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PETITIONER: P.D. SHAMDASANI

       Vs.

RESPONDENT: CENTRAL BANK OF INDIA LTD.

DATE OF JUDGMENT: 21/12/1951

BENCH: SASTRI, M. PATANJALI (CJ) BENCH: SASTRI, M. PATANJALI (CJ) MAHAJAN, MEHR CHAND MUKHERJEA, B.K. DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA

CITATION:  1952 AIR   59            1952 SCR  391  CITATOR INFO :  R          1954 SC  92  (15)  F          1956 SC 108  (7)  D          1959 SC 725  (9)  RF         1976 SC1207  (55,80)

ACT:    Constitution  of India, Arts. 19(1) (f), 31(1), 32  --In- fringement of property rights by private individuals--Appli- cation under Art.32 --Maintainability--Scope of Arts.  19(1) (f) and 31 (1 ).

HEADNOTE:    Article 19(1)(f) of the Constitution is clearly intended to  protect  the  freedom to acquire, hold  and  dispose  of property  against State action other than in the  legitimate exercise  of  its power to regulate private  rights  in  the public interest.  Similarly, article S1(1) provides a  safe- guard against deprivation of property by the State except by procedure  established  by  law.   Violation  of  rights  of property by private individuals is not within the purview of those articles.    A  person  whose rights of property are  infringed  by  a private individual must therefore seek his remedy under  the ordinary law and not by way of an application under  article 32.

JUDGMENT: ORIGINAL  JURISDICTION:  Petition No. 328  of  1951.Petition under article 32 of the Constitution for issue     of  writs in the nature of certiorari, prohibition and mandamus.   The facts appear in the judgment. The petitioner in person.     C.K.  Daphtary,  Solicitor-General  of  India,   (J.  B. Dadachanji, with him) for the respondent.     1951.   December  21.   The Judgment of  the  Court  was delivered by     PATANJALI SASTRI.C.J.--This is a petition under  article

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32 of the Constitution for the enforcement of the  petition- er’s fundamental rights under article 19 (1) (f) and article 31(1)  alleged to have been violated by the Central Bank  of India  Ltd., a company incorporated under the Indian  Compa- nies Act, 1882, and having its registered office at  Bombay, (hereinafter referred to as "the Bank").     It  appears that the petitioner held five shares in  the Share capital of the Bank which sold those shales to a 51 392 third  party in purported exercise of its right of lien  for recovery  of a debt due to it from the petitioner,  and  the transfer was registered in the books of the Bank in the year 1937.  The petitioner thereupon instituted a series of  pro- ceedings  in  the High Court at Bombay on its  original  and appellate jurisdiction challenging the validity of the  said sale  and  transfer. The latest of these proceedings  was  a suit  filed against the Bank in 1951 wherein the plaint  was rejected on 2nd March, 1951, under Order 7, Rule 11 (d),  of the  Code  of Civil Procedure as barred by  limitation.  The petitioner now prays that all the adverse orders made in the previous  proceedings be quashed and the said High Court  be directed  to  have "the above suit set down to be  heard  as undefended and pronounce judgment against the respondent  or to make such orders as it thinks fit in relation to the said suit".  It may be mentioned here that though  the  aforesaid order rejecting the petitioner’s plaint was appealable,  the petitioner did not prefer an appeal on the somewhat extraor- dinary  ground that "the appeal if filed could not be  heard by the Judges of the said Court as all of them were disqual- ified  from  hearing such appeal" either  because  of  their interest  in the Bank or because of their prejudice  against him.     We  are of opinion that the petitioner has  misconceived his  remedy  and  the petition must fail  on  a  preliminary ground.   Neither  article 19 (1) (f) nor article 31 (1)  on its  true  construction  was intended  to  prevent  wrongful individual  acts  or to provide  protection  against  merely private conduct.  Article 19 deals with the "right to  free- dom" and by clause (1) assures to the citizen certain funda- mental freedoms including the freedom "to acquire, hold  and dispose  of property" subject to the power of the  State  to impose  restrictions on the exercise of such rights  to  the extent  and on the grounds mentioned in clauses (2) to  (6). The language and structure of article 19 and its setting  in Part  III of the Constitution clearly show that the  article was intended to protect those freedoms against State  action other than in the legitimate exercise of its power to  regu- late private rights in the  public  interest, 393 Violation of rights of property by individuals is not within the purview of the article.      The  position is no better under article 31  (1).   The petitioner  has  urged that clause (1) should  be  construed apart from and independently of the rest of the article and, if  so construed, its language is wide enough to  cover  in- fringements  of rights of property by  private  individuals. He  laid  emphasis on the omission of the  word  "State"  in clause  (1)  while  it was used in clause (2)  of  the  same article  as  well  as in many other articles  in  Part  III. Referring to entry No. 33 of the Union List, entry No. 36 of the  State List and  entry No, 42 of the Concurrent List  of the  Seventh  Schedule to the Constitution, he  also  argued that,  while these entries read with article  246  empowered Parliament and the State Legislatures to make laws regarding

