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PETITIONER: THE STATE OF BIHAR

       Vs.

RESPONDENT: MAHARAJADHIRAJA SIR KAMESHWAR SINGHOF DARBHANGA AND OTHERS(C

DATE OF JUDGMENT: 27/05/1952

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.

CITATION:  1975 AIR 1083

ACT:     Bihar Land Reforms Act (XXX of 1950)---Law for abolition of zamindaries--Validity--Necessity to provide for compensa- tion and of public purpose--Jurisdiction of Court to enquire into validity-Delegation of legislative powers--Fraud on the Constitution--Constitution   of  India,   1950--Constitution (First  Amendment)  Act,  1951 Arts. 31,  31-A,  31-B,  362. 363--Sch.  VII, List II, entries 18, 36 and List III,  entry 42  --Construction--Spirit  of  the  Constitution-Right   of eminent  domain--"Law",  "Legislature",  "Public   purpose", meanings of--Covenant of  merger--Compulsory acquisition  of private  property of Ruler--Acquisition of arrears  of  rent paying 50%--Deduction for cost of works--Legality. 115 890

HEADNOTE:     Held  per Curiam (MAHAJAN, MUKHERJEA and  CHANDRASEKHARA AIYAR JJ.)--The Bihar Land Reforms Act, XXX of 1950, is  not unconstitutional  or void except with regard to  the  provi- sions in s. 4 (b) and s. 23 (f) thereof.  The provisions  of S. 4 (b) and s, 23 (f)  are  unconstitutional.  Per   PATAN- JALI  SASTRI  C.J. and DAS J.--The whole of the  Bihar  Land Reforms  Act of 1950, including the provisions contained  in s. 4 (b) and s. 23(f) is constitutional and valid.  Per PATANJALI SASTRI C. 3., MAHAJAN, MUKHERJEA, DAS  and CHANDRASEKHARA  AIYAR JJ.--(i) The Bihar Land  Reforms  Act, XXX  of 1950, is not a law in respect of a matter  mentioned in entry 18 of List II, viz., "lands and land tenures",  but a  law  in respect of "acquisition of  property",  a  matter covered by entry 36 of List II. (ii)  The obligation to pay compensation for  property   ac- quired by the State is not an obligation imposed by entry 36 of List II read by itself or in conjunction with entry 42 of list III or by the spirit of the Constitution. Consequently, an  objection  to the validity of a statute  in  respect  of acquisition  of  property  on the ground that  it  does  not provide  for payment of compensation is an objection on  the ground that it contravenes the provisions of art. 31 (2) and the jurisdiction of the Court to entertain such an objection in  respect of a statute mentioned in the Ninth Schedule  to

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the  Constitution  is barred by art. 31 (4), art.  81-A  and art. 31-B of the Constitution.  Per DAS J.-Assuming that the obligation to pay compensation is also implicit in entry  86 of  List  II, in itself or read with entry 42 of  List  III, even  then the validity of the Act cannot be  questioned  by reason of arts. 81 (4), 31-A and 31-B.    (iii)  Section 32(2) of the Act which empowers the  State Government  to frame rules providing for "the proportion  in which compensation shall be payable in cash and in bonds and the manner of payment of such compensation" does not involve any  delegation  of  legislative powers  especially  as  the legislature has itself provided in s. 32(2) that the compen- sation  shall  be payable in cash or in bonds or  partly  in cash and partly in bonds and fixed the number of instalments in which it should be paid. The words "subject to" in  entry 36  of  List II only mean that whenever a law is made  by  a State Legislature in exercise of its legislative power under entry  36, that law will be subject to the provisions  of  a law made by the Parliament under entry 42 of List III.   The words do not mean that when a State makes a law under  entry 36  it  must lay down the principles on  which  compensation payable  for property acquired is to be determined  and  the form and manner in which it should be given.  (iv)  Entries in the Legislative Lists are merely of  an enabling  character.  The power conferred thereunder on  the legislatures is not coupled with any duty on the legislature to exercise 891 such  power and the principle laid down in Julius v.  Bishop of  Oxford [5A.C.214] has, therefore, no application to  the Lists.     Per  PATANJALI   SASTRI  C.J.,  MUKHERJEA  and  DAS  JJ. (MAHAJAN  and  CHANDRASEKHARA. AIYAR  JJ.  dissenting).--The existence  of  a public purpose as a  pre-requisite  to  the exercise of the power of compulsory acquisition is an essen- tial  and integral part of the provisions of art.31 (2)  and an infringement of such a provision cannot be put forward as a  ground for questioning the validity of an  Act  providing for  compulsory acquisition: DAS J.--Even assuming that  the necessity of a public purpose is implied in entry 36 of List II and/or entry 42 of List III also, arts. 31 (4), 31-A  and 31-B  would still protect the Act from being  questioned  on the  ground that the acquisition was not for a  public  pur- pose. In any case the impugned Act is supported by a  public purpose.     Per  MAHAJAN and CHANDRASEKHARA AIYAR jj.--The scope  of art. 31 (4) is limited to the express provisions of art.  31 (2)  and  though  the courts cannot examine  the  extent  or adequacy of the provisions of compensation contained in  any law  dealing with the acquisition of property  compulsorily, yet  the provisions of art. 31 (4) do not in any  way  debar the court from considering whether the acquisition is for  a public purpose.  Though the main object of the Act, viz, the acquisition of estates, is for a public purpose, the  acqui- sition of arrears of rent due to the zamindars on payment of 50  per  cent.  of their value cannot be held to  be  for  a public purpose and sec. 4 clause (b) of the Act is therefore unconstitutional  and void. Per MUKHERJEA J.--Assuming  that art.  31 (4) relates to everything that is provided  for  in art.  31 (2) either in express terms or even  impliedly  and consequently  the  question  of the existence  of  a  public purpose  is not justiciable, as the real object of  sec.  4, clause (b) is to deprive the man of his money, which is  not a subject-matter for acquisition under the powers of eminent domain, without giving anything in exchange, under the guise

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of  acting under entry 42 the legislature has in  truth  and substance evaded and nullified its provisions altogether and sec. 4 clause (b) is therefore unconstitutional and void.     PATANJALI  SASTRI C.J.--Whatever may be the position  as regards  the acquisition of money as such it is not  correct to  say  that a law made under entry 36 of  List  II  cannot authorise  acquisition of choses in action like  arrears  of rent  due  from the tenants which are covered  by  the  term "property" used in that entry and in art. 31. The view  that a payment in cash or in government bonds of half the  amount of  such  arrears leaves the zamindar  without  compensation for the  balance is equally fallacious. Section 4 clause (b) is not therefore ultra vires or unconstitutional. 892     Per  MAHAJAN,  MUKHERJEA and  CHANDRASEKHARA  AIYAR  JJ. (PATANJALI  SASTRI C.J, and DAS J.  dissenting)--Section  23 (b) of the Act which provides for a deduction on a  percent- age  basis  out of the gross assets for "costs of  works  of benefit to the raiyat", is ostensibly enacted under entry 42 of List III, but it is merely a colourable piece of legisla- tion,  a mere device to reduce the gross assets, which  does not  really  come under entry 42  and  is  unconstitutional. PATANJALI SASTRI C J. and DAS J.--  The zamindars are  under an  obligation to maintain and repair the  minor  irrigation works in their villages which are beneficial to the  raiyats and the cost of such works is therefore a perfectly  legiti- mate deduction in computing the net assets of the estate and sec. 23 (f) is not unconstitutional. Further, as payment  of compensation  is not a justiciable issue in the case of  the impugned  statute, having regard to arts. 31 (4),  31-A  and 31-B,  it  is  not open to the Court to  enquire  whether  a deduction  which  results in reducing  the  compensation  is unwarranted and therefore a fraud on the Constitution.     Per  MAHAJAN J.--The phrase "public purpose" has  to  be construed according to the spirit of the times in which  the particular legislation is enacted and so construed, acquisi- tion of estates for the purpose of preventing the concentra- tion of huge blocks of land in the hands of a few  individu- als  and  to  do away with intermediaries is  for  a  public purpose.      DAS J.--No hard and fast definition can be laid down as to  what  is  a ,’public purpose" as the  concept  has  been rapidly  changing in all countries, but it is clear that  it is  the presence of the element of general interest  of  the community in an object or an aim that transforms such object or  aim  into a public purpose, and  whatever  furthers  the general interest of the community as opposed to the particu- lar interest of the individual must be regarded as a  public purpose.

JUDGMENT:     APPEALS  under  article 132 (1) of the  Constitution  of India  from the judgment and decree dated 12th March,  1951, of  the High Court of Judicature at Patna  (Shearer,  Reuben and  Das JJ.) in Title Suits Nos. 1 to 3 and  Mis.  Judicial Cases  Nos. 230-234, 237-244, 2-16 to 254, 257, 261 to  264, 266, 262, 270 to 277, 287-290 and 297 of 1951.  PETITION No. 612 of 1951, a petition under article 32 of the Constitution for enforcement of fundamental rights, was also heard  along with these appeals.     The  facts that gave rise to these appeals and  petition are stated in the judgment. 893

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   M.C.  Setalvad (Attorney-General for India) and  Mahabir Prasad  (Advocate-General  of Bihar) with  G.N.  Joshi,  Lal Narain Singh and Alladi Kuppuswami for the State of Bihar.     P.R. Das (B. Sen, with him) for the respondents in Cases Nos. 339, 319, 327,330 and 332 of 1951.     Sanjib K. Chowdhury. S.N. Mukherjee, S.K. Kapur for  the respondents in Cases Nos. 309, 328, and a36 of 1951.     Urukramdas  Chakravarty   for the respondents  in  Cases Nos. 326,337 and 344 of 1951.     Raghosaran Lal for the respondents in Cases Nos. 310.311 and 329 of 1951.     S  C.  Mazumdar for the respondent in Case  No.  313  of 1951.     S.  Mustarid and Jagadih Chandra Sinha for the  respond- ents in Cases Nos. 307, 313, 320, 321, and 322 of  1951.     Ray  Parasnath  for the respondent in Case  No.  331  of 1951.     S.K.  Kapur  for the petitioner in Petition No.  612  of 1951.     1952. May 2, 5. The Court delivered judgment as  follows :--     PATANJALI SASTRI C.J.--These appeals and petitions which fall into three groups raise the issue of the constitutional validity  of three State enactments called   The Bihar  Land Reforms  Act, 1950 (Bihar Act XXX of 1950), The  Chief  Jus- tice, in his judgment, dealt with the above Cases and  Peti- tion  and also Petitions Nos. 166, 228, 237, 245, 246,  257, 268,  280,  to  285, 287 to 289, 317, 318 and  487  of  1951 (relating  to  the Madhya Pradesh Abolition  of  Proprietary Rights  (Estates  Mahals, Alienated Lands)  Act,  1950)  and Cases Nos. 283 to 295 of 1951 (relating to the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950). 894     The  Madhya  Pradesh  Abolition  of  Proprietary  Rights (Estates,  Mahals,  Alienated  Lands) Act, 1950  (No.  I  of 1951), and      The Uttar Pradesh Zamindari Abolition and Land  Reforms Act, 1950 (U. P. Act No. 1 of 1951) (hereinafter referred to as  the  Bihar  Act, the Madhya Pradesh Act  and  the  Uttar Pradesh Act, respectively).     The common aim of these statutes, generally speaking, is to  abolish  zamindaries and other proprietary  estates  and tenures  in the three States aforesaid, so as  to  eliminate the  intermediaries  by means of compulsory  acquisition  of their  rights  and interests, and to bring the  raiyats  and other occupants of lands in those areas into direct relation with  the Government.  The constitutionality of  these  Acts having  been challenged in the respective State High  Courts on  various grounds, the Bihar Act was declared  unconstitu- tional and void on the ground that it contravened article 14 of  the  Constitution,  the other grounds  of  attack  being rejected,  while the other two Acts were adjudged  constitu- tional  and valid.  The appeals are directed  against  these decisions.   Petitions  have also been filed in  this  Court under article 32 by certain other zamindars seeking determi- nation of the same issues. The common question which  arises for  consideration  in all these appeals  and  petitions  is whether  the  three State Legislatures,  which  respectively passed  the three impugned statutes,  were  constitutionally competent to enact them, though some special points are also involved in a few of these cases.     As  has been stated, various grounds of attack were  put forward in the courts below, and, all of them  having   been repeated   in  the memoranda of appeals and  the  petitions,

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they would have required consideration but for the amendment of  the Constitution by the Constitution  (First  Amendment) Act,  1951  (hereinafter referred to as the  Amendment  Act) which  was passed by the provisional Parliament  during  the pendency of these proceedings. That Act by inserting the new articles 31-A and 895 31-B purported to protect, generally, all laws providing for the acquisition of estates or interests therein, and specif- ically, certain statutes, including the three impugned Acts, from  attacks based on article 13 read with  other  relevant articles of Part III of the Constitution.  And the operation of  these articles was made retrospective by  providing,  in section 4 of the Amendment Act, that article 3 I-A shall  be "deemed always to have been inserted"  and. in article   31- B, that none of the specified statutes "shall be deemed ever to have become void".  The validity of the Amendment Act was in  turn challenged in proceedings instituted in this  Court under article 32 but was upheld in Sankari Prasad Singh  Deo v. Union of India and Stale of Bihar(1).  The result is that the impugned Acts can no longer be attacked on the ground of alleged  infringement of any of the rights conferred by  the provisions of Part III.     It  will be noted, however, that articles 31-A and  31-B afford  only limited protection against one ground of  chal- lenge,  namely  that the law in  question  is  "inconsistent with, or takes away or abridges any of the rights  conferred by any provisions of this Part". This is made further  clear by  the  opening’ words of article  3  I-A  "notwithstanding anything  in  the foregoing provisions of this  Part".   The Amendment  Act thus provides no immunity from attacks  based on  the  lack of legislative competence under  article  246, read with the entries in List II or List III of the  Seventh Schedule  to  the Constitution to enact the  three  impugned statutes, as the Amendment Act did not in any way affect the Lists.   Mr.  P.R. Das, leading counsel for  the  zamindars, accordingly based his main argument in these proceedings  on entry  36 of List Ii and entry 42 of List III which read  as follows:     "36. Acquisition  or ’requisitioning of property, except for the purposes of the Union, subject to the provisions  of entry 42 of List III.     42.  Principles on which compensation for  property  ac- quired or requisitioned for the purposes of the Union (1) [1952] S.C.R. 89. 896 or  of  a  State or for any other public purpose  is  to  be determined,  and the form and the manner in which such  com- pensation is to be given".     The argument may be summarised thus. Entry 36 of List II read  with article 246 (3) was obviously intended to  autho- rise  a State Legislature to exercise the right  of  eminent domain,  that  is, the right of  compulsory  acquisition  of private  property.   The  exercise of such  power  has  been recognised  in the jurisprudence of all civilised  countries as conditioned by public necessity and payment of  compensa- tion.  All  legislation  in this  country  authorising  such acquisition  of  property from Regulation I of 1824  of  the Bengal Code down to the Land Acquisition Act, 1894, proceed- ed  on that footing.  The existence of a public purpose  and an  obligation to pay compensation being thus the  necessary concomitants of compulsory acquisition of private  property, the  term "acquisition" must be construed as  importing,  by necessary implication, the two conditions aforesaid.  It  is a  recognised  rule for the construction of  statutes  that,

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unless the words of the statute clearly 80 demand, a statute is not to be construed so as to take away the property of  a subject  without   compensation: Attorney-General   v.    De Keyser’s  Royal  Hotel(2). The power  to  take  compulsorily raises  by implication a right to payment:  Central  Control Board v. Cannon Brewery(2). The words "subject to the provi- sions  of  entry 42 of List III" in entry 86  reinforce  the argument,  as  these words must be taken to  mean  that  the power to make a law with respect to acquisition of  property should  be exercised subject to the condition that such  law should also provide for the matters referred to in entry 42, in other words, a two-fold restriction as to public  purpose and  payment of compensation (both of which are referred  to in  entry 42) is imposed on the’ exercise of the  law-making power  under entry 36.  In any case, the  legislative  power conferred  under entry 42 is a power coupled with a duty  to exercise  it for the benefit of the owners whose  properties are compulsorily acquired (1) [1920] A.C. 508, 542.         (2) [1919] A.C. 744.    897 under a law made under entry 36.  For all these reasons  the State Legislatures, it was claimed, had no  power to make  a law  for acquisition of property without fulfilling the  two conditions as to public purpose and payment of compensation.    On  the basis of these arguments, counsel  proceeded  to examine elaborately various provisions of the impugned  Acts with a view to show that the compensation which they purport to  provide has, by "various shifts and contrivances",  been reduced  to an illusory figure  as compared with the  market value of the properties acquired.  The principles laid  down for the computation of compensation  operated  in reality as "principles   of confiscation",  and  the enactment  of  the statutes was in truth a "fraud on the Constitution", each of them  being  a colourable legislative expedient  for  taking private properties without payment of compensation in viola- tion  of the Constitution, while pretending to  comply  with its  requirements. Nor were these statutes enacted  for  any public purpose; their only purpose and effect was to destroy the  class  of  zamindars and tenure-holders  and  make  the Government  a  "super-landlord".  While such  an  aim  might commend  itself  as  a proper policy to be  pursued  by  the political party in power, it could not, in law, be  regarded as a public purpose.     Mr.  Somayya, who appeared for some of the zamindars  in the Madhya Pradesh group of cases, while adopting the  argu- ments of Mr. Das, put forward an additional ground of objec- tion.  He argued that the impugned Acts -were not passed  in accordance  with the procedure prescribed in article 31  (3) which provides     "No such law as is referred to in clause (2) made by the Legislature  of a State shall have effect unless  such  law. having  been reserved for the consideration  the  President, has received his assent".     Learned  counsel stressed the words "law" and  "legisla- ture"  and submitted that, inasmuch as the legislature of  a State included the Governor (article 116 898 168)  and a bill could become a law only after the  Governor assented  to it under article 200, clause (3) of article  31 must  be taken to require that a State law authorising  com- pulsory  acquisition of property should receive  the  Gover- nor’s as well as the President’s assent, the former to  make it  a law and the latter to give it "effect".  As the  rela- tive  bills were reserved in each case by the Governor  con-

