TaxTMI 
TaxTMI 
1953 (12) TMI 20
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....t 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 incentive to speculative purchasers in exploiting this provision .(section 37) of the law for unwarranted largescale eviction" and it was,therefore,. considered necessary to enlarge the scope of protection already....
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....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 "right to freedom" and deals with those great and basic rights which are recognised and guaranteed as the natural rights inherent in the status of a citizen of a free country. The freedoms declared in subclauses (a) to (e) a....
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....ass'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 property owned by a person in article 31. The meaning of the phrase,"to acquire, hold and dispose of property" as well as the nature of the subject matter to which it has reference in the sense indicated above, is also clear from t....
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....ust 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 reasonableness of such control and regulation might have an unduly hampering effect on legislation m that behalf, and the makers of our Constitution may well have intended to leave the Legislatures free to exercise such control and....
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....y-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 conceive of circumstances where the State may have to deprive a person of his property without acquiring or taking possession of the same. For example, in any emergency, in order to prevent a fire spreading, the authorities may have to demoli....
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....at 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 State to deprive a person of his property without compensation in all ways other than acquisition or taking possession of such property. If the Legislatures were to have such arbitrary power, why should compensation and public purpose be ins....
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...., 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 limited to specified purposes and to the imposition of only reasonable restrictions in each of those cases ? Could it have been intended that, while restriction imposed on the freedoms mentioned in clause (1) of article 19 should be reasonab....
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....ided 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 19 in relation to the rights and freedoms specified in clause (1), the powers themselves are left to be exercised under laws made with respect to those' matters. For example, the power of social control and regulation as applied to freedom....
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.... 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 of the latter, the prerogative right of taking private property became merged in the absolutism of Parliament, and the right to compensation as a fundamental right of the subject does not exist independently of Parliamentary enactment. The r....
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....res 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 forms of deprivation of private property by the State. I see no sufficient reason to construe the words "acquired or taken possession" used in clause (2) of article 31 in a narrow technical sense. The Constitution marks a definite break with the old ....
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....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 destruction of the property appropriate. I am of opinion that the word "acquisition" and its grammatical variations should, in the context of article 31 and the entries in the Lists referred to above, be understood in their ordinary sense, and the additi....
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....n, 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 provide expressly that destruction of private property under emergency conditions entails no liability to pay compensation or whether the State's power to do so was so well established that sub-clause (b)(ii)was really unnecessary and must be taken to have ....
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....f 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 the public good or would lead to any alarming consequences to the safety of the community. But why all this ado, it was asked, about protection against deprivation of property by legislative action ? There is no such protection provided in the Constitutio....
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....ch 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 under all circumstance's, it is of great 'potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less. There is a remarkable difference between the characters of the inconveniences which att....
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....or, 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 injury or damage to property, coupled with the equally vague (1) 260 U.S. 393. 3--95 S.G.I./59 and expansive concept of "due process", allow a greater freedom of action to the American courts in accommodating and adjusting, on what may seem to them a just basis, t....
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....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 construction of article 31 of the Constitution. I also concur in the conclusions reached by him, and in his decision of the appeal. DAS J.--I agree that this appeal must be allowed but I have arrived at this conclusion by a different process of reasoning. As the arguments ad....
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....al 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 for the ejectment of respondents Nos. 2 to 6, claiming that he was entitled to recover possession of the lands in suit by virtue of the rights conferred on him by section 37. The respondent No. 2, who was the defendant No. 1, alone contested the suit. His defence was, inter alia, that he was a raiya....
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.... 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) Every decree passed or order made, before the date of commencement of this Act, for the ejectment of any person from any land in pursuance of section 37 or section 52 of the said Act shall, if the decree or order could not have been validly passed or made had this Act been in operation at the date of the passing or making....
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....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 before the commencement of the amending Act. It is, therefore,clear that section 7 affects pre-existing rights bygiving, in effect,retrospective operation to section4 which has sub-stituted, inter alia, the new section 37 for the old section 37 of the Act of 1859. A cursory comparison of the language of the old section 37 with that of ....
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....te 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 properly taken into consideration in determining the reasonableness of the restriction imposed in the interest of the general public. Nor am I satisfied that the loss occasioned to the purchaser by reducing, without any abatement of the 'purchase price, an estate in possession into one in reversion may not also be taken into account in d....