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acquisition  or requisitioning of property for the  purposes of  the Union or the State as the case may be. no power  was conferred  to make laws regarding "deprivation of  property" by  the  State, so that the  "deprivation"  contemplated  in clause  (1) could only be deprivation by individuals.   Sub- section  (1) of section 299 of the Government of India  Act, 1935, corresponding to clause (1) of article a 1 was, it was pointed out, omitted in the draft article 19 (later numbered as  article 81) which retained in a modified form  only  the provision  contained  in  sub-section (2)  of  that  section relating  to compulsory acquisition of property  for  public purposes.  But,  clause (1) was  subsequently  restored  and article   was enacted in its present form as recommended  in Drafting Committee’s Report and this, it was claimed, showed that clause (1) was intended to operate as a distinct provi- sion apart from clause (2). We see no force in any of  these arguments.     In  support of the argument that clause (1 )  should  be construed  in  isolation from the rest of the  article,  the petitioner  relied  on certain observations of  our  learned brother  Das  in Chiranjit Lal v. The Union  of  India  (1), where  the view was expressed that clause (1)enunciated  the general principle that no person should be deprived (1) [1950] S.C,R,. 860. 394 of his property except by authority of law and laid down  no condition  for  payment of compensation,  while  clause  (2) dealt with deprivation of property brought about by acquisi- tion  or  taking possession of it and  required  payment  of compensation.  In other words, deprivation  referred  to  in clause(1)  must be taken  to  cover  deprivation   otherwise than by acquisition or requisitioning of property dealt with in    clause (2).   We   consider  it  unnecessary  for  the purpose  of the present petition to go into  that  question. Even  assuming that clause (1) has to be read and  construed apart from clause (2), it is clear that it is a  declaration of  the  fundamental right of private property in  the  same negative  form in which article 21 declares the  fundamental right to life and liberty. There is no express reference  to the  State in article 21. But could it be suggested on  that account that that article was intended to afford  protection to  life and personal liberty against violation  by  private individuals ? The words "except by procedure established  by law" plainly exclude such a suggestion. Similarly, the words "save by authority of law" in clause (1) of article 31  show that it is a prohibition of unauthorised governmental action against private property, as there can be no question of one private individual being authorised by law to deprive anoth- er of his property.       The  argument  based on the entries in  the  Lists  is fallacious.  It is not correct to suggest that,  merely  be- cause there is no entry in the Lists of the Seventh Schedule relating  to  "deprivation of property" as such, it  is  not within the competence of the legislatures in the country  to enact a law authorising deprivation of property. Such a  law could  be made, for instance, under entry No. 1 of List  II, entry No. 1 of List II or entry No. 1 of List III.   Article 31  (1) itself contemplates a law being  passed  authorising deprivation of the properties, and it is futile to deny  the existence of the requisite legislative power.     Nor does the legislative history of the article lend any support to the petitioner’s contention. Section 299 395 (1)  of the Government of India Act, 1935, was never  inter- preted  as  prohibiting deprivation of property  by  private

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individuals.   Its restoration, therefore, in the same  form in article 31, after omission in the original draft  article 19,  could lead to no inference in support c. of  the  peti- tioner’s contention, which indeed proceeds on the  fundamen- tal misconception that article 19(1)(f) and article 31  (1), which  are  great constitutional  safeguards  against  State aggression  on  private property, are directed  against  in- fringements by private individuals for which remedies should be sought in the ordinary law.     In  this  view it is unnecessary to  deal  with  certain other  objections  to the maintainability  of  the  petition raised  by the Solicitor-General on behalf of the Bank.  The petition is dismissed. We make no order as to costs.                                   Petition dismissed. Agent for the respondent: Rajinder narain.