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cerned  after  they were passed by the House  or  Houses  of Legislature,  as the case may be, without giving his  assent under article 200. the statutes did not satisfy the require- ments of article 31 (3) and so could not have "effect". This ground of attack, it was claimed, was not excluded by  arti- cle 31-A or article 31-B as it was not based on infringement of fundamental rights.     Dr. Ambedkar, who appeared for some of the zemindars  in the Uttar Pradesh batch of cases, advanced a different  line of argument. He placed no reliance upon entry 36 of List  II or entry 42 of List III. He appeared to concede what Mr. Das so  strenuously contested, that those entries, concerned  as they  were with the grant of power to the State  Legislature to  legislate  with respect to  matters  specified  therein, could  not be taken, as a matter of construction, to  import an obligation to pay compensation.  But he maintained that a constitutional prohibition against compulsory acquisition of property without public’ necessity and payment of  compensa- tion  was deducible from what he called the "spirit  of  the Constitution", which, according to him, was a valid test for judging  the constitutionality of a statute   The  Constitu- tion,  being avowedly one for establishing liberty,  justice and  equality  and a government of a free people  with  only limited powers, must be held to contain an implied  prohibi- tion against taking private property without just  compensa- tion  and in the absence of a public purpose.  He relied  on certain American decisions and text-books as supporting  the view  that  a constitutional prohibition can be  derived  by implication  from  the spirit of the Constitution  where  no express   prohibition   has  been enacted  in  that  behalf. Articles 31-A and 31-B barred 899 only objections based on alleged infringements of the funda- mental rights conferred by Part III, but if, from the  other provisions thereof, it could be inferred that  there must be a public purpose and payment of compensation before  private property could be compulsorily acquired by the State,  there was nothing in the two articles aforesaid to preclude objec- tion  on  the ground that the impugned Acts do  not  satisfy these requirements and are, therefore, unconstitutional.     In  addition to the aforesaid grounds of  attack,  which were common to all the three impugned statutes, the validity of  each of them or of some specific provisions thereof  was also challenged on some special grounds. It will be  conven- ient  to deal with them after disposing of the main  conten- tions  summarised  above which are common to all  the  three batches of cases.     These  contentions  are,  in my judgment  devoid  of  of substance  and force and I have no hesitation  in  rejecting them.   The  fact of the matter is the  zemindars  lost  the battle in the last round when this Court upheld the  consti- tutionality  of  the  Amendment Act  which  the  Provisional Parliament  enacted  with  the object,   among   others,  of putting  an end to this litigation. And it is no  disparage- ment  to their learned counsel to say that what remained  of the  campaign  has been fought with such weak  arguments  as overtaxed ingenuity could suggest.     It  will  be  convenient here to set  out  the  material provisions of the Constitution on which the arguments before us have largely turned.     Article    31    (2).    No    property    movable    or immovable  .........  shall be acquired for public  purposes under  any  law  authorising   .........   such  acquisition unless  the law provides for compensation for  the  property acquired  and either. fixes the amount of  compensation   or

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specifies   the principles on which and the manner in  which the compensation is to be determined and given.     (3) No such law as is referred to in clause (2) made  by the Legislature of a State shall have effect unless 900 such law, having been reserved for the consideration of  the President, has received his assent.     (4)  If  any bill pending at the  commencement  of  this Constitution in the Legislature of a State has, after it has been  passed  by  such Legislature, been  reserved  for  the consideration of the President and has received his  assent, then, notwithstanding anything in this Constitution, the law so assented to shall not be called in question in any  court on  the ground that it contravenes the provisions of  clause (2).  (5) Nothing in clause (2) shall affect(a) The provisions of any existing law other than a law to which the provisions of clause (6) apply, or     (b) the provisions of any law which the State may  here- after make-     (i)  for the purpose of imposing or levying any  tax  or penalty, or     (ii)  for the promotion of public health or the  preven- tion of danger to life or property, or     (iii) in pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India and the Government of any other country, or otherwise, with  respect  to  property declared by law  to  be  evacuee property  ......     31-A.   Saving  of  laws providing  for  acquisition  of estates, etc.--(1) Notwithstanding anything in  the  forego- ing provisions of this Part no law providing for the  acqui- sition  by the State of any estate or of any rights  therein or for the extinguishment or modification of any such rights shall  be deemed to be void on the ground that it is  incon- sistent  with, or takes away or abridges any of  the  rights conferred by any provisions of this Part:  .......     31-B.   Validation  of certain  Acts  and  Regulations.- Without  prejudice to the generality of the provisions  con- tained  in  article 31-A none of the  Acts  and  Regulations specified  in the Ninth Schedule nor any of  the  provisions thereof  shall be deemed to be void, or ever to have  become void, on the ground that such Act, 901 Regulation or provision is inconsistent with, or takes  away or abridges any of the rights conferred by any provisions of this  Fart,  and  notwithstanding any  judgment,  decree  or order of any court or tribunal to the contrary, each of  the said   Acts and Regulations shall, subject to the  power  of any competent Legislature to repeal or amend it, continue in force.     It  will be seen that the scope of article 31 (4) is  at once  narrower  and  wider than that of  article  31-A;  the former  has application only to statutes which were  pending in the legislature at the commencement of the  Constitution, whereas  the  latter  is subject  to  no  such  restriction. Again,  article  31 (4)  excludes attack only on the  ground of contravention of article 31 (2), while article 3 I-A bars objections  based  on contravention of other  provisions  of Part  III as well, such as articles 14 and 19.  This  indeed was the reason for the enactment of articles 31-A and  31-B, as the words of exclusion in article 31 (4) were found inapt to  cover objections based on contravention of  article  14. On  the  other hand, the law referred to in article  31  (4) covers  acquisition of any kind of property,  while  article

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31-A relates only to the acquisition of a particular kind of property, viz., estates and rights therein, and what is more important  for our present purpose, the non obstante  clause in  article  31 (4) overrides all other  provisions  in  the Constitution  including  the List of the  Seventh  Schedule, whereas  a law which falls within the purview of  article  a 1-A  could  only prevail over "the foregoing  provisions  of this Part". Now, the three impugned statutes fall within the ambit  of  both article 31 (4) and articles 31-A  and  31-B. Putting  aside  the latter articles for the  moment,  it  is plain  that, under article 31 (4), the three impugned  stat- utes  are protected from attack in any court on  the  ground that they contravene the provisions of article 31(2).  These provisions, so far as they are material here, are (i) that a law with respect to acquisition of property should authorize acquisition  only  for  a public purpose and (ii) that  such law  should  provide for compensation, etc. Mr.  Das,  while admitting that 902 (ii) was a "provision" of article 31 (2), submitted that (i) was  not.   According to him clause (2)assumed but  did  not "provide"  that acquisition should be authorised only for  a public  purpose.  I cannot accept that view. In my  opinion, the  clause seeks also to impose a limitation in  regard  to public  purpose.   The clause was evidently worded  in  that form  as it was copied (with minor variations) from  section 299  (2)  of the Government of India Act,  1935,  which  was undoubtedly designed to give effect to the recommendation of the  Joint  Parliamentary Committee in para.  369  of  their Report  that two conditions should be imposed on  expropria- tion  of  private  property:  "We think  it  (the  provision proposed)  should secure that legislation  expropriating  or authorising  the  expropriation of the property  of  private individuals should be lawful only if confined to  expropria- tion  for public purpose and if compensation  is  determined either in the first instance or in appeal by some  independ- ent  authority". It is thus clear that section 299  (2)  was intended  to secure fulfilment of two conditions subject  to which alone legislation authorising expropriation of private property  should be lawful, and it seems reasonable to  con- clude  that  article 31 (2) was also intended to impose  the same  two  conditions on legislation  expropriating  private property.    In  other  words, article 31 (2)must be  under- stood as also providing that legislation authorising  expro- priation of private property should be lawful only if it was required  for  a public purpose and provision was  made  for payment of compensation.  Indeed if this were not so,  there would be nothing in the Constitution to prevent  acquisition for  a non-public or private purpose and without payment  of compensation--an  absurd result. It cannot be supposed  that the  framers of  the Constitution, while expressly  enacting one of the two well-established restrictions on the exercise of the right of eminent domain, left the other to be import- ed  from the common law.  Article 81 (2) must therefore,  be taken to provide for both the limitations in express  terms. An attack on the   903 ground of contravention of these provisions implies that the law in question authorises acquisition without reference  to a public purpose and without payment of compensation.   This was  precisely the objection raised both by Mr. Das and  Dr. Ambedkar  to  the constitutional validity  of  the  impugned statutes, and such objection really amounts to calling those laws  in  question on the ground that they  contravened  the provisions of article 31 (2), though learned counsel stoutly

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denied  that they were relying on the provisions of  article 31(2).   The denial, however, seems to me to be based  on  a quibbling  distinction  without a difference  in  substance. Their  main  attack was really grounded on  the  absence  of these  two  essential  prerequisites  of  valid  legislation authorising acquisition of private property, though Mr.  Das would  deduce them by implication from entry 36 of  List  II and  entry  42  of List III, while Dr.  Ambedkar  sought  to derive  them from the spirit of the Constitution.  But  this is only a form of stating the objection which, in substance, is  that  the statutes are bad because of the absence  of  a public  purpose and the omission to provide for a just  com- pensation.   This, in fact, was the burden of  the  argument before us. If, then, these two grounds of attack fall within the  purview  of article 31(4), the  words  "notwithstanding anything  in  this  Constitution" are apt  to  exclude  such grounds howsoever they are derived--whether from the entries in the legislative Lists or from the spirit of the Constitu- tion-for  both alike are covered by those words. Indeed,  if the  objection based on the absence of a public purpose  and of a provision for just compensation were still to be  open, clause  (4) of article 31  would be meaningless  surplusage. It  is  obvious that that clause was specially  designed  to protect  the  impugned  statutes and  other  laws  similarly enacted  from  attack  in a court of law  on  the  aforesaid grounds  and, if they were nevertheless to be considered  as not being within the protection, it is difficult to see what the  use of article 31 (4) would be.  Learned  counsel  were unable to suggest any.  The fact is that article 31 (4) was 904 designed  to  bar the jurisdiction of  courts  to  entertain objections to the validity of a certain class of  enactments on  the  two-fold ground referred to above,  and  its  whole purpose  would stand  defeated if the zemindars’  contention were to prevail.     Even  if  it were open to the court to   consider  these grounds  of objection, they are, in my  opinion,  unsustain- able.   As pointed out already, article 31-A operates as  an exception  to article 31 (2) read with article 13,  only  in respect  of  laws authorising acquisition of "estates"   and rights  therein, and this exception is to be deemed to  have been part of the Constitution from its commencement. But  it has no application to laws authorising acquisition of  other kinds of property and, as regards these, the requirements as to  public  purpose and payment of  compensation  are  still enforced by the express provisions of article 31 (2). In the face  of the limitations on the State’s power of  compulsory acquisition  thus incorporated in the body of the  Constitu- tion, from which "estates" alone are excluded, it would,  in my  opinion, be contrary to elementary canons  of  statutory construction to read, by implication, those very limitations into entry 36 of List II. alone or in conjunction with entry 42  of List III of the Seventh Schedule, or to  deduce  them from  "the  spirit of the Constitution", and that,  too,  in respect of the very properties excluded.     It  is true that under the common law of eminent  domain as  recognised in the jurisprudence of all  civilized  coun- tries,  the State cannot take ’the property of  its  subject unless  such property is required for a public  purpose  and without compensating the owner for its loss  But, when these limitations  are  expressly provided for and it  is  further enacted  that  no  law shall be made  which  takes  away  or abridges these safeguards, and any such law, if made,  shall be void, there can be no room for implication, and the words "acquisition of property" must be understood in their  natu-

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ral sense of the act of acquiring property, without  import- ing into  the phrase an obligation to pay  905 compensation or a condition as to the existence of a  public purpose.   The entries in the Lists of the Seventh  Schedule are  designed to define and delimit the respective areas  of legislative competence of the Union and State  Legislatures, and such context is hardly appropriate for the imposition of implied restrictions on the exercise of legislative  powers, which  are ordinarily matters for positive enactment in  the body of the Constitution.     There are indications in article 31 itself to show  that the expression "acquisition of property in entry 36 of  List II does not in itself carry any obligation to  pay compensa- tion.   Clause (4) of that article postulates a "law" autho- rising  acquisition  of   property   but   contravening  the provisions  of clause (2), that is without a public  purpose or payment of compensation.’ Similarly, clause (5)(b), which excepts  certain categories of "laws" from the operation  of clause  (2), contemplates laws being made without  a  public purpose or payment of compensation. Such laws can be made by a  State Legislature only under entry 36 which must,  there- fore,  be taken to confer a legislative power unfettered  by any  implied restrictions.  It was suggested that  the  laws referred to in sub-clause (b) of clause (5) are laws made in exercise  of  the taxing power or the police  power  of  the State  as the case may be, and that the sub-clause  was  in- serted  only  by way of abundant caution. This is  hardly  a satisfactory  answer. Whatever may be the position as  to  a taxing  law, in regard to the source of  legislative  power, laws  under heads (2) and (3) of subclause (b)  must  neces- sarily be referable to, and derive their competence from the legislative  power under entry 36 of List II, in so  far  as they  purport to authorise acquisition of any property,  for the  police power of the State is only the general power  to regulate  and  control the exercise of  private  rights  and liberties  in  the interests of the community and  does  not represent any specific head of legislative power.  And  even that answer is not available to Mr. Das in regard to  clause (4). 117 906     Nor is the position improved for the zemindars by  read- ing  entry 36 of List II and entry 42of List  III  together. It  was  said that the words "subject to the  provisions  of entry  42 in List III" must be taken to mean that  the  law- making power under entry 36 could only be exercised  subject to  the two conditions as to public purpose and  payment  of compensation,  both  of which are referred to in  entry  42. Those  words, in my opinion, mean no more than that any  law made under entry 36 by a State Legislature can be  displaced or  overridden by the Union Legislature making a  law  under entry 42 of List III.  That they cannot bear the interpreta- tion sought to be put upon them by Mr. Das is clear from the fact  that similar words do not occur in entry 33 of List  I which  confers on Parliament the power of making  laws  with respect to acquisition or requisitioning of property for the purposes  of the Union.  For, if the restrictive  conditions as  to public purpose and payment of compensation are to  be derived  only from those words, then it must follow that  in the absence of those words in entry 33,  Parliament can make laws  authorising acquisition or requisitioning of  property without  a public purpose and a provision for  compensation. No  reason was suggested why parliamentary legislation  with respect   to acquisition  or  requisitioning of property  is

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to  be  free from such restrictive  conditions  while  State legislation should be subject to them. The fact is that  the law-making  power of both Parliament and State  Legislatures can be exercised only subject to the aforesaid two  restric- tions,  not by reason of anything contained in  the  entries themselves,  but  by reason of the  positive  provisions  of article 31 (2), and, as laws falling under article 31  (4)or under articles 31-A and 31-B cannot be called in question in a  court  of law for non-compliance with  those  provisions, such  laws  cannot be struck down  as  unconstitutional  and void.     It  was further contended that the power to make  a  law under entry 42 of List III was a power coupled with a  duty, because such law was obviously intended. 907 for  the benefit of the expropriated owners, and  where  the Legislature  has authorised such expropriation, it was  also bound to exercise the power of making a law laying down  the principles  on which such owners should be  compensated  for their loss.  Reliance was placed in support of this somewhat novel contention on the well-known case of Julius v.  Bishop of  Oxford.(1) That case, however, has no application  here. While certain powers may be granted in order to be exercised in favour of certain persons who are intended to be benefit- ed  by their exercise, and on that account may well  be  re- garded  as  coupled  with a duty to exercise  them  when  an appropriate  occasion for their exercise arises,  the  power granted  to a legislature to make a law with respect to  any matter  cannot  be brought under that  category,  It  cannot possibly  have been intended that the legislature should  be under an obligation to make a law in exercise of that power, for no obligation of that kind can be enforced by the  court against a legislative body.    Mr. Somayya’s  argument  based  on clause (3) of  article 31,   to which reference has been made earlier,  is  equally untenable.   It  is true that the "Legislature" of  a  State includes  the  Governor and that a  bill  passed  by    such Legislature cannot become a law until it receives the Gover- nor’s  assent.   Article 200, however, contemplates  one  of three  courses being adopted by the Governor when a bill  is presented  to him after it is passed by the House or  Houses of  Legislature: (1) to give his assent, or (2) to  withhold assent, or (3) to reserve the bill for the consideration  of the  President.   The first proviso, to that  article  deals with  a  situation where the Governor is bound to  give  his assent and has no relevance here.  The second proviso  makes reservation  compulsory where the bill would, "if it  became law",  derogate from the powers of the High Court, but  such reservation, it is important to note, should be made without the  Governor himself giving his assent to the bill.  It  is significant that the article does not contemplate the (1) L.R. 5 H.L. 214. 908 Governor giving his assent and thereafter, when the bill has become  a full-fledged law, reserving it for the  considera- tion  of the President.  Indeed, the Governor is  prohibited from giving his assent where such reservation by him is made compulsory.  The Constitution would thus seem to contemplate only  "bills" passed by the House or Houses  of  Legislature being  reserved for the consideration of the  President  and not  "laws"  to  which the Governor has  already  given  his assent.  It was said that article 31 (3) provides a  special safeguard which, in order to ensure that no hasty or  unjust expropriatory legislation is passed by a State  Legislature, requires for such legislation the assent of both the  Gover-

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nor  and the President, and, to make this clear, the  words, ’law"  and  "legislature" were deliberately used  in  clause (a).  I am unable to agree with this view.  The term "legis- lature" is not always used  in the Constitution as including the Governor, though article 168 makes him a component  part of the State Legislature.  In article 173, for instance, the word is clearly used in the sense of the ,,Houses of  legis- lature"  and excludes the Governor. There are  other  provi- sions also where the word is used in contexts which  exclude the Governor.  Similarly the word "law" is sometimes loosely used  in referring to a bill. Article 31 (4), for  instance, speaks  of  a  ’’bill" being reserved  for  the  President’s assent  "after it has been passed" by the "legislature of  a State"  and of "the law so assented to."  If the  expression "passed  by the legislature" were taken to mean  "passed  by the Houses of the legislature and assented to by the  Gover- nor"  as  Mr.  Somayya would have it  understood,  then,  it would  cease to be a "bill" and could no longer be  reserved as  such.  Nor is the phrase "law so assented  to"  strictly accurate,  as  the previous portion of the clause  makes  it clear  that what is reserved for the President’s assent  and what  he assents to is a "bill" and not a law.   The  phrase obviously  refers to what has become a law  after  receiving the   assent  of  the President.  Similarly, article 31  (3) must, in any judgment, be understood as 909 having  reference to what,  in  historical sequence,  having been passed by the House or Houses of the State  Legislature and  reserved by the Governor for the consideration  of  the President  and assented to by the latter, has thus become  a law.  If  it was intended that such a law  should  have  the assent  of  both the Governor and the President,  one  would expect  to find not only a more clear or explicit  provision to  that effect, but also some reference in article  200  to the Governor’s power to reserve a measure for the considera- tion of the President after himself assenting to it.  On the other hand, as we have seen, where reservation by the Gover- nor  is  made obligatory, he is prohibited from  giving  his assent.     In  the view I have expressed above that the  objections based  on  the-lack of a public purpose and the  failure  to provide  for payment of just compensation are  barred  under article 31 (4) and are also devoid of of merits, it  becomes unnecessary to consider what is a public purpose and whether the  acquisition  authorised by the impugned  statutes  sub- serves  any public purpose.  Nor is it necessary to  examine whether  the  scheme  of compensation provided  for  by  the statutes is so illusory as to leave the expropriated  owners without  any real compensation for loss of their property.     Turning now to the special points arising in  particular cases,  it  was urged by Mr. Das that section 4 (b)  of  the Bihar  Act, which provides that all arrears of rent,  royal- ties and cesses due for any period prior to the date of  the vesting  of  the estates in Government "shall  vest  and  be recoverable by the State" was unconstitutional and void.  In the first place, there was no public purpose to be served by the acquisition of such property.  The Government  evidently lacked funds for the payment of even the illusory  compensa- tion provided for in the Act, and accordingly, hit upon  the device   of acquiring  these arrears on payment of  only  50 per cent. of their value as provided in section 24.  Raising funds 910 for  augmenting  the  Treasury could not be  regarded  as  a public  purpose such as would justify expropriation of  pri-