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....lative 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 remedy. Those are all matters which, as already stated, must enter into the judicial verdict as to the reasonableness of the restrictions which article 19 (5) permits to be imposed on the exercise of the right guaranteed by article 19 (1)(f). Further, there is another significant fact which does not appear to have been pressed on the attent....
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....ion 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,"property" anti that as the new section 37 has taken away that property without having made any provision for I compensation there for the impugned section is unconstitutional in that it violates the provisions of article 31 (2). The Bill which eventually became the Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950, was introduced in the ....
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....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 in that article but depended on its compliance with the requirements of articles 21 and 22, and as section 3 satisfied those requirements, it was constitutional." Mahajan J., who by a separate judgment dissented from the majority on another point, not material for our present purpose, said at page 467: "On the other points argued in the case I agree....
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.... 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 in subclause (f), he ceases to have those rights while his incapacity lasts." I reiterated the same opinion in my judgment in ChiranJitlal's case([1950] S.C.R. 869 at p. 919. 4--95 S.C.I./59). Nothing that I have heard on the present occasion has shaken the opinion I expressed in those cases as to the correlation of article 19 (1) (f) read with article 19 (5) ....
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.... 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 in 1791 in the last two clauses of the Fifth Amendment to the Constitution of the United States of America. The contention is that article 31 reproduces those three limitations on the power of eminent domain, namely, that clause (1) announces the necessity for legislative sanction as a pre-requisite for the exercise of the power, thus protecting all persons against expropriation by th....
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....ruing 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 process clause so as to give effect to the suggested enlargement of the scope of our fundamental right to life and personal liberties but had to be interpreted by giving the words their ordinary natural meaning I cannot see why the language of article 31 should not bc construed in the usual way so as to give effect to the plain intention our Constitutionmakers. I say with the utmost humility....
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....w 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 executive fiat and that clause (2) deals with the exercise of the power of eminent domain and places limitations on the exercise of that power. It is these limitations which constitute our fundamental right against the State's power of eminent domain. The language used in article 31(2) clearly indicates beyond doubt that the power of eminent domain as adopted in our Constitution is concerned....
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....) 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 construed by me. (b) Article 19 guarantees the seven rights of the citizens only and recognises and regulates the exercise of police power over those rights by the legislative organ of the State. A non-citizen is entirely outside that article and consequently he has none of those seven rights and has no protection against the State under that article. He has, therefore, to fail back upon article....
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....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. Nambiar cannot succeed and it must be held that we are not entitled to examine the reasonableness or otherwise of the Preventive Detention Act and see whether it is within the permissible bounds specified in clause (5) of article 19". After discussing the matter at some length at pages 302- 305 I concluded on page 306: "In my judgment article 19 has no beating on the question of the validity or otherwise of preventive....
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....e 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 construction which, if adopted, will not save even this meagre protection. The next objection to the conclusion arrived at by me is that police power of depriving a person of his property is amply provided for in article 31 (5) (b) and it is not necessary to read it into article 31 (1). A perusal of clause (5) of article 31 which 1 have already quoted will at once show that that clause excepts certain laws from t....
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....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, in the Constitution of the United States there. is no specific reservation of the police power of the State. There was, therefore, no necessity for expressly saving the police power of our State by a constitutional provision. Why, then, was clause (5) (b) (ii) inserted in article 31 at all ? The answer will become obvious if it is remembered that it is extremely difficult to define precisely the ambit and scope of the S....
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....xation 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 the power of eminent domain by the executive government is to be found in the requirement of a law which alone may authorise the taking of possession or the acquisition of the property which, as will be explained later, is implicit in article 31(2) itself and it is, therefore, not necessary to have recourse to article 31(1) to secure that protection. (iv) To say that the entire police power of the State to deprive a person o....
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.... 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 cars by the military or other personnel during such emergency for the convenience of the travelling public is not within clause (5)(b)(ii) and on this construction will be void if it does not provide for compensation to the tramway company. On the suggested construction pushed to its logical conclusion it will not be possible in future to impose any social control on the profiteers or blackmarketeers, for a law controlling and f....
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....nder 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 by Holmes J. in Noble State Bank v. Haskell (supra), "it may be said in a general way that the police power extends to all the great public needs". In Eubank v. Richmond (226 U.S. 137. ) the Court said of the police power: "It extends not only to regulation which promote the public health, morals, and safety, but to those which promote the public convenience or the general prosperity ......It is the most essential of powers, at ....
