constitution envisages a large measure of social control a means to achieve the goal set out in the preamble and in the directive principles enumerated in Part IV. I am also of the view that the Courts may not ignore the directive principles, as having no bearing on the interpretation of constitutional problems, since article 31 categorically states that it shall be the duty of the State (including the legislature by virtue of the definition of State in Part III made applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirement of the authority of law for deprivation of property with a larger connotation, they limited the requirement of payment of compensation to what may reasonably be comprehended within the concepts of acquisition and taking possession . With respect, to read these words and phrases in article 31 (2) as meaning the same thing as deprivation used in article 31 (1) and to make the test of substantial abridgement or deprivation as the sine qua non for payment of compensation under article 31 (2) is to open the door for introduction of most, if not all the elements of wide uncertainty which have gathered round the word taken used in the corresponding context in the American Constitution, notwithstanding caution to the contrary which my Lord the Chief Justice has indicated in his judgment. I am inclined to think that it is in order to obviate this that the framers of the Constitution deliberately avoided the use of the word deprived or deprivation in article 31(2). I am conscious of the principle that a Constitution has to be liberally construed so as to advance the content of the right guaranteed by it. But where, as in this case, there is, what appears, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fight out of that bundle in relation to such ownership. But in the context of article 31 (2)--as in the cognate context of article 19 (1)(f)--the connotation of the word is limited by the accompanying words acquisition and taken possession . Hence out of the general and wide category falling within the connotation of the word property , only that which can be the subject matter of acquisition or taking possession , is the property which is within the scope of article 31(2). This to my mind excludes, for instance, a bare individual right, out of the bundle of rights which go to make up property as being itself property for purposes of article 31 (2), unless such individual right is in itself recognised by law as property or as an interest in property--an easement, a profits-a-prendre and the like--and as capable of distinctive acquisition or possession. Thus for instance in the case with which we are concerned in the present appeal, the right to annul under-tenures cannot in itself be treated as property, for it is not capable of independent acquisition or possession. The deprivation of it can only amount to a restriction on the exercise of the rights as regards the main ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