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vate  property  Secondly, it was said that  these  ’arrears’ would represent so much money when realised, and money could not be the subject of compulsory acquisition as the  obliga- tion to pay compensation would practically turn such  acqui- sition into a forced loan.  Nor could the payment of 50  per cent of the face value of the arrears be regarded as compen- sation for the loss of the total arrears, for, refund of one half of a sum of money taken away could never make good  the loss of the. balance.  The argument proceeds on a misconcep- tion.  Whatever may be the position as regards the  acquisi- tion  of money as such, it is not correct to say that a  law made under entry 36 of List II cannot authorise  acquisition of  choses in action like arrears of rent due from the  ten- ants  which are covered by the term "property" used in  that entry  and in article 31. It is equally fallacious to  argue that  a payment in cash or ’in Government bonds of half  the amount of such arrears leaves the zemindar without compensa- tion  for  the balance.  It is unrealistic  to  assume  that arrears  which  had remained uncollected over  a  period  of years  during which the zemindar as landlord had the  advan- tage  of summary remedies and other facilities  for  collec- tion,  represented  so much money or money’s  worth  in  his hands  when he was to cease to be a landlord and to have  no longer  those  remedies and facilities.  When  allowance  is made for doubtful and irrecoverable arrears and the  trouble and  expense involved in the collection of the rest of  them the payment of 50 per cent. of the face value of the  entire arrears  must, as it seems to me, be  considered  reasonable and  fair  compensation for taking them  over.  Indeed,  the contention  leaves one almost wondering what  advantage  the zemindars would gain by seeking to overthrow a provision  in the  Act which may well prove beneficial to  them.   However that  may be, for the reasons already indicated, article  31 (4)  bars a challenge on these two grounds, and  the  objec- tions to section 4 (b) cannot be entertained.     911     An  attack was also directed against section 28 (1)  (f) which provides for a deduction on a percentage basis out  of the gross assets as "cost of works of benefit to the raiyats of such estate or tenure", in ascertaining the net assets on which  compensation is to be based. It was said  that  there was no evidence to show that it was usual for the  zemindars to incur such expenditure, and that the deduction was a mere contrivance  to  reduce  the compensation  payable  for  the acquisition of their estates.  The provision for such deduc- tion  was therefore a fraud on the Constitution.  The  argu- ment, however, overlooks the well-established obligation  of the  Zemindars to maintain and repair the  irrigation  tanks and channels in the villages comprised in their estates.  As the  Privy Council pointed out in The Madras Railway Co.  v. Zemindar  of Carvatenagaram(1) "the zemindars have no  power to  do  away with these tanks in the  maintenance  of  which large  numbers  of people are interested, but  are  charged, under  Indian law, by reason of their tenure, with the  duty of  preserving and repairing them".  These  are,  obviously, the works of benefit to the raiyats of the estate, and their cost,  which the zemindars are thus under an  obligation  to bear,  is a perfectly legitimate deduction in computing  the net  assets  of the estate.  If the zemindars  had,  in  the past, neglected this duty, that does not affect the proprie- ty  of  the deduction before  determining  the  compensation payable to them.  It is, therefore, idle to say that it is a mere contrivance for reducing the compensation.  This apart, if,  as I have endeavoured to show, payment of  compensation is  not  a  justiciable issue in the case  of  the  impugned

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statutes,  having regard to articles 31 (4),31-A and 3  1-B, it  is not open to the court to inquire whether a  deduction which  results in reducing the compensation  is  unwarranted and therefore a fraud on the Constitution.     LastLy, Mr. Das turned his attack on section 32 (2) read with section 43 (2) (p).  Under the former provision compen- sation was payable in cash or in bonds or partly in cash and partly in bonds.  The bonds (1) (1874) 1 I.A, 364, 912 were to be either negotiable or non-negotiable and nontrans- ferable and were payable in forty equal instalments.   Power was given to the State Government under section 43 (2)(p) to frame rules providing for "the proportion in which compensa- tion  shall  be payable in cash and in bonds and the  manner of  payment  of such compensation".  It  was   argued  that, while  the Constitution conferred power on the  legislatures under entry 42 of List III to make laws with respect to  the principles  on which compensation for property acquired  was to  be  determined and  the  form and the manner   in  which such  compensation was to be given, it was   not   competent for the Bihar Legislature to delegate this essential  legis- lative power to the executive government. Section 43  (2)(p) being  thus void and inoperative, section 32 (2)  must  also fall  to the ground, being vague and incapable by itself  of being  given effect to, and, as payment of compensation  was an inextricable part of the scheme of acquisition under  the Act,  the entire Act must go.  I see no force in this  argu- ment.   The legislature has applied its mind to the form  in which  compensation has to be paid and has fixed the  number of  equal instalments in which it should be paid.   It,  has also  provided for payment of interest on  the  compensation amount in the meantime.  The proportion in which the compen- sation could be paid in cash and in bonds and the  intervals between  the instalments have been left to be determined  by the executive government as those must necessarily depend on the financial resources of the State and the availability of funds in regard to which the executive government alone  can have  special means of knowledge. By no standard of  permis- sible delegation can the vesting of such limited  discretion by a legislature in an administrative body be held  incompe- tent.   The same remark applies to the delegation  of  rule- making powers in regard to payment of compensation under the other two Acts.     It was contended by Mr. Somayya that the Madhya  Pradesh Act was not duly passed as no question was put by the Speak- er, at the third reading of the bill 913 on the motion that it be passed into law, as required by the provisions  of rule "20 (1) of the rules governing  legisla- tive business then in force, and that the omission was not a mere  "irregularity of procedure" which the court is  barred from  enquiring into under article 212 (1)of  the  Constitu- tion.  Rule 20 (1) reads as follows:     "A  matter requiring the decision of the Assembly  shall be  decided by means of a question put by the Speaker  on  a motion made by a member".     What  appears  to  have happened is this.   One  of  the Ministers  moved that "The C.P. and Berar Abolition of  Pro- prietary  Rights  (Estates, Mahals, Alienated  Lands)  Bill, 1949, (No. 64 of 1949) as considered by the House be  passed into  law".   Thereupon the Speaker read the motion  to  the House,  and this was followed by several speeches  welcoming the  measure,  amid general acclamation in the House,  as  a great  boon to the tillers of the soil. The official  report

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of  the  proceedings prepared by the  Secretary  under  rule 115(1),  however,  did not record that the Speaker  put  the question in the usual form:  "The question is etc." and that the  motion  was carried.  It was argued that  the  official report  being the only "authentic record of the  proceedings of  the Assembly" under rule 115(2), it must be taken to  be conclusively established that the motion was not put to  the House  and carried by it. There is, in my opinion,  no  sub- stance  in  the  objection.  The original  Bill  signed  and authenticated by the Speaker was produced before us, and  it contains  an  endorsement  by  the  speaker  that  the  Bill was.passed by the Assembly on 5th April, 1950. The  endorse- ment was signed by the Speaker on 10th May, 1950. The  offi- cial report of the proceedings appears to have been prepared on  21st  June, 1950, and was signed by the Speaker  on  1st October, 1950. When he signed the report the Speaker did not apparently notice the omission as to the motion having  been put  and carried. Such omission cannot, in the face  of  the explicit  statement by the Speaker endorsed on the Bill,  be taken 118 914 to  establish  that the Bill was not put to  the  House  and carried by it.  In any case, the omission to put the  motion formally  to  the House, even if true, was, in  the  circum- stances,  no more than a mere irregularity of procedure,  as it  is  not disputed that the overwhelming majority  of  the members  present and voting were in favour of  carrying  the motion and no dissentient voice was actually raised.     Mr.  Somayya raised a further contention that in  regard to  the malguzari lands covered by the Madhya  Pradesh  Act, articles  31-A  and 31-B could be of no  assistance  to  the Government,  as  such  lands are not  "estates"  within  the meaning  of  clause  (2) of article  31-A  with  the  result that .the objection based on article 14 as to discrimination in  the matter of payment of compensation must  prevail.  It will be recalled that the High Court of Patna held the Bihar Act  unconstitutional as being discriminatory  in  providing for  payment  of compensation, and it was to  overcome  that difficulty  that articles 31-A and a1-B were inserted in the Constitution.   It  was conceded by  the  learned  Advocate- General  of Madhya Pradesh that these malguzari lands  could not  be  regarded as estates within the meaning  of  article 31-A read with the Tenancy Acts in force in Madhya  Pradesh, but he contended that, inasmuch as article 31-B purported to validate  specifically the Madhya Pradesh Act among  others, and  as that article was not limited in its  application  to estates,  the  objection could not  prevail.   Mr.  Somayya, however, submitted that the opening  words of article  31-B, namely,  "Without prejudice to the generality of the  provi- sions contained in article 31-A" showed that the mention  of particular  statutes  in article 31-B read  with  the  Ninth Schedule  was  only  illustrative,  and  that,  accordingly, article  31-B  could not be wider in  scope.   Reliance  was placed in support of this argument upon the decision of  the Privy  Council in Sibnath Banerji’s case(1). I cannot  agree with  that view.  There is nothing in article 31-B to  indi- cate that the specific mention of (1) [1945] F.C.R. 195 (P.C.)    915 certain statutes was only intended to illustrate the  appli- cation  of the general words of article 31-A.   The  opening words  of article 31-B are only intended to make clear  that article 31-A should not be restricted  in its application by reason  of anything contained in article 31-B and are in  no

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way  calculated  to restrict the application of  the  latter article or of the enactments referred to therein to acquisi- tion  of  "estates."  The decision cited affords  no  useful analogy.  In  some of the cases the estates sought to be  acquired are situated in what was previously the territory of  Indian States and belong to their former rulers.  On the merger  of those States in Madhya Pradesh or Uttar Pradesh, as the case may  be, by virtue of the "covenant of merger" entered  into between  the rulers and the Government of India the  proper- ties in question were recognised to be the "private  proper- ty"  of  the Rulers. In these eases it was urged  that  that estates  sought  to be acquired formed part of  the  Rulers’ "personal rights" guaranteed to them under the instrument of merger,  and  that  neither the impugned  statutes  nor  the notifications  issued thereunder could deprive the Ruler  of such properties in contravention of article 362.  The Attor- ney-General had several answers to this argument,  including the  bar  under  article 363 to interference  by  courts  in disputes  arising  out of agreements,  covenants,  etc.,  by Rulers of Indian States to which the Government of India was a  party.  But a short and obvious answer is that there  was no  contravention  of  any  guarantee  or   assurance  given by  the  Government  under the covenant of  merger,  as  the estates  in question are sought to be acquired only  as  the "private  property"  of the Rulers and not  otherwise.   The compensation provided for, such as it is, is in  recognition of  their  ’private proprietorship, as in the  case  of  any other  owner.  There is, therefore, no force in this  objec- tion.  In  Appeal No. 285 of 1951 preferred by the  Raja  of Kapurthala,  where  a similar objection was raised,  it  was further alleged that the privy purse of the Ruler was  fixed at a low figure in consideration of the Oudh 916 Estate  being  left  to be enjoyed by  him  as  his  private property, and that its compulsory taking over would  deprive him  of the means of discharging his liability  to  maintain the  members of his family.  In the absence of any  material to establish the facts, the allegation calls for no  consid- eration.     Certain  other minor points were also raised in some  of the cases but they are not worth mentioning as they proceed- ed either on a misapprehension or were palpably unsound.     Thus  all  the objections raised to  the  constitutional validity  of the Bihar Act, the Madhya Pradesh Act  and  the Uttar  Pradesh  Act or any part thereof fail and  are  over- ruled,     MAHAJAN  J.--This is an appeal under article 132 (3)  of the Constitution of India from a judgment of the Full  Bench of  the  High Court of Judicature at Patna, dated  the  12th March, 1951, whereby the High Court declared the Bihar  Land Reforms  Act,  1950, ultra vires on the ground  of  its  in- fringement  of article 14 of the Constitution,  but  decided against the respondent on all other points.     On  the 30th December, 1949, a Bill intituled the  Bihar Land Reforms  Bill was introduced in the Legislative  Assem- bly  of Bihar and was passed by both the Houses of  Legisla- ture,  and after having been reserved for the  consideration of  the President of India, received his assent on the  11th September, 1950. The Act was published in The Bihar  Govern- ment  Gazette on the 25th September, 1950, and on  the  same day  a notification under section 1 (3) of the Act was  pub- lished declaring that the Act would come into  force   imme- diately.   On the  same day, a notification under section  3 of  the Act was published stating that the estates and  ten-

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ures  belonging to the respondent and two others  passed  to and became vested in the State of Bihar under the provisions of  the  Act.  The respondent filed a petition in  the  High Court  of Judicature at Patna under article 226 of the  Con- stitution, challenging the constitutionality of the    917 said  Bihar Land Reforms Act and praying for a writ  in  the nature  of mandamus to be issued on the State of  Bihar  re- straining  it  from acting in any manner by  virtue  of,  or under the provisions of, the said Act.  This application was heard along with three title suits and other similar  appli- cations  filed  by various zemindars of Bihar by  a  Special Bench  of the High Court.  By three separate but  concurring judgments, the Court declared the Act to be unconstitutional and  void on the ground of its infringement  of  fundamental right under article 14 of the Constitution.     The  validity  of the Act was attacked before  the  High Court on the following grounds:     1. That the Bihar Legislature had no competence to  pass it.     2.  That it contravened clause (1) of article 81 of  the Constitution.     3. That the vesting of the estates in the State of Bihar under the Act being in effect an acquisition of the estates, it  was  invalid as that acquisition was not  for  a  public purpose and the provision for compensation was illusory.     4. That it contravened article 19 (1) (f) of the Consti- tution.     5.  That  some  of its provisions were  invalid  on  the ground of delegation of legislative powers. 6. That it was a fraud on the Constitution.     7. That it was unconstitutional as it contravened  arti- cle 14 of the Constitution. The Court held as follows :--     1. That the Bihar Legislature was competent to enact the legislation.     2. That the Act did not contravene article 31 (1) of the Constitution.     3.  That the acquisition of the estates and tenures  was for a public purpose.     4. That the subject-matter of the Act fell under article 31 (4) of the Constitution. 918 5. That article 19 (1) (f) had no application.      6. That whatever powers were delegated to the executive were permissible.     7. That the Act was not a fraud on the Constitution.     8.  That the Act was unconstitutional as it  contravened article 14 of the Constitution.     During  the pendency of the appeal against the  decision of the High Court the Union Government with a view to put an end  to  the litigation of the zamindars brought  forward  a Bill  to amend the Constitution and this was passed  by  the requisite  majority  as the Constitution  (First  Amendment) Act, 1951.  The zamindars brought petitions under article 32 of  the Constitution impugning the Amendment Act  itself  as unconstitutional and void.  All these petitions were  disal- lowed.  by this Court on the 5th October, 1051, and  it  was held that the Constitution (First Amendment) Act, 1051,  had been  validly enacted.  In view of the Amendment   Act   any argument regarding the unconstitutionality of the Bihar  Act based  on the ground that the provisions of that  Act   con- travened  articles  14,  19  or 31 of the Constitution  does not  survive  and the Act is not open to challenge.  on  any such  ground. As the Act has been held invalid by  the  High

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Court  solely on the ground that it violated the  provisions of article 14 of the Constitution, the basis of the judgment declaring the Act to be unconstitutional is no longer  tena- ble  and it has therefore to be reversed in case this  Court agrees  with  the decision of the High Court on  the  points decided against the respondent.     Mr. P.R. Das for the respondent frankly conceded that no objection to the validity of the Act at this stage could  be raised  on the ground that it contravened any of the  provi- sions  of Part III of the Constitution.  He,  however,  sup- ported the decision of the Court on grounds decided  against him by that Court and urged the following points     919     1.  That it was not within the competence of  the  Bihar State Legislature to enact the impugned Act.     2.  That  the acquisition of the estates not  being  for public purpose, the Act was unconstitutional.     3. That the legislative power in various sections of the Act  has been abdicated in favour of the executive and  such abdication of power was unconstitutional.     4. That the Act was a fraud on the Constitution and that certain  parts of the Act were unenforceable on  account  of vagueness and indefiniteness.     The foundation of Mr. P.R. Das’s attack on the vires  of the  Act mainly rests on the contention that it is  implicit within  the language of entry 36 of List II of  the  Seventh Schedule  of  the Constitution that property  could  not  be acquired without payment of compensation, the only effect of a  compulsory  power of acquisition against  the  individual being  that  there is the power to oblige him  to  sell  and convey property when the public necessities require it,  but that the power to take compulsorily raises by implication  a right  to  payment; in other words, there is  a  concomitant obligation  to pay and the power to acquire  is  inseparable from  the obligation to pay compensation and as  the  provi- sions  of the statute in respect of payment of  compensation are illusory, it is unconstitutional.     As  regards  article 31 (2) of the Constitution,  it  is said  that  it deals with the  fundamental  right  regarding property  which is expressed in the clause in negative  lan- guage.  In entry 36 it is expressed in an affirmative  form. The provisions of articles 31 (4) and 31-A and 31-B,  though they  deprive  the  expropriated proprietor  of  his  rights provided in Part III of the Constitution, do not in any  way affect the ambit of entry 36 and empower the State  Legisla- ture  to make a law for compulsory acquisition  of  property without  payment of compensation in the true sense  of  that term.  Emphasis is laid on the words "subject to the  provi- sions of entry 42" contained in entry 36 and it is contended that the exercise of legislative power under 920 entry 36 is conditional on exercise of power under entry 42, that  one could not be exercised without the other and  that the  power conferred by the two entries had to be  construed on  the assumption that the acquisition was to be paid  for. It is further contended that the legislative power in  entry 42  is a power coupled with duty which the  legislature  was bound  to  exercise  for the benefit  of  the  person  whose property  was  taken in exercise of  the  legislative  power under  entry 36. It is also said that the Bihar  Legislature had legislated both under entry 36 and entry 42 and intended to take the property conditional on payment of  compensation but  if it transpires that the provisions it has made  about payment of compensation are illusory, then that part of  the Act would be void and as it could not have been intended  by

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the  legislature  to pass the Act in any truncated  form  in which it would remain if the provisions regarding  compensa- tion  are  taken  out of it, the whole Act  should  be  held unconstitutional.     To  appreciate the contentions raised by Mr. Das on  the question of the competence of the Bihar Legislature to enact the  Bihar Land Reforms Act, 1950, it is necessary to  refer to  its provisions and to see on what subjects the  legisla- ture has purported to enact the law.     The title of the Act indicates that the law provides for some  kind of land reform in Bihar.  Its preamble  gives  no indication as to the nature of these reforms except that  it provides  for  the   constitution of a  Land  Commission  to advise the State Government on the agrarian policy, whatever that  expression may mean.  The dominant purpose of the  Act is  that  of transference to the State of the  interests  of proprietors and tenure-holders in land and of the mortgagees and  lessees  of such interests including the  interests  in trees,  forests, fisheries, jalkars, ferries, huts,  bazars, mines  and minerals. Section 3 provides that the  Government may, from time to time, by notification declare the  estates or  tenures  mentioned  therein to have  passed  and  become vested  in the State.  Section 4 mentions ,the  consequences of such vesting. It enacts that the  921 interests of the proprietor or tenure-holder in any building or part of a building comprised in such estate or tenure and used  primarily as office or cutchery for the collection  of rent  of such estate or tenure, and his interests in  trees, forests,  fisheries, jalkars, huts, bazars and  ferries  and all  other  sairati interests as also his  interest  in  the subsoil   including  any   rights  in  mines  and  minerals, whether discovered or undiscovered, or whether being  worked or  not,  inclusive of such rights of lessee  of  mines  and minerals, comprised in such estate or tenure (other than the interests of raiyats or under raiyats) shall vest absolutely in  the State free from all incumbrances.  Clause  (b)  pro- vides that all arrears of rents, including royalties and all cesses  together with interest, if any, due thereon for  any period prior to the date of vesting, which were  recoverable in  respect of the estates or tenures of the  proprietor  or tenure-holder  and the recovery of which was not  barred  by any law of limitation shall vest in, and be recoverable  by, the  State.  The expression "arrears of rent"  includes  ar- rears in respect of which suits were pending on the date  of vesting  or in respect of which decrees whether  having  the effect  of rent decree or money decree were obtained  before the date of such vesting and had not been satisfied and were not barred by limitation and also includes the costs allowed by  such  decrees. In other words, all outstandings  in  the nature  of rents and rent decrees that were due to the  pro- prietors  or tenure-holders before the date of  vesting  and before  the  State had any right, title or interest  in  the estate  would also pass to it. This seems to be  a  peculiar and  rather extraordinary consequence of the vesting  of  an estate.   Normally it has no relation to and cannot  be  re- garded  as an incident of the transference of  the  estates. The clause is in effect,an independent provision laying down that  monies due to the proprietor or  tenure-holder  during the period antecedent to the vesting and not realized by him but  which  were in the course of  realization,  whether  by private  effort  or  by means of pending  suits  or  decrees including the costs of those 119 922