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.... 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, and without the sanction of a law deprive any person of his life or personal liberty by reason of article 21 or of his property because of article 31(1) or take possession of or acquire private property under article 31 (2) or impose any tax under article 265. 'Our Constitution makers evidently considered the protection against deprivation of property in exercise of police power or of the power of eminent domain by the executive to be of grea....
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....ection 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 effect that it sounded very much like the Constitution speaking to the legislature that the latter could not infringe our right unless it chose to do so, the majority of this Court declined to question the wisdom and policy of the Constitution or to stretch the language of article 21 so as to square it with its own notions of what the ambit of the right should be but felt bound to give effect to the plain words of the Constitution. (See Kania ....
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....tion 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 overlook that the avowed purpose of our Constitution is to set up a welfare State by subordinating the social interest in individual liberty or property to the larger social interest in the rights of the community. As already observed, the police power of the State is "the most essential of powers, at times most insistent, and always one of the least limitable powers of the government". Social interests are ever expanding and are too numerous to ....
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.... 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 Amendment. I am quite unable to accept this construction and the line of reasoning on which it is founded. In the first place, I deprecate the line of reasoning which starts by likening one thing with another and then ends by (imputing the qualities of the other thing to the first mentioned thing. The cardinal rule of interpretation is to ascertain the meaning and effect of an enactment, constitutional or otherwise, from the words used 'therein. ....
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....e 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 context in which the, word "acquisition" appears in article 31 (2), it can only mean and refer to acquisition of the entire, interest of the previous holder by transfer of title and.........." It' follows from what has been stated above that the word "acquired" used in article 31 (2) must be given the special meaning which that word has acquired and cannot be read as synonymous with: "taken" as used in the Fifth Amendment to the Constitution of the Uni....
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....hat 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 did they use in clause (2) a different expression which, as commonly used and understood, connotes a much narrower meaning ? It would have been quite easy to frame clause (2) by using the word "deprived" instead of the expression "taken possession of oracquired". As our Constitution-makers used different expressions in the two clauses it must be held that they had done so for a very definite purpose and that purpose could be nothing else but to provid....
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....e 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 any acquisition of property involving a transfer of title, there is in each of the above cases a "taking of possession" and destruction of property by the State by authority of law and yet nobody will say that any of the above laws authorise the "taking of possession" of the property within the meaning of article 31 (2) so that if such law does not provide for compensation the law will be unconstitutional and void. Take the case of the Court of Wards A....
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....e 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 authorised by a particular law is a taking of possession in exercise of the power of eminent domain or is a taking of possession in exercise of the State's police power. I have already referred to the nature of the State's police power and quoted from some American decisions showing that the State's police power extends not only to regulations which promote public health, morals and safety but to those which promote the public convenience or the general prosper....
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....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. Without, therefore, attempting any such general enunciation of any inflexible rule it is possible to say broadly that the aim, purpose and the effect of the two kinds of taking of possession are different and that in each case the provisions of the particular law in question will have to be carefully scrutinised in order to determine in which category falls the taking of possession authorised by such law. A consideration of the ultimate aim, the immediate pur....
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....ights 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 dispossession 'of the shareholders from their right of voting at all. The same reasoning applies to the other fights of the shareholders spoken of above, namely, their right of passing resolutions and of presenting winding up petitions. These rights have been restricted undoubtedly and may not be capable of being exercised to the fullest extent as long as the management by the State continues. Whether the restrictions are such as would bring the case within the ....
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.... 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 result of this appeal, I have felt rather reluctant to go into this larger question. But out of profound respect for my Lord the Chief Justice and my learned brother Justice S.R. Das who have dealt with the matter fully and out of a sense of duty to the Court, I venture to express my views briefly. My Lord the Chief Justice is inclined to the view that the fundamental right declared in article 19(1) (f) has no reference to concrete property rights but refers only to the na....
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....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 by article 36) to apply these principles in making laws". While, therefore, I agree in thinking that a substantial measure of social control legislation may become necessary in the fullness of time, that to my mind, is no reason for construing article 31(1) as implying some undefined police power, though such a consideration may have relevance in the determination of the ambit of a fundamental right. On the other hand, I am unable to agree with the view that article 31(1) h....
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....t 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, a deliberate choice of the language used, and where it is not unlikely that having regard to the goal that the Constitution has set to itself in Part IV, certain degree of caution and restraint may well have been intended as to the limits of the right, the intendment of the language used has, in my opinion, to prevail. On the other hand, I am unable to agree with my learned brother Justice S.R. Das that "acquisition" and "taking possession" in article 31 (2) have to be taken as....