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suits  and  decrees will stand forfeited to  the  State.  In clause (c) the liability of the proprietors or tenureholders for payment of arrears of revenue and cesses to the  Govern- ment prior to the date of vesting is kept alive.  The  other consequences  of vesting are that no suit can be  maintained for recovery of any money from a proprietor or tenure-holder which  is secured by a mortgage or charge on the estate  and no  such estate or tenure covered by the Act is  liable  to. attachment. The Collector is entitled to take charge of  the estate  and to inspect the documents and accounts  which  he thinks  necessary to do for the management of the estate  or tenure.  Section 5 permits the proprietors and  tenure-hold- ers  to retain their homesteads but only in the capacity  of tenants  free  from the obligation to pay rent.   Section  6 allows  them  to retain possession of lands  in  their  khas possession  or in the possession of lessees under  them,  on payment  of  rent as raiyats to the State in the  status  of occupancy  tenants.  Section 7 provides that  buildings  to- gether  with lands on which such buildings stand and in  the possession  of  proprietors and tenure-holders and  used  as golas,  factories  or  mills shall be retained  by  them  on payment  of  rent.  Section 8 gives a right of appeal  to  a party  aggrieved against the Collector’s order. In  section0 it  is  provided that all mines comprised in the  estate  or tenure as were in operation at the commencement of this  Act and were being worked directly by the proprietor or  tenure- holder  shall  be deemed to have been leased  by  the  State Government to the proprietor of tenure-holder. This  section does not include within its scope mines on which  considera- ble  money might have been spent but which are actually  not in  Operation.  An artificial definition has been  given  in section  (2)  sub-clause  (m) to the  expression  "mines  in operation"  as meaning mines regarding the working of  which notice has been served on Government under the Indian  Mines Act.   Section 10 keeps alive subsisting lease of mines  and minerals,  the lessee being deemed to be a lessee under  the Government.  Buildings and lands appurtenant to a mine stand transferred   923 to the State under the provisions of section 11 and they are to  be deemed’ to be leased by the State to the lessee  with effect  from the date of vesting. Section 12 lays  down  the constitution of  a Mines  Tribunal. Section 13 provides  for the  management of the estates and tenures that vest in  the State.   Sections  14,  15, 16, 17 and  18  make  provisions relating  to the investigation of debts of  proprietors  and tenure-holders and     lay down the procedure for payment of those  debts.  In section 19 provision is made for  the  ap- pointment  of compensation officer.  Certain directions  are given  in sections 20 and 21 regarding the procedure  to  be adopted by the compensation officer when the proprietor  has only  a certain share in an estate and where certain  trusts have  been  created  by  the  tenure-holder  or  proprietor. Section  22  defines "previous agricultural  year"  and  the phrase  "gross  assets" with reference to  a  proprietor  or tenure-holder.   "GroSs assets" in the Act means the  aggre- gate  of the rents including all cesses, which were  payable in  respect of the estates or tenures of such proprietor  or tenureholder  for the  previous agricultural  year,  whether payable by a subordinate tenant or the raiyats.those  rents. In the expression "gross assets" is also included the  gross income  of  the previous agricultural year  from  fisheries, trees, jalkars, ferries, huts, bazars and sairati interests. Gross income  from forests has to be calculated on the basis of  the average gross annual income of twenty-five  agricul-

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tural  years  preceding the agricultural year in  which  the date  of  vesting falls, which in the opinion  of  a  forest officer,  the  forests would have yielded if they  had  been placed during the said period of twenty-five years under the management of the State.     Section  23 lays down the method of computation  of  net income.  It provides that the net income of a proprietor  or tenure-holder shall  be computed by deducting from the gross asset  of such proprietor or tenure-holder, as the case  may be,  the following : (a) any sum payable as land revenue or rent; 924     (b)  any sum payable by such proprietor as  agricultural income-tax  in  respect of any agricultural  income  derived from  such  estate or tenure for the  previous  agricultural year;     (c) any sum payable by such proprietor or tenure  holder as  income-tax  in respect of any income derived  from  such estate  or  tenure, other than royalties  for  the  previous agricultural year;     (d) any sum payable as chaukidari tax or municipal tax,     (e) cost of management of such estate or tenure at rates varying  from  five  to twenty per cent.  according  to  the amount of the gross asset.  The lowest limit fixed is at Rs. 2,000, and the highest at any amount exceeding Rs. 15,000.     These  rates appear to have been fixed in  an  arbitrary manner bearing no relation whatsoever to the actual cost  of management.   To illustrate, in the case of the Maharaja  of Darbhanga  whose estate has a gross income of nearly  forty- eight  lakhs,  the  cost of management,  according  to  this calculation,  would  work’ out to a sum of nine and  a  half lakhs,  which  on  the face of it looks  startling;  it  can hardly  have  any relation to the costs  actually  incurred. The expense ratio under the head "management would ordinari- ly  be  lowest for the highest gross income. It goes  up  in proportion  to the reduction in the amount of gross  income. The  Act has, however, reversed this rule of economics  with the  result  that part of the money that on  the  principles stated for determining compensation would be payable by  way of  compensation to the proprietor or  tenure-holder  stands forfeited  by this artificial reduction of the  net  income. Clause  (f) provides for deduction from the gross assets  of cost  of works of benefit to the raiyats of such estates  or tenures at rates varying from four to twelve and a half  per cent.,   the rate of four per cent. being  applicable  where the  gross asset does not exceed Rs. 5,000, and the rate  of twelve  and  a half per cent being applicable if  the  gross asset exceeds Rs. 25,000. It is obvious  925 that the calculation of the cost of works of benefit to  the raiyats  at a fiat rate without any reference to the  actual expenses  that might have been incurred is a provision of  a confiscatory  character.   It artificially reduces  the  net income which is the basis of the assessment of compensation. The  last clause(g) of this section allows deduction of  any other  tax or legal imposition, payable in respect  of  such estate  or  tenure not expressly mentioned  in  the  earlier clauses. Section 24 provides the manner of determination  of the compensation payable to the proprietor or  tenureholder. It lays down a sliding scale for the assessment of compensa- tion.   Where  the net income does not exceed Rs.  500,  the compensation  payable  is twenty times the  net  income  and where  the net income computed exceeds Rs. 1,00,000,  it  is payable at three times the amount. The compensation in  such cases  is  merely nominal.  In the case of the  Maharaja  of

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Darbhanga, the estate acquired also comprised and  purchased by  him  by spending about a crore of rupees and  also  com- prised  mortgages,  to the tune of half a crore.  All  these vest in the Bihar State along with the inherited  zemindaris of  the  Maharaja  and  arrears of  rent  amounting  to  Rs. 30,00,000, while the total compensation payable is nearly  a sum of Rs. 9,00,000.  This section further provides that  to the  amount thus payable shall be added the amount of  fifty per  cent. of the arrears of rent referred to in clause  (b) of  section 4 along with the amount of compensation  Payable in respect of mines and minerals as determined under section 25.  The section also lays down the method of assessment  of compensation in the case of persons who have only a share in the  zamindari or have other minor interests in the  tenures or estates where the estate or tenure is held in trust etc., or  where they are of an impartible nature. In the  case  of mines and minerals the method of assessment is laid down  in section 25.  It has either to be fixed by agreement or by  a tribunal appointed for the purpose.  The subsequent sections provide  lot  the preparation of compensation roll  and  for hearing of appeals etc, Section 32 926 lays down the method and manner of payment of  compensation. Sub-section  (2) of this section enacts that the  amount  of compensation shall be paid in cash or in bonds or partly  in cash and partly in bonds. The bonds shall be either negotia- ble or non-negotiable and non-transferable and be payable in forty  equal  instalments to the person  named  therein  and shall  carry interest at two and a half per cent. per  annum with  effect  from  the date of issue.  Any  disputes  about compensation   between  the  proprietors or  tenure  holders have  to be determined by a tribunal appointed by the  State Government.   Section 34 provides for the constitution of  a commission  called  the Bihar Land  Commission.   The  other provisions  of the Act are of a miscellaneous character  and require  no special mention.  The  last section   authorizes the  State  Government to make rules for  carrying  out  the provisions of the Act.     From  this  survey of the Act it appears  that  the  law enacted  might  be taken to relate to several items  in  the legislative  lists.  ie., rights in or over  land  and  land tenures, forests, fisheries, mines and minerals, acquisition of  property and also principles on which  compensation  for property  acquired is to be determined.  The pith  and  sub- stance  of  the legislation however, in my opinion,  is  the transference of ownership of estates to the State Government and  falls within the ambit of legislative head entry 36  of List  II.   There  is no scheme of land  reform  within  the framework  of  the statute except that a pious hope  is  ex- pressed  that  the  commission may produce  one.  The  Bihar Legislature  was certainly competent to make the law on  the subject  of transference of estates and the  Act as  regards such transfers is constitutional.     The Act further deals with the realization of arrears of rents  due before the date of vesting of the estates to  the zemindars  and forfeits fifty per cent. of such  realization to  the  State  exchequer.  It also in  an  indirect  manner forfeits the State exchequer part of the compensation  money which would have been payable     927 to  the proprietors or tenureholders if the net  income  was not  reduced by deduction from the gross income of items  of artificial  nature  which  have no relation  to  any  actual expenses.   Both these provisions will be  separately  dealt with  hereinafter as, in my opinion, the enactment of  these

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provisions is unconstitutional     Having  held  that the Bihar Act  is  constitutional  as regards  transfer of estates to the State and that  this  is mainly an enactment under legislative head 36 of List II, it is  convenient now to examine the contention of Mr.  Das  to the  effect that in the contents of the power  conferred  on the  legislature  by this entry their exists  a  concomitant obligation  to pay compensation and that as  the  provisions regarding  payment of compensation are illusory, the Act  is unconstitutional and that article 31 (4) of the Constitution does not afford any protection against this attack.     For a proper appreciation and appraisal of the  proposi- tion  of Mr. P. R. Das that the obligation to pay  compensa- tion is implicit in the language of entry :36 of List II  of the Seventh Schedule and that the power to take compulsorily raises  by  implication  a right to payment,  the  power  to acquire being inseparable from the obligation to pay compen- sation, it is necessary to examine briefly the origin of the power of the State on the subject of compulsory  acquisition of  property. This power is a sovereign power of the  State. Power  to  take property for public use has  been  exercised since olden times.  Kent speaks of it as an inherent  sover- eign  power.  As an incident to this power of the  State  is the requirement that property shall not be taken for  public use  without  just compensation.  Mr. Broom in his  work  on Constitutional  Law  says, "Next in degree to the  right  of personal liberty is that of enjoying private property  with- out  undue interference or molestation, and the  requirement that property shall not be taken for public use without just compensation  is  but an affirmance of  the  great  doctrine established by the common law for the protection of  private property.  It is founded in natural equity and is 928 laid down as a principle of universal law."  In the words of Lord Atkinson in Central Control Board v. Cannon Brewery Co. Ltd.(1),  the  power to take compulsorily raises by implica- tion a right to payment.     On the continent the power of compulsory acquisition  is described  by the term "eminent domain". This term seems  to have  been originated in 1625 by Hugo Grotius. who wrote  of this power in his work "De Jure Belli et Pacis" as follows:     "The property of subjects is under the eminent domain of the  State, so that the State or he who acts for it may  use and even alienate and destroy such property, not only in the case  of  extreme necessity, in which even  private  persons have  a right over the property of others, but for  ends  of public utility, to which ends those who founded civil socie- ty  must  be  supposed to have intended  that  private  ends should  give way.  But it is to be added that when  this  is done  the State is bound to make good the loss to those  who lose their property."     The  relationship  between  the  individual’s  right  to compensation  and the sovereign’s power to condemn  is  dis- cussed  in Thayer’s Cases on Constitutional Law (Vol. I,  p. 953)  (mentioned on page 3 of Nichols on Eminent Domain)  in these words :--     "But  while  this obligation (to make  compensation)  is thus  well  established and clear, let  it  be  particularly noticed  upon what ground it stands, viz., upon the  natural rights  of the individual.  On the other hand, the right  of the  State to take springs from a different source, viz.,  a necessity of government. These two, therefore, have not  the same  origin; they do not come, for instance, from  any  im- plied  contract between the State and the  individual,  that the former shall have the property, if it will make  compen-

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sation;  the right is no mere right of pre-emption,  and  it has  no  condition  of compensation annexed  to  it,  either precedent or subsequent; but there is a right to take, (1) [1919] A.C. 744.    929 and  attached  to it as an incident, an obligation  to  make compensation;  this  latter, morally speaking,  follows  the other, indeed like a shadow but it is yet distinct from  it, and flows from another source."     Shorn of all its incidents, the simple definition of the power  to acquire compulsorily or of the term  "eminent  do- main"  is  the power of the sovereign to take  property  for public use without the owner’s consent.  The meaning of  the power  in its irreducible terms is. (a) power to  take,  (b) without  the owner’s consent, (c) for the public  use.   The concept  of the public use has been inextricably related  to an  appropriate  exercise  of the power  and  is  considered essential  in  any  statement of its  meaning.   Payment  of compensation,  though  not an essential  ingredient  of  the connotation  of  the term, is an essential  element  of  the valid exercise of such power.  Courts have defined  "eminent domain"  so  as to include this universal limitation  as  an essential constituent of its meaning. Authority is universal in support of the amplified  definition of "eminent  domain" as  the power of the sovereign to take property  for  public use  without the owner’s consent upon making just  compensa- tion.     It is clear, therefore, that the obligation for  payment of just compensation is a necessary incident of the power of compulsory  acquisition   of   property,    both  under  the doctrine  of  the English Common Law as well  as  under  the continental doctrine of eminent domain, subsequently adopted in America.  The question for consideration is  whether this  obliga- tion  to  pay compensation  for  compulsory  acquisition  of property  has been impliedly laid down by  the  constitution makers  in our Constitution under legislative head in  entry 36  of List II and entry 33 of List I, or whether  this  all important obligation which follows compulsory acquisition as a  shadow has been put in express and clear terms  somewhere else in the Constitution.  To my mind, our Constitution  has raised this obligation to pay compensation for the 120 930 compulsory acquisition of property to the status of a funda- mental  right and it has declared that a law that  does  not make provision for payment of compensation shall be void. It did  not leave the matter to be discovered and spelt out  by learned  arguments  at the Bar from out of the  contents  of entry 36; they explicitly provided for it in. article 31 (2) of the Constitution.  As the obligation to pay has been made a  compulsory part of a statute that purports  to  legislate under entry 33 of List I and entry 36 of List II, it is  not possible  to accede to the contention of Mr. P.R.  Das  that the  duty  to pay compensation is a thing  inherent  in  the language  of entry 36.  I agree with the  learned  Attorney- General that the concept of acquisition and that of  compen- sation  are  two different notions having  their  origin  in different sources.  One is founded on the sovereign power of the  State to take, the other is based on the natural  right of the person who is deprived of property to be  compensated for  his  loss. One is the power to take, the other  is  the condition for the exercise of that power. Power to take  was mentioned in entry 36, while the condition for the  exercise of  that power was embodied in article 31 (2) and there  was

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no  duty to pay compensation implicit in the content of  the entry itself.     Reference in this connection may be made to the  Govern- ment  of India Act, 1935.  By section 299 of that statute  a fetter was imposed on the power of legislation itself.   The Constitution,  however,  declared  laws  not  providing  for compensation as void and it not only placed a fetter on  the power  of  legislation but it  guaranteed  the  expropriated proprietor  a remedy in article 32 of the  Constitution  for enforcement of his fundamental right.  I am therefore of the opinion  that  Mr. Das is not right in his  contention  that unless  adequate  provision is made by a law  enacted  under legislative  power conferred by entry 36 of List I for  com- pensation,  the law is unconstitutional as entry  36  itself does not authorize the making of such a law without  provid- ing for compensation. Then   931 it  was  said that entry 36 of List II was  linked  up  with entry  42 of the Concurrent List by the words  "subject  to" occurring  therein and that the validity of any law made  in exercise of legislative power under entry 36 was conditional on the simultaneous exercise of the legislative power  under entry  42  and because there has been no valid  exercise  of this power (the provisions of the impugned Act regarding the determination of compensation being illusory), the  legisla- tion under entry 36 fails. In my opinion, this contention is unsound. The two entries referred to above are merely  heads of legislation and are neither interdependent nor complemen- tary  to  one another. It is by force of the  provisions  of article  31  (2)  that it becomes  obligatory  to  legislate providing for compensation under entry 42 of the  Concurrent List in order to give validity to a law enacted under  entry 36 and not by reason of the use of the wards "subject to" in the  wording of the entry.  No such words occur in entry  33 of  the  Union List.  It cannot reasonably  be  argued  that Parliament  could make a law for compulsory  acquisition  of property for its purposes with out fulfilling the  condition of making a law under entry42 of the Concurrent List, but  a State  Legislature in this respect is in a different  situa- tion.  Such a contention, in my opinion, is untenable.   The only  purpose of the words "subject  to" occurring in  entry 36  is to indicate that legislation under entry 36 would  be subject  to  any law made by Parliament in exercise  of  its legislative  power  under entry 42 of the  Concurrent  List. Both  legislatures  can  legislate under entry  42  but  the Parliamentary statute  made in exercise of powers under this entry  would  have preference over a State law  in  case  of repugnancy  and  it was for this reason that  reference  was made to entry 42 in the head of legislation mentioned in the State  List  under  entry  36.   In  other  words,  it  only means.that whenever a law is made by a State Legislature  in exercise  of its legislative power under entry 36, that  law will be subject to the provisions of a Parliamentary statute made in exercise of its legislative powers under entry 42 of the Concurrent List. 932     Lastly it was urged that the legislative power conferred in entry 42 of the Concurrent List is a power conferred  for the benefit of the expropriated owner and that the  legisla- ture is bound to exercise this power for his benefit whenev- er it takes property under its compulsory powers,. in  other words, it was said that the power conferred by the entry was coupled ,. with a duty to exercise it. Reference was made in this connection to the observations of Lord Cairns in Julius v.  Bishop of Oxford(1).  The principle of that decision  is

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that where power is conferred in the nature of a trust there is  an  obligation  to exercise it for the  benefit  of  the cestui que trust.  These observations do not have any  appo- site  application to the case of legislative   powers   con- ferred  by  a constitution.   The entries in the  lists  are merely  legislative heads and are of an enabling  character. Duty  to  exercise legislative power and  in.  a  particular manner  cannot be read into a mere head of  legislation.  If the argument of the learned counsel was sound, then it would be open to this Court to issue a mandamus to the legislature to exercise its power of legislation  under entry 42, if  it failed  to do so.  Mr. Das. when faced with  this  question, had  to  admit that he could not seriously  contend  that  a legislature  could be directed to enact a statute if it  did not  wish  to do so. Failure to make a law  under  entry  42 cannot  make a law made under entry 36 bad. In  my  opinion, the  decision in the case of Julius v. Bishop of Oxford  (1) has no relevancy to the matter before us. The  crucial point for determination in these appeals is  to discover the extent to which article 31 (4)of the  Constitu- tion  or  the new articles 31-A and a1-B have  deprived  the expropriated   proprietor of his rights or remedies  in  re- spect  of  this matter and of the guaranteed  right  to  get compensation  for property acquired.  Article 31 (4)  is  in these terms :-      "If  any Bill pending at the commencement of this  Con- stitution  in the legislature of a State has, after  it  has been passed by such Legislature, been (1) (1880) 5 App. Cas. 214.    933 reserved  for  the consideration of the  President  and  has received his assent, then, notwithstanding anything in  this Constitution, the law so assented to shall not be called  in question in any court on the ground that it contravenes  the provisions of clause (2)." Articles 31-A and 31-B are in these terms :--     "31-A.  (1)  Notwithstanding anything in  the  foregoing provisions of this Part, no law providing for the   acquisi- tion by the State of any estate or of any rights therein  or for  the extinguishment or modification of any  such  rights shall  be deemed to be void on the ground that it is  incon- sistent  with, or takes away or abridges any of  the  rights conferred by any provisions of this Part:     Provided that where such law is a law made by the Legis- lature of a State, the provisions of this Article shall  not apply thereto unless such law, having been reserved for  the consideration the President has received his assent. (2)  In  this article (a) the expression ’ estate’ shall in relation to any  local area  have the same meaning as that expression or its  local equivalent has in the existing law relating to land  tenures in  force  in that area, and shall also include  any  jagir, inam or musafi or other similar grant. (b) the expression ’rights’, in relation to an estate, shall include any rights vesting in a proprietor,  sub-proprietor, under  proprietor, tenure-holder  or other intermediary  and any rights or privileges in respect of land revenue.     31-B.  Without prejudice to the generality of the provi- sions contained in article 31-A, none of the Acts and  Regu- lations  specified  in  the Ninth Schedule nor  any  of  the provisions  thereof shall be deemed to be void, or  even  to have become void, on the ground that such Act, Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding  any judgment, decree or order of any  court

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or tribunal    934 to  the  contrary,  each of the said  Acts  and  Regulations shall, subject to the power of any competent legislature  to repeal or amend it, continue in force.     The  language  of article 31(4) is  unequivocal  in  its terms and states that when a Bill has received the assent of the  President  according  to the  procedure  prescribed  in article 31(3) and (4) then, notwithstanding anything in this Constitution, the law so assented to shall not be called  in question in any court on the ground that it contravenes  the provisions of clause (2).     In  order to determine the scope of this clause,  it  is necessary  to determine what are the specific provisions  of clause  (2) which clause (4) makes unjusticiable.  A  strict construction  has  to  be placed on  the  language  of  this clause, it being in the nature of a debarring provision.  In my  opinion, the provisions of sub-clause (2) made  unjusti- ciable  by clause (4), relate to the determination and  pay- ment of compensation.  The whole purpose of the clause is to make  the obligation to pay compensation a condition  prece- dent  to the compulsory acquisition of property.  The  words of  the  clause preceding the word "unless" are  merely  de- scriptive  of the law, the validity of which would be  ques- tionable if there was no provision for determination and for payment  of compensation for the property taken in its  con- tents.   The  use  of the word "such"  fully  supports  this interpretation.   The mandate of the clause is that  such  a law must contain a provision for payment of compensation  to the  expropriated  proprietor.   According  to  the   Oxford Dictionary,  (Vol.  8, p. 1526) the  expression   provision" when  used in statutes, has reference to what  is  expressly provided   therein.   What  article  31 (4)  really says  is that   the  contravention   of the   express  provisions  of article 31 (2) relating to payment of compensation will  not be  a  justiciable issue.  It has no reference  to  anything that may be implied within the language of that clause.  The existence  of a "public purpose" is undoubtedly  an  implied condition  of the exercise of compulsory powers of  acquisi- tion  by the State, but the language of article 31 (2)  does not   935 expressly  make it a condition precedent to acquisition.  It assumes  that  compulsory acquisition can be for  a  "public purpose"  only, which is thus inherent in such  acquisition. Hence article 31(4), in my opinion, does not bar the  juris- diction of the court from inquiring whether the law relating to  compulsory acquisition of property is not valid  because the acquisition is not being made for a public purpose. This is  also the view taken by the learned Judges of  the  Patna High Court. The sovereign power to acquire property  compul- sorily  is a power to acquire it only for a public  purpose. There  is  no  power in the  sovereign  to  acquire  private property  in  order to give  it to private  persons.  Public purpose is a content of the power itself. Reference in  this connection   may be made to Willoughby’s Constitutional  Law (page 795). Therein it is stated,     "As between individuals, no necessity, however great, no exigency,  however imminent, no improvement,  however  valu- able,  no  refusal,  however  unneighbourly,  no  obstinacy, however unreasonable, no offers     of compensation, however extravagant,  can compel or require any man to part with  an inch of his estate."   Public  purpose  is an essential ingredient  in  the  very definition  of the expression "eminent domain" as  given  by

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Nichols and other constitutional writers, even though  obli- gation  to pay compensation is not a content of the  defini- tion  but has been added to it by  judicial  interpretation. The exercise of the power to acquire compulsorily is  condi- tional  on the existence of a public purpose and that  being so this condition is not an express provision of article  31 (2)  but exists aliunde in the content of the  power  itself and that in fact is the assumption upon which this clause of the article proceeds.    The  result  of  this discussion is that  the  scope  of article 31(4) is limited to the express provisions of  arti- cle  31 (2) and courts cannot examine either the  extent  or the adequacy of the provisions of compensation contained  in any law dealing with the 936 acquisition of property compulsorily for public purpose  but the  barring provisions of article 31 (4) do not in any  way touch the powers of the court to see whether the acquisition has  been  made for public purpose. The provisions  of  this clause  also do not take away the court’s power  to  examine whether  the  legislature  that made the law  has  acted  in exercise  of  its law making power within the lists  or  has merely  made some other law though it has  ostensibly  exer- cised  its  powers under a certain  legislative  head  which cannot be used to support the legislation.     As  regards the new articles 31-A and 31-B, they  merely place  beyond the reach of the court any  enactment  dealing with  compulsory acquisition of property which may  infringe any  of the provisions of Part III of the  Constitution;  in other  words, article 13 (2) of the Constitution  cannot  be called in aid to impugn the validity of such statutes.     Having determined the scope of article 31 (4), it is now convenient to  examine  the extent of  the protection  given by article: 31 (4) to the impugned statute.     Mr.  Das  is to a great extent right in  his  contention --the  point  was not seriously challenged  by  the  learned Attorney-General.--that  the  law  under  challenge  in  the matter  of compensation is highly unjust or  inequitable  to certain persons and in certain matters, and compensation  in some  cases  is  purely illusory.  Be that as  it  may,  the Constitution  in  express terms prohibits an  enquiry  in  a court  of  law into those matters.   The  same  Constitutent Assembly  that provided the guarantees in article 31 (2)  in respect of payment of  compensation and provided the  remedy in article 32 for  enforcing the guaranteed right. took away that  remedy in the case of the Bihar and  other   zamindari estates  and substituted for it the procedure of article  31 (3)  and (4), compliance with which would be  sufficient  to make  the laws valid and effective.  However  repugnant  the impugned  law  may  be to our sense of justice,  it  is  not possible   937 for us to examine its contents on the question of quantum of compensation.  It is for the appropriate legislature to  see if  it  can revise some of its unjust provisions  which  are repugnant  to all notions of justice and are of an  illusory nature.   The  courts’ hands are tied by the  provisions  of article  31(4) and that which has been declared by the  Con- stitution  in clear terms not to be justiciable,  cannot  be made  justiciable in an indirect manner by holding that  the same  subjectmatter which is expressly barred  is  contained implicitly  in some other entry and therefore open  to  exa- mination.   None  of these provisions, however,  fetter  the power  of  the court to inquire into any other  matters  the cognizance  of  which  is not expressly taken  away  by  the

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provisions of clause (4) and articles 31-A and 31-B. Therefore,  the material point for determination is  whether the acquisition of the estates is for any-public purpose and if it be not so, the law can certainly be held to be  uncon- stitutional.  Mr. Das contended, and in my opinion  rightly, that jurisdiction to acquire private property by legislation can  only be exercised for a public purpose.  It may be  the purpose  of  the Union, or the purpose of the State  or  any other  public purpose.  Private property cannot be  acquired for  a private purpose. ’the right to legislate under  entry 36  postulates  the existence of a public  purpose  and  the contention  is that there was no public purpose  behind  the Act.   The learned Judges of the  High Court negatived  this contention on the ground that the question whether there was a  public purpose in support of the acquisition of  the  es- tates  had  been by implication decided by  the  Constituent Assembly  and  therefore the Court could not  go  into  this matter.  Shearer J. said as follows ;-- "We are in my opinion, estopped from saying that the  acqui- sition of estates and tenures is not an acquisition for such a  purpose. That it is, has been decided by the  Constituent Assembly itself." 121 938     This  decision was reached in view of the provisions  of clauses (4) and (6) of article 31 which were interpreted  to mean  that the Constituent Assembly gave their  express  ap- proval  to this legislation.  Reuben J. observed as  follows :--     "From  article  31,  clause (2), it is  clear  that  the Constituent  Assembly considered two requirements as  essen- tial for compulsory acquisition, namely a public purpose and provision  for  compensation.   The  protection  which   the Constituent   Assembly  gave under clauses  (4)and  (6)  was confined  to the latter requirement.  Evidently,  therefore, the  Constituent  Assembly thought that protection  was  not required under the other head, that is to say, the Constitu- ent Assembly regarded the nationalization of land as  itself constituting a public purpose.     I would, therefore, hold that there is a public  purpose for  the  impugned Act within the meaning of clause  (2)  of article 31." Das J. said as follows :--     "There is, I think, clear indication in the Constitution of  India itself that the expression ’public purpose’ is  to be  understood in a wide and comprehensive  sense.  Further- more,  there is indication  that  the Constituent  Assembly, representing  the people of India which made  the  Constitu- tion,  was itself aware of the existence of  legislation  of the nature of impugned Act. This is clear from clause (4) of article  31. As a matter of fact, the Land Reforms Bill  was pending at the commencement of the ’Constitution   ......... If  the legislation then pending was not for a  public  pur- pose, it was, indeed, surprising that the Constituent Assem- bly  tried to save such legislation by means of  the  provi- sions  of clause (4) of article 31.  One may, I  think,  say that  there  was an implied declaration by  the  Constituent Assembly that such legislation was for a public purpose  and such declaration will be given deference by the courts until it is shown to involve an impossibility. 939     For the reasons  given above,  I hold that the  impugned Act does not fail for want of a public purpose  "     Learned  counsel challenged this view of the High  Court and  contended that article 31(4) of the Constitution is  no

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answer  on  this point and that the Act was bad  as  it  was silent  on the question as to why the zamindaris were  being acquired;  that  it only provided for  the  interception  of rents which instead of being realized by the zamindars would go  into the coffers of the Government without  any  benefit being  derived by the tenants; that private  property  could not  be acquired for merely augmenting the revenues  of  the State; and that the only purpose that could be gathered from this  Act  was  the ruination of a large  class  of  persons without  any  corresponding benefit to any section   of  the community.  It is said that there are 13,35,000  land-owners and  tenure-holders  in Bihar and if an  average  family  be taken  to consist of four persons, five and a  half  million people  will be ruined by this legislation, while the  ryots will not benefit in any manner because all the lands except- ing  the  waste lands sought to be transferred  are  in  the possession  and cultivation of the ryots and no part of  the rent realisable from them is being commuted for their  bene- fit.  It is pointed out that the waste lands were sufficient to meet the requirements of villagers for grazing cattle and for  pasture and that in effect the acquisition of  the  es- tates was for the purpose of creating one machine-ridden and red-tapist super-landlord by depriving a substantial portion of the public of their means of livelihood.     The  learned counsel proceeded to say that  nationaliza- tion  of  land may be the policy of the party in  power  but this  is not a public purpose which involves benefit to  the community.   Reference  in this connection was made  to  the decision in Harnabai Pramjee Petit v. Secretary of State for India(1),  where  it was observed that  the  phrase  "public purpose" whatever it may (1)(1915) 42 I.A. 44. 940 mean, must include a purpose, that is, an object or aim,  in which  the general interest of the community as  opposed  to the  particular  interest  of individuals  is  directly  and vitally concerned.  The impugned Act, it was contended,  did not fall within this definition of "public purpose".  Refer- ence  was  also made to Vol. II of  Cooley’s  Constitutional Limitations, at page 744, wherein it is said as follows:--     "The purpose must be public, and must have reference  to the  needs  or convenience of the public, and no  reason  of general  public policy will be sufficient to validate  other transfers when they concern existing vested rights."     Finally, it was urged that there was nothing definite or tangible  in  the Act or in the views  of  the  legislatures which  gave any indication of the public purpose  for  which the estates were being acquired and all that could be  gath- ered  was that the legislature did not know its own mind  at all and on a vague notion of some future policy directed the acquisition of the estates.     In  my opinion, it will not serve any useful purpose  to examine each and every argument that was addressed to us  by the  learned counsel.  There can be no manner of doubt  that acquisition of private property by legislation under entries 33,  36 and 42 can only be made either for purposes  of  the Union  or for purposes of the State or for a public  purpose and that it is unnecessary to state in express terms in  the statute  itself  the precise purpose for which  property  is being taken, provided from the whole tenor and intendment of the  Act  it could be gathered that the property  was  being acquired either for purposes of the State or for purposes of the public and that the intention was to benefit the  commu- nity  at large. It may be conceded that the present  statute does not disclose the legislature’s mind as to what it would

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ultimately  do  after the estates are vested in  the   State Government. Perhaps the State Government has not yet made up its mind how and for what purposes the lands and the tenures acquired will be utilized.  The statute   941 provides  in  section  34 for the establishment  of  a  land commission  whose function it will be to advise the  Govern- ment as to its agrarian policy.  Be that as it may, it seems to  me that in spite of the criticism levelled  against  the Act  by the learned counsel, it cannot be said that the  Act would  fall because it fails to postulate a public  purpose. The Act is intituled "The Bihar Land Reforms Act, 1950". The preamble  of the Constitution says that India has been  con- stituted into a Sovereign Democratic Republic  to secure  to all  its citizens justice, social, economic  and  political. Article  39  of  the Directive Principles  of  State  Policy states as follows :-     "The  State  shall,  in particular,  direct  its  policy towards  securing  that  the ownership and  control  of  the material  resources of the community are so  distributed  as best to subserve the common good; and that the operation  of the economic system does not result in the concentration  of wealth and means of production to the common detriment."     Now  it is obvious that concentration of big  blocks  of land  in the hands of a few individuals is contrary  to  the principle on which the Constitution of India is based.   The purpose of the acquisition contemplated by the impugned  Act therefore is to do away with the concentration of big blocks of land and means of production in the hands of a few  indi- viduals  and to so distribute the ownership and  control  of the material resources which come in the hands of the  State as  to  subserve the common good as best  as  possible.   In other  words, shortly put, the purpose behind the Act is  to bring  about  a reform in the land  distribution  system  of Bihar  for the general benefit of the community as  advised. The  legislature is the best judge of what is good  for  the community, by whose suffrage it comes into existence and  it is  not  possible for this Court to say that  there  was  no public  purpose behind the acquisition contemplated  by  the impugned statute. The purpose of the statute certainly is in accordance with the letter and spirit of the Constitution of India.  It is fallacious to contend that the object  of  the Act is 942 to ruin five and a half million people in Bihar.  All  lands in  khas possession of all these persons have not been  made the subject-matter of acquisition.  Their homesteads,  their mineral  wealth except mines not in operation have not  been seriously  touched  by the provisions of the  Act.   Various other exemptions have also been made in their favour in  the Act,  apart from the provisions as to compensation which  in the  case of small zamindaris can by no means be said to  be of  an  illusory character. It is difficult to hold  in  the present  day conditions of the world that  measures  adopted for  the welfare of the community and sought to be  achieved by process of legislation so far as the carrying out of  the policy  of nationalization of land is concerned can fall  on the  ground of want of public purpose.  The  phrase  "public purpose" has to be construed according to the spirit of  the times  in  which particular legislation is  enacted  and  so construed, the acquisition of the estates has to be held  to have been made for a public purpose     These observations, however, have no application to  the acquisition of arrears of rent.  On the face of  the   stat- ute,  acquisition of fifty per cent. of these  arrears   was

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for the private purpose of the zemindars and the other fifty per  cent. was either for supplementing the revenues of  the State or for securing  means  for payment of compensation to the  zemindars.  The purpose is to discharge the  obligation of  the  acquirer to pay the price.  The  same  observations apply  to clause 23 (f) of the statute. That  provision  has been made for the purpose of negativing partially the provi- sions  of the Act regarding payment of compensation.  Clause (4)of article 31 affords no protection against the invalidi- ty of these clauses.      The learned Attorney-General contended that the  acqui- sition of arrears was an acquisition of choses in action and that the compensation paid for it was fifty per cent. of the amount  of  arrears.  I regret I am unable  to  accept  this suggestion. It is a well accepted   943 proposition  of law that property of individuals  cannot  be appropriated  by  the State -under the power  of  compulsory acquisition  for the mere purpose of adding to the  revenues of  the State.  "The principle of compulsory acquisition  of property," says Cooley (in Vol. II at p. 113, Constitutional Limitations) "is founded on the superior claims of the whole community over an individual citizen but is applicable  only in  those cases where private property is wanted for  public use, or demanded by the public welfare and that no  instance is known in which it has been taken for the mere purpose  of raising  a revenue by sale or otherwise and the exercise  of such a power is utterly destructive  of  individual   right. Taking  money  under the right of eminent domain,  when  ’it must be compensated  in  money afterwards is nothing more or less than a forced loan. Money or that which in ordinary use passes  as such and which the Government may reach by  taxa- tion, and also rights in action which can only be  available when  made  to  produce money, cannot be  taken  under  this power.     Willis  in his Constitutional Law, at page  816,  offers the same  opinion.  Nichols  on "Eminent Domain" (Vol. 1, at page 97) has expressed a contrary opinion and reference  has been made to the decision in Cincinnati v. Louisville  etc., R.  Co. C).  An examination of this case, however, does  not disclose  that any such proposition was stated therein.   It was  held in that case that a Bill to restrain the  enforce- ment of a State statute regulating fire insurance rights was a valid law in the State of Kansas.  It was not necessary to decide in this case whether under the compulsory acquisition power the State has the power to acquire choses in action or money,  but  it cannot be seriously disputed  that  such  an acquisition  amounts to a forced loan and that  the  desired result  can be more appositely obtained in exercise  of  the police  power  of  the State than of the  power  of  eminent domain  or compulsory acquisition of property and that  com- pensation in such a ease is the same amount of money (1)223 U.S. 390. 944 that is being taken and in the case of a chose in action the amount of money that it would produce.  In this situation it cannot  be  held  that fifty per cent.  of  the  outstanding arrears was compensation in any sense of that expression for this acquisition.  The true position is that the State  took over  all the arrears and decided to refund fifty per  cent. of them and forfeit the rest. The validity of this  acquisi- tion has to be decided independently of the acquisition   of the estates.  It has no connection with land reform or  with any public purpose.  It stands on the same footing as  other debts  due to zamindars or their other movable properties,

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which  it was not the object of the Act to acquire.  As  al- ready  stated, the only purpose to support this  acquisition is  to  raise  revenue to pay compensation to  some  of  the zamindars whose estates are being taken.  This purpose  does not fall within any definition, however wide, of the  phrase "public  purpose"  and the law therefore to this  extent  is unconstitutional.     One or two illustrations of the public purpose  involved in  this  provision will bring out its  true  character.  In Appeal  No.  299 of 1951, the arrears of Darbhanga  Raj   on 26th  September,  1950, was a sum of Rs. 30,81,967.  Half of this amount is payable to the Raj and the other half  stands forfeited.  In the case or Raja P.C. LaI (Appeal No. 330  of 1951),  the rents due were Rs. 10,26,103, and in Appeal  No. 339 of 1951, the amount is Rs. 9,52,937.     Next  it was contended that the impugned Act is a  fraud on  the Constitution and therefore void.  It was  said  that the  Act, while pretending to comply with the  Constitution, evades  and  invades  it; that the Act  merely  pretends  to comply  with the Constitution when it says that it  provides for payment of compensation but in effect it has produced  a scheme for non-payment of compensation by shift and  contri- vance.  Reference was made to certain provisions of the  Act of a confiscatory nature, already noticed in this  judgment. Section  9 was mentioned under which mines in the course  of development and fetching no income yet   945 vest  in the State without payment Of compensation. No  com- pensation  has  been made payable in respect of  forests  or trees  which  were not fetching any income at  the  date  of vesting. In a nutshell, it was contended that the object  of the  Act was to acquire properties of the zemindars by  pay- ment of compensation (so-called) out of the moneys belonging to the zemindars themselves and that in some cases they  had not only to give up their estates for nothing but would have to pay something, in addition, to the State, if the  princi- ples specified in the Act were to  apply. It was pointed out in the case of the Maharaja of Darbhanga that his  zemindari would  be  acquired by the State Government  without  paying anything but that the Maharaja would have to pay out of  his own  money six lakhs to the Government.  In Case No. 330  of 1951 (Raja P.C. Lall), it was said that Government would get the  zemindari  free, while in Case iNTo. 339  of  1951  the State  will get the zemindari and two and half lakhs out  of the  arrears, while in Case No. 331 of 1951,  (Chota  Nagpur appeal) the zemindari will be acquired on payment of a small sum  of  Rs. 14,000 only.  Nothing will be  payable  to  the zamindars  out of the public exchequer. Attention was  drawn to  the observations of Shearer J. in the following  passage :-     "The legislature, it is clear, are optimistic enough  to hope  that this reform may conceivably be  effected  without raising  any  great loan.  The conclusion, to  my  mind,  is irresistible  that the intention is to take over  the  great estates in the province, paying no compensation or the  most inadequate compensation, and out of the considerable profits which  are likely to be derived from them, to take over,  in course of time, the remaining estates and tenures.  In other words,  a  comparatively small minority  belonging  to  this particular class are to be expropriated without compensation or with the most inadequate compensation in order that, when the great majority are expropriated, they receive  compensa- tion which will not be  inadequate and may, quite  possibly, in many cases, be more then adequate" 122

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946     Mr.  Das  vehemently contended that the  statute  was  a fraud  on republican Constitution which promised to  deprive no one of his property without payment of  compensation;that it pretended to make elaborate provisions for paying it  but that  by shift and contrivance it has provided for the  eva- sion  of  its payment.  Reference was made to a  passage  in Moran  Proprietary Ltd. v. Dy. Commissioner of Taxation  for New South Wales (1), which is in these terms :-     "Cases may be imagined in which a purported exercise  of the  power  to grant financial assistance under  section  96 would be merely colourable.  Under the guise or pretence  of assisting a State with money, the real substance and purpose of  the  Act might simply be to  effect  discrimination   in regard  to taxation.  Such an Act might well be ultra  vires the  Commonwealth Parliament.  Their  Lordships   are  using the language of caution because such a case may never arise, and also because it is their usual practice in a case  deal- ing with constitutional matters to decide no more than their duty  requires.  They will add only that, in the  view  they take    of   the   matter,   some   of    the    legislative expedients--objected  to as ultra vires by Evatt J.  in  his forcible  dissenting  judgment may well be  colourable,  and such   acts  are  not  receiving  the  approval   of   their Lordships."     It  was urged that a statute could be declared to  be  a fraud  on the Constitution on the same principles ,that  are applicable to cases of corporations or of executive  bodies, whenever  they act in excess or in abuse of their  statutory powers.   Reliance  was  placed in this  connection  on  the observations of Abbott C.J. in Fox v. Bishop of Chester (2), which are in these terms :--     "Our judgment is founded upon the language of the  Stat- ute 31 Eliz. c. 6, and the well-known principle of law, that the  provisions of an Act of Parliament shall not be  evaded by shift or contrivance," (1) [1940] A.C. 838, at p. 858. (2)107 E.R. 520 at p. 527. 947     In  Fox v. Bishop of Chester(1), it was said that  there may  be fraud on the law, an insult roan Act of  Parliament, though in the language and text of the law no such fraud may have been mentioned. In Westminsyter Corporation v. London & North Western Railway(2), it was observed: -     "It  is  well settled that a public body  invested  with statutory  powers such as those conferred upon the  corpora- tion  must take care not to exceed or abuse its  powers.  It must  keep within the limits of the authority  committed  to it. It must act in good faith.  And it must act  reasonably. The  last proposition is involved in the second, if  not  in the first."     In Maharaja Luchmeswar Singh v. Chairman of the Darbhan- ga  Municipality (3), it was pointed out that the offer  and acceptance of one rupee was a colourable attempt to obtain a title under the Land Acquisition Act without paying for  the land.  In Alexander v. Brame(4), it was observed that if  it had appeared that sufficient ground existed for holding that the  deed in question was a device on the part of Mr.  Brame for  the  purpose  of evading and eluding  the  statute,  by keeping seemingly and colourably clear of 1t, while  meaning substantially  to infringe it, a view might have been  taken favourable to the appellants.     All these principles are well-settled.  But the question is  whether they have any application to the  present  case. It  is by no means easy to impute a dishonest motive to  the

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legislature of a State and hold that it acted main fide  and maliciously in passing the Bihar Land Reforms Act or that it perpetrated  a  fraud on the Constitution by  enacting  this law.  It may be that some of the provisions of the  Act  may operate harshly on certain persons or a few of the zamindars and  may  be bad if they are in excess  of  the  legislative power  of the Bihar Legislature but from  that  circumstance it-does  not follow that the-whole enactment is a  fraud  on the  Constitution.   From the premises that the  estates  of half a dozen zemindars may be expropriated   (1)6 E.R. 581                         (3) 17 I.A. 90.   (2) [1905] A.C. 426 at p. 430.        (4) 44 E.R. 205. 948 without  payment  of compensation, one cannot  jump  to  the conclusion that the whole of the enactment is a fraud on the Constitution  or  that all the provisions aS to  payment  of compensation  are illusory.  At best they are illusory  only in  the case of some only of the large body of  persons  af- fected by it. Section  23  (f), however, in my opinion,  is  a  colourable piece  of legislation. It has been enacted under power  con- ferred  by legislative entry 42 of List III.It is  well-set- tled that Parliament with limited powers cannot do indirect- ly what it cannot do directly. (Vide South Australia v.  The Commonwealth(1)  and Madden v. Nelson & Port  Sheppard  R.W. Co.(2).    In  Deputy Federal Commissioner of  Taxation  (N. S.W.) v.W.R. Moran  Proprietary  Ltd. (3),  it, was observed as follows :--  "Where  the law-making authority is of a limited or  quali- fied  character,  obviously it may be necessary  to  examine with  some strictness the substance of the  legislation  lot the  purpose of determining what it is that the  legislature is really doing.  In such cases the court is not to be  over persuaded    by   the   appearance   of    the    challenged legislation   ......  In that case, this court  applied  the well  known  principle that in  relation  to  constitutional prohibitions  binding a legislature,that legislature  cannot disobey  the  prohibition merely by  employing  an  indirect method of achieving exactly the same result  .........   The same  issue may be whether legislation which at first  sight appears to conform to constitutional requirements is colour- able or disguised. In such cases the court may have to  look behind names, forms and appearances to determine whether  or not the legislation is colourable or disguised."     The  provision herein impeached has not been arrived  at by laying down any principles of paying compensation but  in truth,  is designed to deprive a number of people  of  their property without payment of compensation.  The State  legis- lature  is  authorised to pass an Act in  the  interests  of persons deprived of   (1) 65 C.L.R. 373.        (3) 61 C.L.R. 735 at p. 793.   (2) [1899] A.C. 626.  949 property  under entry 42. They could not be permitted  under that  power to pass a law that operates to the detriment  of those  persons and the object of which provision is  to  de- prive them of the right of compensation to a certain extent.     In  this connection it is now convenient to examine  the contention of the learned Attorney-General as to the  inter- pretation  of  legislative head entry 42 of  List  III.   He contended that under this head it was open to the Parliament or  the  State  Legislature to make a law  laying  down  the principles  which may result in non-payment of  compensation or which may result in not paying any compensation whatsoev- er.   I cannot possibly assent to any such  construction  of

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this entry The entry reads thus :--     "Principles on which compensation for property  acquired or requisitioned for purposes of the Union or of a State  or for  any other public purpose is to be determined,  and  the form and manner in which-such compensation is to be given."     This  head of legislation seems to have  been  expressly mentioned  in  the Concurrent List not only in view  of  the accepted principle of law that in cases of compulsory acqui- sition of property compensation has to be made, but also  in view of the clear and mandatory provisions of article  31(2) which require that a law authorising the taking or  acquisi- tion  of  property will be void if it does not  provide  for payment  of compensation for the property acquired  or  does not  either  fix the amount of compensation or  specify  the principles on which and the manner in which the compensation is to be determined and given.  The power of legislation  in entry 42 is for enacting the principles of determining  such compensation and for paying it.  The principles to be enact- ed are for determining such compensation and for paying  it. The principles to be enacted are for determining the equiva- lent  price of the property taken away.  It may be that  the determination of the equivalent may be ’left for  ascertain- ment on the basis of certain uniform rules; 950 for  instance, it may be laid down that the  principles  lot determining  compensation  will be the rental basis  or  the market  value  of the property etc. But it is  difficult  to imagine  that there can be any principles for nonpayment  of compensation or for negativing the payment of  compensation. No  principles are required to be stated for non-payment  of compensation.  A simple statement that no compensation  will be  paid is quite enough to attain the object. I know of  no principles for determination of compensation which result in its nonpayment except in the Act under notice.  All legisla- tive  heads  have to be reasonably construed and  the  power given  under  entry 42 is a positive power  given  to  bring about  the  result of payment of compensation and  not  non- payment of the same. The key words in the entry are "compen- sation" and "given".  Anything that is unrelated to  compen- sation  or the giving of it cannot be justified by  legisla- tion  under entry 42. Reference was made in this  connection to  the United Provinces v. Atiqa Begum (1) in which it  was held that the descriptive words under the legislative,head ’ ’collection of rents" are wide enough to permit  legislation in respect of remission of rents and that under item 22.  of the  Government  of India Act, 1935,  the  legislative  head "forests"  include the power to legislate with  respect  not only to afforestation but also to disafforestation and  that the legislative head "fisheries" would include the power  to legislate on the prohibition of fishing altogether.  In   my opinion,  these  analogies have no application to  the  con- struction  of the language employed in entry 42.  These  en- tries  are not in pari materia to entry 42. Perhaps  a  more analogous case on the point is the decision in  AttorneyGen- eral  for Ontario v. Attorney-General for the  Dominion  (2) The question there was whether the legislative head "Regula- tion of Trade and Commerce" included the power to abolish it also.   Their  Lordships  of the  Privy  Council  made   the following  observations  which appear at  page  363  of  the report :-- (1) [1940] F.C.R. 110 at p. 135.      (2) [1896] A.C. 348. 951     "A  power  to regulate assumes the conservation  of  the thing  which  is to be made the subject of  regulation.   In that view, their Lordships are unable to regard the prohibi-

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tive  enactments of the Canadian statute as  regulations  of trade  and commerce  ....  there is marked  distinction  be- tween  the  prohibition  or prevention of a  trade  and  the regulation or governance of it."     An entry concerning payment of compensation in no  sense includes  legislative power of non-payment of  compensation. The whole purpose of this head of legislation is to  provide payment of compensation and not the confiscation of  proper- ty.     The  provision that four per cent. to twelve and a  half per  cent. has to be deducted out of the net income  on  ac- count of costs of works for the benefit of raiyats etc.  has no  relation to real facts.  Even the earlier  provision  in clause  (d) that costs of management have to be deducted  up to twenty per cent. has in its entirety no real relation  to actual  state  of affairs.  As already pointed  out,  it  is partially  of a confiscatory character in sufficient  number of  cases.   The deduction under clause (f) from  the  gross income is merely a deduction of an artificial character, the whole object being to inflate the deductions and thus  bring about  non-payment of compensation.   Such  legislation,  in my  opinion, is not permitted by entry 42 of List III.  Sup- pose, for instance, instead of a twelve and a half per cent. it declared that a deduction of seventy per cent. be made on that  account.   Could it be said by any  reasonable  person that such a piece of legislation was legislation on  princi- ples  of  determining compensation or of making  payment  of compensation,  This provision, therefore, in my opinion  has been inserted in the Act as a colourable exercise of  legis- lative power under entry 42 and is unconstitutional on  that ground.  The  power has not been exercised under  any  other legislative  head authorizing the State legislature to  pass such  a law.  Legislation ostensibly under one or  other  of the  powers conferred by the Constitution but in  truth  and fact not falling within the content of that 952 power is merely colourably constitutional but is really  not so.  (Vide Quebec v. Queen Insurance Co. (D; Russell v.  The Queen(2).]  Reference in this connection may also be made to the decision of the Privy Council in Madden v. Nelson & Fort Sheppard R.W. Co. (3). This clause therefore is  unconstitu- tional  legislation made colourably valid under exercise  of legislative power under entry 42 of List II.     It  was contended by Mr. Das that if some provisions  in the  Act  are ultra vires, the statute as a  whole  must  be pronounced  to be ultra vires and that it could not be  pre- sumed  that the legislature intended to pass it in what  may prove  to be a truncated form.  The real question to  decide in all such cases is whether what remains is so inextricably bound  up with the part declared invalid that  what  remains cannot  independently survive, or, as it has sometimes  been put, whether on a fair review of the whole matter it can  be assumed that the legislature would have enacted at all  that which  survives  without  enacting the part  that  is  ultra vires.   Looking at the Act as a whole, it seems to me  that the offending provisions of the Act are not so  inextricably bound  up with the part that is valid as to hit or kill  the remainder  also. In this case a presumption cannot be  drawn that the legislature would not have enacted the Act  leaving out the two or three provisions which have to be declared to be invalid.     Mr.  Das also raised a minor point that the  Bihar.  Act was  unenforceable.  Reference was made to section 32(2)  of the Act which runs as follows :--     "The  amount  of compensation so payable in terms  of  a

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compensation  Assessment-roll as finally published shall  be paid  in  cash or in bonds or partly in cash and  partly  in bonds. The bonds shall be either negotiable or  non-negotia- ble  and non-transferable and be payable in forty equal  in- stalments to the person named therein and shall carry inter- est at two and a half per centum per annum with effect  from the date of issue,"  (1) (1878) 3 App. Cas. 1090.           (3) [1899] A.C. 626,  (1) 7 (1882) App. Can. 841.     953     It was contended that as no date has been mentioned  for payment  of  compensation and no interval  has  been  stated between  the  instalments mentioned therein and it  has  not been  mentioned  how much would be payable in cash  and  how much in bonds, the Act could not be enforced.  Section 43 of the  Act  empowers the State Government to  make  rules  for carrying  out  the purposes of the Act.  Clause  (p)  is  in these terms :--     "The  proportion in which compensation shall be  payable in  cash  and  in bonds and the manner of  payment  of  such compensation under sub-sections (2) and (3) of section 32."     It  seems clear that the Act has made sufficient  provi- sion  for enforcing its provisions if section 32(2) is  read with the provisions contained in section 43 and it cannot be said that the Act is unenforceable for this reason.  The  last point urged by M. Das was that section 32 (2)  of the  Act  was void as in it legislative functions  had  been abdicated  by the legislature in favour of the executive.  A two-fold attack was levelled against this provision.  First- ly, it was said that the Constitution having in entry 42  of List  III  of the Seventh Schedule vested authority  in  the legislature  to make laws on the question of the  principles as to the payment of compensation and the manner and form of its payment, in other words, it having trusted these matters to the care, judgment and wisdom of the legislature, it  had no power to delegate these matters to the executive. Second- ly, it was contended that section 32 (2) delegated essential legislative power to the executive which it was  incompetent to  do.  Reference was made to the opinion of this Court  in Special Reference No. 1 of 1950.     The matters alleged to have been delegated are these :--     1.  The  determination  of the proportion  of  the  cash payment  to the payment by giving bonds, negotiable or  non- negotiable. 123 954     2.  The  determination of the period  of  redemption  of these bonds.      3.  The period of interval between the several  instal- ments.      The section enacts that the compensation payable  shall be paid in cash or in bonds or partly in cash and partly  in bonds.  It therefore determines the principle that the  pay- ment of compensation will be in these two forms.  It further enacts that bonds shall be either negotiable or non-negotia- ble  and non-transferable. It therefore also determines  the nature of the bonds that would be issued.  It further enacts that  the payment, if made in bonds, will be paid  in  forty equal instalments.  It is obvious that the time of   redemp- tion  of the bonds will be co-terminous with the  period  of the instalments. It has further enacted that the bonds  will carry interest at the rate of two and a half per cent.  What has been left to the executive is the question of the deter- mination  of the proportion in which compensation is  to  be paid in cash or in bonds and the fixation of the interval of

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the instalments. It seems to me that the delegation to  this extent is permissible in view of the decision of this  Court in  The State of Bombay v. Narottamdas Jethabai (1) and  the decision of their Lordships of the Privy Council in Queen v. Burah (2).  The legislature applied its mind to the question of  the  method and manner of payment of  compensation.   It settled  its policy and the broad principles.  It  gave  the State  Government the power to determine matters  of  detail after having settled vital matters of policy.  It cannot  be said  that  the legislature did not apply its  mind  to  the subjectmatter  of  the legislation and did not  lay  down  a policy. The proportion in which compensation was payable  in cash  or in bonds or whether the whole of it was to be  paid in  cash is a matter which only the State  Government  could fix  and  similarly,  the interval of  instalments  and  the period  of redeemability of the bonds were also  matters  of detail which the executive could (1) [1951] S.C.R. 51.            (2) (1877) 5 I.A. 178,     955 more  appositely  determine in exercise of  its  rule-making power.   It cannot be said in this case that  any  essential legislative  power  has been delegated to the  executive  or that  the legislature did not discharge the trust which  the Constitution had reposed in it.  If the rule-making authori- ty abuses its power or makes any attempt to make the payment illusory, the expropriated proprietor will not be without  a remedy.     For  the reasons given above, I am of the  opinion  that section  32(2) of the Act cannot be held bad on  the  ground that it is a piece of unregulated delegation of  legislative power.     Mr. Das’s contention in Cases Nos. 319, 327, 330 and 332 of 1951 and in the other cases in which he appeared were the same.     Mr.  Choudhury  appearing in Cases Nos. 309 and  328  of 1951  raised  a large number of points, some  of  which  are covered  by  the  arguments of Mr. P.R. Das,  which  I  have discussed  already. The rest seem to me to be  unsubstantial but it is necessary to notice a few of them upon which great stress  was  laid  by the learned  counsel.   Mr.  Choudhury contended  that the field of legislation on the question  of principles of determination of compensation and the mode and manner of payment of such compensation was already  occupied by  the  Land Acquisition Act which was an existing  law  of Parliament  and, therefore, the State Legislature could  not enter  on  this  field and legislate on  the  principles  of payment of compensation.  This argument really has no force, because  the  provisions as to  assessment  of  compensation enacted  in the Land Acquisition Act only apply to  acquisi- tions  that  are made by notification under  that  Act.  Its provisions  have no application to acquisitions  made  under either  local or central laws unless they  are  specifically made applicable by the provisions of these statutes.     Another point put forward by him, that articles 31-A and 31-B  of  the  Constitution  cannot   affect  pending  cases cannot be seriously entertained because retrospectivity   is writ large on the face of those 956 articles.   Similarly, I cannot but regard as  unsubstantial his  contention  that  transference  of estates of zamindars to  the  State under the provisions of  a  statute  requires registration.  The only other point seriously pressed by him is  that the Bihar Legislature had no power to  issue  bonds without  complying with the procedure laid down  in  article 293 of the Constitution.  It is enough to state with  regard

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to  this  point  that the stage for issuing  bonds  has  not arrived  as  yet.  When the State legislature  issues  bonds which  are  unenforceable or which it is  not  competent  to issue, the contention can possibly be raised.     Mr. Chakravarty who appeared in three  cases, Nos.  326, 337,  and 344 of 1951, urged that as regards  trust  proper- ties,  the  Bihar legislature had no power to  acquire  them without payment of full compensation as certain  educational and  charitable  institutions  would  thereby  be  seriously affected. He was, however, unable to point out how the Bihar Legislature had no power to acquire trust properties.     Mr. Raghav Saran who appeared in Cases Nos. 310, 311 and 329of  1951,  raised a novel point that the  Act  not  being reasonable and just,  the  Supreme Court had jurisdiction to declare  it void on that ground.  He was unable  to  support his argument on any reasonable basis.  The constitutionality of  a  statute passed by a competent legislature  cannot  be challenged on the ground that the law made is not reasonable or just.     Counsel  who appeared in Cases Nos. 807, 313, 815,  320, 321, 822 and-331 and Petition No, 612 of 1951 merely adopted the points urged by Mr. P.R. Das.     The  result  is that the provisions of  the  Bihar  Land Reforms Act contained in sections 4 (b) and 23 (f) are  held not  constitutional.  The rest of the Act is good.  The  ap- peals  are therefore allowed except to the extent  indicated above. A writ of mandamus will issue to the State Government not to give effect to the two provisions mentioned above and held unconstitutional. 957 Petition No. 612 of 1951 under article 32 is dismissed as it is  not  maintainable; no infringement  of  any  fundamental right has been alleged therein.  There was no appearance for the respondents in Cases Nos. 18 of 1950 and 299 of 1951 and no opposition to the appeals being allowed. They are accord- ingly  allowed. I will make no order as to costs in  any  of these appeals and petition.     MUKHERJEA  J.--I  had the advantage of  going  carefully through the judgment of my learned brother Mahajan J. and  I concur entirely in the conclusions arrived at by him.  In my opinion, the Bihar Land Reforms Act of 1950 is not unconsti- tutional, with the exception of the provisions contained  in section  4  (b) and 23(f) of the Act  and  these  provisions alone must be held to be void and inoperative.     As regards section 23(f) of the Bihar Land Reforms  Act, my learned brother has based his decision on the ground that the  provision  of this clause constitutes a  fraud  on  the Constitution, and although in enacting the  provision,   the legislature  purported to exercise its powers  under   entry 42  of the Legislative List III in Schedule VII of the  Con- stitution,.  in reality it is a clourable exercise  of  that power  under  which  a  thing  has  been done which  is  not contemplated  by  that entry at all  and  lies  outside  its ambit.  I  agree with the line of reasoning  adopted  by  my learned  brother  in this connection and  there  is  nothing further which I can usefully add.     As  regards section 4 (b)it has been held by my  learned brother that the provision of this clause is unconstitution- al as it does not disclose any public purpose  at all.   The requirement  of  public purpose is  implicit  in  compulsory acquisition of property by the State or, what is called, the exercise of its power of eminent domain.  This condition  is implied in the provision of article 31 (2) of the  Constitu- tion and although the enactment in the present case fulfills the requirements of clause (3) of article 31 and as

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958 such  attracts the operation of clause (4) of that  article, my  learned brother has taken the view that the bar  created by  clause (4) is confined to the question  of  compensation only and does not extend to the existence or necessity of  a public  purpose  which,  though implicit in,  has  not  been expressly provided for by clause (2)of the article.  For  my part I would be prepared to assume that clause (4)of article 31 relates to everything that is provided for in clause  (2) either  in express terms or even impliedly and  consequently the  question of the existence of a public purpose does  not come within the purview of our enquiry in the present  case. Even  then  I would hold that the same reasons,  which  have weighed with my learned brother in  declaring section 23 (f) of  the  impugned Act to be  unconstitutional,  apply   with equal, if not greater, force to section 4 (b) of the Act and I  have  no hesitation in agreeing with him as  regards  his decision  on the constitutionality of this provision of  the Act  though  I  would prefer to adopt a  different  line  of reasoning in support of the same.     Section  4 (b) of the Bihar Land Reforms Act lays  down, as  one of the results of the publication of a  notification under  section  3  (1)of  the  Act  that  "all  arrears   of rents  ..........  and all cesses together with interest, if any, due thereon for any period prior to the date of vesting which were recoverable in respect of the estate or tenure by the proprietor or tenureholder and the recovery of which was not  barred  by any law of limitation shall vest in  and  be recoverable by the State".  The explanation attached to  the clause further provides that for purposes of  the clause the expression  "arrears of rent" shall include arrears  in  re- spect of  which  suits  were  pending on the, date of  vest- ing  or  in respect of  which decrees were  obtained  before that  date  together  with costs allowed  by  such  decrees. Under  section 24 of the Act, 50% of these arrears  of  rent are directed to be added to the amount of compensation money payable lot the estate or interest calculated in  accordance with the provisions of the Act.      959     The  arrears of rent whether merged in decrees  or  not, which were due to the landlord for a period anterior to  the date  of  notification under section 3(1) of the  Act,  were undoubtedly  the property of the landlord,  irrespective  of his  interest in the estate or tenure which is the  subject- matter  of acquisition. Such arrears could not vest  in  the State  as a normal result of acquisition of any  estate   or interest   therein,   and  it  is conceded  by  the  learned Attorney-General  that article 31-A of the Constitution  has no  application  so far as these arrears of  rent  are  con- cerned.  The  arrears of rent, therefore, are  the  subject- matter  of  separate and indipendent acquisition  under  the Bihar Land Reforms Act, if the word "acquisition" can at all be appropriate to cases of this description.     It cannot be disputed that in every Government there  is inherent   authority   to appropriate  the property  of  the citizens for the necessities of the State and constitutional provisions  do not confer this power though  they  generally surround it with safeguards.  The restraints invariably  are that  when private property is taken, a pecuniary  compensa- tion  must be paid(1).  Thus eminent domain is an  attribute of sovereign power supposed to be tempered by a principle of natural  law  which  connects its exercise with  a  duty  of compensation     Possibly  under  the impression that the  sacredness  of private  property  should not be confided to  the  uncertain

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virtues  of the party in power for the time being, the  Con- stitution-makers  of our country have declared it as one  of the  fundamental  rights  that no property  shall  be  taken possession of or acquired for public purpose unless the  law directing its appropriation makes provision for compensation in  the  manner laid down in article 31 (2). Clause  (4)  of article  31  does  not do away with the  obligation  to  pay compensation;  it merely lays down that laws which  are  re- ferred to in clause (3) of the article would be immune  from judicial scrutiny on the ground of inadequacy of the (1)Vide  Cooley on Constitutional Limitations, Vol.  II,  p, 1110 (2)Vide Encyclopaedia of Social Science, Vol. V, p. 493. 960 amount  of compensation or the impropriety of the  principle for assessing the same as provided for in the enactment. The clause presupposes however that the enactment is the  result of a valid exercise of a legislative  power conferred on the legislature  by the appropriate entries in  the  Legislative Lists and if the legislature acts outside these entries  or, under  the  pretence of acting within them,  does  something which is in flat contradiction with its contents, clause (4) of article 31 could not be invoked to afford any  protection to such legislation.     Clause (4) (b) of the impugned Act read with the  provi- sion  of section 24 of the same, empowers the State  Govern- ment  to appropriate all the arrears of rent due to a  land- lord  at a particular time and the only obligation it  casts on  the  Government in this respect is to allow 50%  of  the amount  thus  appropriated  as solatium  for  the  so-called acquisition.  On  the face of it the  legislative  provision purports  to have been made in exercise of the  powers  con- ferred  on the State legislature under entry 30 of  List  II and  entry 42 of List III of Schedule VII of  the  Constitu- tion.  In my opinion, this is a mere device or pretence  and the real object which the legislation intended to accomplish is  to deprive a man of his money which is not ordinarily  a subject-matter of acquisition, in exercise of what are known as powers of eminent domain by the State, without giving him anything  in exchange; and under the guise of  acting  under entry  42  of  List III, the legislature has  in  truth  and substance evaded and nullified its provisions altogether.     The general principles, which distinguish the powers  of eminent  domain from other powers of the State  under  which the sacrifice of the proprietary interest of a citizen could be  demanded or imposed, are fairly well-known. As has  been observed by Cooley in his Constitutional Limitations  "every species of property which the public needs  may require  and which  the Government cannot lawfully appropriate under  any other right, is subject to be seized and     961 appropriated under the right of eminent domain (1). Money as such and also rights in action are ordinarily excluded  from this List by American jurists and for good reasons(2). There could  be  no possible necessity for taking either  of  them under the power of eminent domain.  Money in the hands of  a citizen  can  be  reached by the exercise of  the  power  of taxation, it may be confiscated as a penalty under  judicial order  and  we can even conceive of cases  where  the  State seizes or confiscates money belonging to or in the hands  of a  citizen under the exercise of its ’police’ powers on  the ground  that such fund may be used for unlawful purposes  to the  detriment  of the interest of the  community.  But,  as Cooley  has pointed out (3), taking money under  the   right of  eminent   domain when it must be  compensated  by  money

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afterwards could be nothing more or less than a forced  loan and  it is difficult to say that it comes under the head  of acquisition  or requisitioning of property as  described  in entry  36  of List II and is embraced  within  its  ordinary connotation.     It  is  said by the learned  Attorney-General  that  the subject  matter of acquisition in the present case  is.  not money but choses in action. It seems to me that there is  no difference  in  principle between them because  a  chose  in action can be available to the acquiring authority only when it  is made to produce money; Otherwise it is useless  alto- gether (3).     Assuming however that entry 36 of List II is wide enough to include acquisition of money or a right of action, I have no hesitation in holding that in providing for  compensation in  respect of such acquisition the legislature has  made  a colourable  use  of  entry 42 of List III  and  has  thereby defeated the purpose of that entry altogether.  Entry 42  of List  III  speaks of "principles on which  compensation  for property  acquired or requisitioned for the purposes of  the Union or of a State or any other public purpose is to be    (1) See Cooley on Constitutional Limitations. Vol. II, p. 1113. (2) Cooley, Vol. 11, p. 1118; Willis on Constitutional  law, p  816. (3)  Vide Cooley on Constitutional Limitations, Vol. 11,  p. 1118, F.N. 124 962 determined,  and the form and the manner in which such  com- pensation is to be given".  This is a description of  legis- lative  head and I agree with the  learned  Attorney-General that  in  deciding the competency of the  legislation  under this entry, we are not concerned with the justice or propri- ety of the principles upon which the assessment of compensa- tion is to be made under a particular legislation nor are we concerned  with  the  justice or otherwise of  the  form  or manner in which such compensation is to be given.  I do not, however, agree  with  the  learned Attorney-General for  the reasons already given by my learned brother in his  judgment that  legislation under this head need not provide  for  any compensation  at all and that a legislative provision  which declares  that no compensation is to be given  comes  within the  ambit  of this legislative head. Such  construction  is repelled  by the very language of the entry which speaks  of giving  compensation  and not of denying or  witholding  it. Stripped  of  all disguise, the net result of  the  impugned provision  is that it would be open to the State  Government to appropriate to itself half of the arrears of rent due  to the  landlord prior to the date of the  acquisition  without giving him any compensation whatsoever.  Taking of the whole and returning a half means nothing more or less than  taking half  without any return and this is naked confiscation,  no matter  in whatever specious form it may be clothed or  dis- guised.  The impugned provision, therefore, in reality  does not lay down any principle for determining the  compensation to  be paid /or acquiring the arrears of rent, nor  does  it say anything relating to the form of payment, though  appar- ently  it purports to determine both.  This, in my  opinion, is  a fraud on the Constitution and makes  the  legislation, which  is  a  colourable one,  void  and  inoperative.   The learned Attorney-General has contended that it is beyond the competency  of  the Court to enter into a question  of  bona fides  or mala fides of the legislature. In a sense this  is true.  If the legislature is omnipotent, the motives,  which

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impel  it to enact a particular law, are absolutely  irrele- vant; and 963 on  the other hand, if it tacks competence the  question  of motives does not at all arise.  But when a legislature has a limited  or  qualified  power and has got to  act  within  a sphere  circumscribed  by legislative entries. the question, whether in purporting to act under these entries, it has, in substance,  gone  beyond them and has  done  certain  things which  cannot  be  accomplished within the  scope  of  these entries,  is really a  question affecting the competency  of the  legislature.  In such cases, although  the  legislation purports  to have been enacted under a particular entry,  if it  is really outside it, it would be void (1). It has  been suggested  in course of the argument on behalf of the  State that  in the present case the Government in the exercise  of its powers of acquisition could acquire the arrears of  rent and  as  the  arrears were still unrealised,  it  was  quite legitimate  and proper for the Government to deduct half  of the  gross amount as consideration for the trouble  and  ex- pense that it would have to undergo in the matter of realis- ing  these arrears.  This would mean that what the  legisla- ture intended is simply to enable the Government to help the zamindars  in realising the arrears of rent and as a  return for the help which it is to render, the Government is  given the  right to retain half of the arrears that were  actually due.   This could not possibly have been the real  intention of the legislature and I do not think that there is any item in  the  long legislative lists framed by  the  Constitution which  empowers the legislature to interfere with the  legal rights  of  the landlord in this manner apart  from  special circumstances like indebtedness or otherwise and impose upon him  an onerous obligation to which he is not  a  consenting party. A legislation of this character is a complete  novel- ty, the like of which has seldom been witnessed before.  The result is that I concur in the order which has been made  by my  learned brother Mahajan J. in this case and I allow  the appeals  subject to the two modifications  indicated  above. There would be no order as to costs. (1) See Lefroy on Canadian Constitution. pp. 79-80. 964     DAS J.--The proceedings out of which these appeals  have arisen were initiated by different proprietors of estates in Bihar  challenging the constitutional validity of the  Bihar Land  Reforms Act, 1950 (Bihar Act XXX of 1950) which   will hereafter in this judgment be referred to as "The Act".     On  January  26, 1950, when our Constitution  came  into force, the Bill which eventually became the Act was  pending before the Legislature of the State of Bihar. After the Bill had  been passed by the State Legislature, it  was  reserved for  the  consideration of the President. On  September  11, 1950,  that  Bill received the assent of the  President  and became the Act. The provisions of the Act have been analysed and summarised in the judgment just delivered by Mahajan  J. and  it is not necessary for me to burden this  judgment  by recapitulating the same.  On September 25, 1950, the text of the Act was published in the Official Gazette with a notifi- cation under section 1 (3) dated September 24, 1951), bring- ing the Act into operation. A notification under section  :3 of  the Act dated September 25, 1950 vesting the estates  of certain  named proprietors was published in   the   Official Gazette  on  the next day.  This  notification  having  been published  in the Official Gazette, some of the  proprietors affected thereby instituted suits in the Subordinate  Courts in Bihar after giving the requisite notice under section  80

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of the Code of Civil Procedure and prayed for a  declaration that  the Act was unconstitutional and void and  that  their title to the properties  remained  unaffected.  Some of  the other  proprietors filed applications in the High  Court  at Patna under article 226 of the Constitution praying for  the issue of appropriate writs, directions or orders. The  State of  Bihar  filed its written statements in the  suits  which were transferred to the High Court for disposal in  exercise of its extraordinary Original Civil Jurisdiction,  The suits and  the  applications were heard together.  As  the  issues involved grave questions of interpretation of the  Constitu- tion,  the suits and applications were placed before a  Spe- cial Bench  965 of  the Patna High Court and were disposed of on  March  12, 1951.   All the learned Judges, for one reason  or  another, repelled  all  the main contentions of the  proprietors  but held that the Act was unconstitutional in that it denied  to the  proprietors equal protection of the laws guaranteed  by article 14 of the Constitution.  The High Court rejected the plea of the State that article 31 (4) of the Constitution by reason  of the words "notwithstanding anything in this  Con- stitution"  excluded article 14 at least in its  application to the alleged inequality of compensation. Article 31 (4) is in these terms :-     "If any Bill pending at the commencement of this Consti- tution in the Legislature of a State has, after it has  been passed by such Legislature, been reserved for the considera- tion  of  the President and has received his  assent,  then, notwithstanding  anything in this Constitution,  the law  so assented  to  shall  not be called  in   question   in   any court  on the ground that it contravenes the  provisions  of clause (2)."     The  State  of Bihar obtained leave of  the  Patna  High Court under article 132 (1) of the Constitution to appeal to this Court and preferred these appeals before us.     It  may be mentioned here that the States of Uttar  Pra- desh  and  Madhya Pradesh also passed  legislation  for  the abolition of zamindaries in their respective States and  the validity  of  those legislations was also contested  by  the proprietors affected thereby.  The respective High Courts of those States, however, upheld the validity of the respective State legislations and the aggrieved proprietors came up  to this  Court either on appeal or on  substantive  application under article 32.  It was at that stage that the Constituent Assembly  passed  the Constitution  (First  Amendment)  Act, 1951.  Sections4 and 5 of the Act which are material for our purpose are as follows :- Insertion of new  4. After article 31 of the Constitution article 3I-A.       the following article shall be inserted, and shall be deemed always to have been inserted, namely :-- 966 31-A. (1)Notwithstanding anything in the fore- saving of laws         going provisions of this Part, no law providing for ac-      providlng for the acquisition by the quisition of estates,  State of any estate or of any rights etc.                   therein or for the extinguishment or modification  of any such rights shall be deemed to be  void on the ground that it is inconsistent with, or takes away or abridges  any of the rights conferred by any  provisions  of this Part:     Provided that where such law is a law made by the Legis- lature of a State, the provisions of this article shall  not apply thereto unless such law, having been reserved for  the consideration of the President, has received his assent.

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(2) In this article,--     (a)  the expression "estate" shall, in relation  to  any local area, have the same meaning as that expression or  its local  equivalent has in the existing law relating  to  land tenures  in force in that area, and shall also  include  any jagir, inam or muafi or other similar grant;     (b)  the expression "rights", in relation to an  estate, shall  include any rights vesting in a proprietor,  sub-pro- prietor, under-proprietor,  tenure-holder  or other interme- diary and any rights or privileges in respect of land  reve- nue.                                 5. After article 31-A of the                                  constitution as inserted by                               section 4, the following  arti cle   shall be inserted namely :- Insertion of new article 3I-B,                     31-B.  Without prejudice to the Validation of       generality  of the provisions  con- certain Acts and    tained in article 31-A, none of the Regulations                       Acts and Regulations specified in the Ninth  Schedule  or any of the provisions thereof  shall  be deemed  to  be  void, or ever to have become  void,  on  the ground that such Act, Regulation or provision is  inconsist- ent  with, or takes away or abridges any of the rights  con- ferred by, any provisions of this Part, 967 and  notwithstanding  any judgment, decree or order  of  any court or tribunal to the contrary each of the said Acts  and Regulations  shall,  subject to the power of  any  competent legislature to repeal or amend it, continue in force."     A  new  Schedule called the  Ninth  Schedule  specifying thirteen  several  Acts and Regulations of which  the  Bihar Land  Reforms  Act,  1950. was the first was  added  to  the Constitution.  The legal validity of the Constitution (First Amendment) Act, 1951, has been recently upheld by this Court and  all  Courts must give effect to the  two  new  articles which are now substantive parts of our Constitution.   Arti- cle  31-A relates back to the date of the  Constitution  and article 31-B to the respective dates of the Acts and Regula- tions  specified  in the Ninth Schedule.  It  has  not  been disputed  that the provisions of the above two  newly  added articles_  have to be taken into consideration in  disposing of these appeals.     Learned  counsel appearing for the   respondents  accept the  position that as a result of the constitutional  amend- ments   the  impugned Act  has been removed from the  opera- tion  of  the  provisions of Part III  of  the  Constitution including article 14 and that the respondents cannot, there- fore, complain of the breach of the equal protection of  the laws under article 14 which was the only ground on which the respondents  succeeded in the High Court.  Learned  counsel, however,  maintain that although they cannot  now  challenge the  constitutionality  of  the Act on the  ground  that  it contravenes  or  is  inconsistent  with  or  takes  away  or abridges  any of the rights conferred by any of  the  provi- sions of Part III of the Constitution; it is,  nevertheless, open to them to call the Act into question on other  grounds founded  on  other parts of the Constitution or  on  general principles of law. Accordingly Mr. P. R. Das formulates  the following five principal grounds of attack against the  Act, namely:     A,   On a proper interpretation of articles 245 and  246 read with entry 36 in List II and entry 42 in 968

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List  III  the Bihar Legislature had no power to  enact  the said  Act inasmuch as it makes no provision for the  payment of  just  compensation for the proposed acquisition  of  the zamindaries and tenures.     B.  Even if the Court does not accept the correctness of the  arguments based on entry 36 in List II and entry 42  in List  III and holds the respondents barred from  going  into the  question of compensation by reason of  articles  31(4), 31-A  and 31-B the respondents are still entitled  to  chal- lenge the Act on the ground that the proposed acquisition is not for a public purpose.     C.   The  Act constitutes a fraud on  the  Constitution. that  is to say, while it purports to be in conformity  with the Constitution it in fact, constitutes a defiance of it.     D.   The  Act  is unenforceable in  that  section  32(2) provides for payment of compensation in 40 equal instalments without  specifying the period of interval between  the  in- stalments.     E.  The Act delegated essential legislative functions to the executive Government.     The  heads of  objections  thus  formulated  by Mr. P.R. Das  apparently look formidable and it is necessary,  there- fore,  to  consider with close attention the  arguments  ad- vanced by him in support of each of them.     Re Ground A: That article 31 (’2) imposes upon a law for the  compulsory acquisition of private property the  obliga- tion  to provide for compensation and that  such  obligation is,   therefore, a provision of article 31 (2) is not  chal- lenged.  Nor is it claimed, in view of articles 31 (4), 31-A and  31-B, that it is still open to the respondents to  call in question the validity of the impugned Act  on the  ground that it contravenes or is inconsistent with or takes away or abridges the provision  for compensation made in article  31 (2).   What is urged is that the obligation to  provide  for compensation  is not a provision to be found exclusively  in article  a 1 (2) but that it is also provided for  in  other parts of the Constitution and   969 that,  in so far as such obligation is found provided  else- where, the impugned Act can well be challenged on the ground that it contravenes or is inconsistent with or takes away or abridges the provisions of those other parts of the  Consti- tution, for that ground of challenge has not been taken away by articles 31 (4), 31-A and 31-B, by reason of the delimit- ing  words  used therein. The argument is developed  in  the following way. The State’s power to acquire private property is,  in  essence, a power to compel the owner  to  sell  his property  when the public interest requires  it.   Authority for this proposition is to be found in Blackstone’s  Commen- tary  (Broom’s Edn.) p. 165 and in  Cooley’s  Constitutional Limitations,  8th  Edn.,  Vol. II, p.  1201,  Footnote  (8). Indeed,  in  some  of the English  statutes  for  compulsory acquisition of lands and hereditaments (e.g., 5 & 6 Vic.  C. 94  and  8 & 9 Vic. C. 18) the word "purchase" was  used  to denote  acquisition.   As  there can be no  sale  without  a price,  there  can be no compulsory acquisition  of  private property  without a provision for payment of just  compensa- tion, i.e., its equivalent value in money.  That the obliga- tion to pay just compensation for compulsory acquisition  of private property is a principle of natural equity recognised by  all temperate and civilized governments, that the  right to compensation is an incident to the exercise of the  power of  eminent domain and that the one is so  inseparably  con- nected with the other that they may be said to exist, not as separate  and distinct principles but, as parts of  one  and

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the  same  principle  are well-established by  a  series  of decisions  of  the American courts quoted by  Harlan  J.  in Chicago,   Burlington   and  Quincy  Railroad   Company   v. Chicago(1). In England Lord Dunedin in  Attorney-General  v. De Keyser’s Royal Hotel Ltd.(2), described the obligation to pay compensation as "a necessary concomitant to taking".  It follows, therefore, that the obligation to pay  compensation is inseparable from and is implicit in the power of acquisi- tion.  This obli- (1)  166 U.S. 216; 4r L. Ed. 979,                (2)  [1920] A.C. 508. 970 gation flows from the mere use of the word ,’acquisition" in entry 36 in List II, as in entry 33 in List I. That word, by itself,  according  to  Mr. P.R. Das,  connotes  a  compound concept,  namely, the concept of a power of taking  on  just terms  and  confines the very legislative  competency  under those  entries within the limits of that  compound  concept. If,  however, the word "acquisition" in entry 36 in List  II and entry 33 in List I does not by itself imply the  obliga- tion  to pay just compensation, then, urges Mr. P.R. Das  in the  alternative,  the words "subject to the  provisions  of entry  42 of List III" occurring at the end of entry  36  in List  II  certainly brings in that obligation.  On  a  plain reading  of entry 36 in List II the power to make  law  with respect  to matters specified therein is "subject to",  that is  to say, "conditional upon" the exercise  of  legislative power under entry 42 in List III.Those concluding words, Mr. P.R. Das says, import the obligation to provide for  compen- sation as provided in entry 42 in List Iii into entry 36  in List  II  and thereby enlarge the content of the  last  men- tioned  entry so as to make it a legislative head comprising the compound concept referred to above.  The third  alterna- tive position is that if the word "acquisition" in entry  36 in  List  II does not, by itself, imply  the  obligation  to provide  for. compensation and if the words "subject to  the provisions  of  entry  42 of List III" do  not  import  that obligation  as  stated above, entry 42 in List  Iii  should, nevertheless,  be  construed as conferring a  power  coupled with a duty, so that if the law-making power under entry  33 in  List I or entry 36 in List II is at all  exercised,  the lawmaking  power  under entry 42 in List III  must,  on  the principle  laid down by the  House  of  Lords  in Julius  v. Lord  Bishop  of Oxford(1)  and  adopted by  this  Court  in Chief  Controlling  Revenue Authority v.  Maharashtra  Sugar Mills  Ltd.(2),  also be exercised.  It is  urged  that  the Bihar Legislature having purported to exercise its power  to make  a  law for compulsory acquisition  of  property  under entry-36 in (1) L.R. 5 App. Cas. 214.                  (2) [1950] S.C.R. 971 List II but not having made any law laying down any  princi- ple  for  determining what may, in the eye of  the  law,  be regarded as just compensation at all, the Act is ultra vires and  void.   The arguments thus developed by  Mr.  P.R.  Das undoubtedly  have  the  merit of  attractive  ingenuity  and apparent cogency and certainly call for very careful consid- eration,     To  cut  at the root of the above argument  the  learned Attorney-General appearing for the appellant State  contends that the impugned Act is a law made with respect to  matters mentioned  in entry 18 in List II and not under entry 36  in List II. The contention is that it is essentially a legisla- tion for land reforms and alteration of land tenures.  It is pointed  out  that the Act eliminates the interests  of  all

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zemindars and intermediate tenure-holders so that the  State and the actual tiller of the soil may be brought into direct relationship.   Incidental  to this primary  object  is  the acquisition of the various interests in the land.  Reference is  made to the cases of The United Provinces v. Mst.  Atiqa Begum  and  Others(1), Thakur Jagannath Baksh Singh  v.  The United Provinces(2) and Megh Raj and Another v. Allah Rakhia and Others(s) in support of the proposition that each  entry in  the  list, which is a category or head of  the  subject- matter of legislation, must be construed as widely as possi- ble  so as to inelude all ancillary matters.  This  line  of reasoning  found favour with Shearer J. but was rejected  by Reuben J. and S.K. Das J.  There is no doubt that "land"  in entry  18 in List II has been construed in a very  wide  way but  if  "land" or "land tenures" in that entry is  held  to cover  acquisition  of land also, then entry 36 in  List  II will have to be held as wholly redundant, so far as  acquis- tion  of land is concerned, a conclusion to which I  am  not prepared  tO assent.  In my opinion, to give a  meaning  and content to each of the two legislative heads under entry  18 and  entry  36  in List II the former should be  read  as  a legislative   (1)  [1940]  F.C.R. IIO at p. 134-             (3)  [1947] F.C.R. 77.   (2) [1946] F.C.R. III at p. 119. 972 category  or head comprising land and land tenures  and  all matters  connected  therewith other than  acquisition     of land which should be read as covered by entry 36 in List II. Further, the impugned Act purports to acquire all arrears of rent and a law for acquisition of the arrears of rent cannot possibly be said to be a law with respect to matters  speci- fied in entry 18 in List II for it cannot be supposed to  be a law relating to the collection of rent within the  meaning of  that  entry.  On this point I find myself  in  agreement with  Reuben  J.  and S.K. Das J. and I  cannot  accept  the arguments  of the learned Attorney-General to the  contrary. Therefore, the arguments of Mr. P.R. Das founded on entry 36 in  List II and entry 42 in List III cannot be  rejected  in limine  but  have to be considered and I proceed  to  do  so immediately.     That  the obligation to pay compensation is  concomitant to,  that  is to say, accompanies, the power  of  compulsory taking of private property by the State cannot be  disputed. The  first important question is whether this obligation  is implicit  in the term "acquisition" as used in entry  36  in List II, or in other words whether this obligation is to  be inferred  simply from the use of that term as a part of  the content  or meaning thereof. In Attorney-General v. De  Key- ser’s  Royal Hotel Limited (supra) Lord Dunedin pointed  out that  the power of acquisition was. in its  origin,  derived from  the prerogative of the Crown and that the  payment  of compensation  was  originally a matter  of  negotiation  and bargain  between the Crown and the subject, but came  to  be determined  later  on by statutes of local  application  and finally by statutes of general application and that,  there- fore, the Crown, which is an assenting party to every  stat- ute, must, in effect, be regarded as having consented to the exercise of its prerogative being made subject to payment of compensation regulated by statutes.  In that case,  however, it was not disputed in arguments that the taking itself  was a  matter  of prerogative right.  In the  United  States  of America  the power of eminent domain was not originally,  in terms, conferred on 973

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the United States by any provision of the Federal  Constitu- tion,  but this power has always been recognised  to   exist as  an inherent attribute of the sovereignty of  the  State. So far as the United States are concerned, the Fifth  Amend- ment  by providing that private property shall not be  taken for  public use without just compensation gave  a  constitu- tional  recognition to the right of eminent domain  and,  to protect  the subjects, imposed a limitation on the  exercise of  that right by the State.  This indicates that the  power of  acquisition and the obligation to pay  compensation  are two  separate  and  distinct concepts  although  the  second follows  the  first. If the obligation to  pay  compensation were  an  integral  part of the concept or  the  meaning  of "taking"  itself, then this part of the Fifth Amendment  was wholly unnecessary.  It follows, therefore, that the expres- sion  "acquisition"  does not, by itself and  without  more, import  any obligation to pay compensation. It is  urged  by Mr. P.R. Das that entry 42 in List III really implements the obligation  implicit  in  entry 36 in List II  and  the  two entries are complementary to each other. If this  obligation were not implicit in entry 33 in List II then where else, it is  asked, is the obligation to pay compensation to be found ?  The obvious answer is that obligation is to be  found  in article  31  (2)  in  Part III  of  our  Constitution.   The obligation  to pay compensation may be introduced as a  part of the legislative power itself, in which case it becomes  a composite power, namely, a power to make law with respect to acquisition  circumscribed by the obligation to provide  for compensation.  Thus in section 31 (XXXI) of the Commonwealth of Australia Constitution Act the acquisition of property on just  terms has been made a head or category of  legislative power  of the Commonwealth Parliament.  There the  power  is not to make a law for the acquisition of property simplicit- er  but is to make a law for the acquisition of property  on just terms which connotes that the legislative power  itself is circumscribed by the necessity for providing just  terms. But there is no overriding 974 necessity of constitutional law that I know of, or that  has been brought to our notice, which requires that the  obliga- tion  to  pay compensation for the acquisition  of  property must  be made part and parcel of the very legislative  power to make a law with respect to the compulsory acquisition  of private  property.  It must depend on the provisions of  the particular  constitution  under consideration.  What  do  we find  in our Constitution ? We find that under  article  246 Parliament    has exclusive power to make laws with respect, inter  alia,  to matters specified in entry 33  in  List  I, namely,  "acquisition or requisitioning of property lot  the purposes  of  the Union, that the  State  Legislatures  have exclusive  power to make laws with respect, inter  alia,  to matters  specified  in  entry a6 in  List  II,  namely,  the ,acquisition  or requisitioning of property except  lot  the purposes  of the Union subject to the provision of entry  42 of List III" and that both Parliament and the State Legisla- tures  may  make laws with respect to matters set  forth  in entry 42 in List III, namely, the principles for determining the  compensation  and the form and manner  of  giving  such compensation.   This legislative power of Parliament  or  of the State Legislatures is, by article 245, made "subject  to the provisions of this Constitution."  One of the provisions of the Constitution is article 31 (2) under which no proper- ty  can be "taken possession of or acquired for public  pur- poses  under any law authorising the taking of such  posses- sion or such acquisition unless the law provides for compen-

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sation  for  the  property and either fixes  the  amount  of compensation  or specifies the principles on which, and  the manner  in which, the compensation is to. be determined  and given."  The  scheme  of our Constitution  obviously  is  to provide  the three things separately, namely, the  power  of making a law for acquisition of property in article 246 read with entry 33 in List I and entry 36 in List II, the obliga- tion  of  such law to provide for  compensation  in  article 31(2) and the power of making a law laying down the  princi- ples  for determining such compensation in article 246  read with entry 42 in List III. 975 According  to  this  scheme it is not necessary  at  all  to regard  entry a3 in List I and entry 36 in List,  II,  which are  mere heads of legislative power, as  containing  within themselves  any  obligation to provide for  the  payment  of compensation.  In other words, it is not necessary to  treat the  obligation to pay compensation as implicit in or  as  a part or parcel of these legislative heads themselves, for it is  separately  and expressly provided  for  in  article  31 (2).   The well-known maxim expressum facit cessare  tacitum is,  indeed, a  principle of logic and common sense and  not merely  a technical rule of construction (See Broom’s  Legal Maxims,  10th Edn, p. 443 at p. 452).  The express provision in article 31 (2) that a law of acquisition, in order to  be valid,  must  provide  for  compensation,  will,  therefore, necessarily exclude all suggestion of an implied  obligation to  provide for compensation sought to be imported into  the meaning of the word "acquisition" in entry 36 in List II. In the  face of the express provision of article 31  (2)  there remains  no  room for reading any such  implication  in  the legislative heads.     Mr.  P.R. Das suggests, in the alternative, that if  the obligation  to provide for compensation is not  implicit  in the word "acquisition" itself as used in entry 36 in List II that  obligation is attracted and made a part and parcel  of that entry by reason of the words "subject to the provisions of  entry  42 of List III".  The last mentioned  words  are, however. not to be found in entry 33 in List I and this part of  Mr.  P.R. Das’s argument would lead  to  this  anomalous result that while the obligation to provide for compensation is  made a part of the legislative power under entry  36  in List  II  by virtue of its last few words quoted  above,  no such  obligation is attracted and made part of the  legisla- tive power under entry33 in List I, and that, therefore,  in making  a law with respect to acquisition of property  under entry  33  in List I Parliament, unlike the  State  Legisla- tures, will not be bound to provide for any compensation  at all. This cannot possibly be the intention of the framers 976 of our Constitution.  Further, Mr. P.R. Das reads the  words "subject  to" as meaning "conditional upon" the exercise  of the legislative power under entry 42 in List III, that is to say,  conditional upon fulfilling the obligation to  provide for  compensation and the form and the manner in which  such compensation is to be given.  I agree with S.K. Das J.  that the   words "subject to" have not the meaning sought  to  be given  to them by Mr. P.R. Das but that they mean "but  not" so  as to indicate that the scope of entry 36 in List II  is restricted, that is to  say, that the subjectmatter of entry 42 in List III is not within the content of entry 36 in List II.   If entry 42 in List III were, by reason of  the  words "subject  to the provisions of entry 42 of List III"  occur- ring in entry 36 in List II, to be read as having been  made a  part  of the content of entry 36 in List II then  it  may

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well be argued that, in view of article 246, Parliament will not  be  competent  to maintain law with respect to  princi- ples  on which compensation is to be determined.  It  is  in order  to prevent this argument and out of abundant  caution that   the  subjectmatter of entry 42 in List III  has  been excluded  from  the content of entry 36 in List  II  by  the words "subject to" et cetera and Parliament may,  therefore, freely make a law with respect to the matters thus  excluded from  entry  36 in List II and set forth as a  separate  and independent item in entry 42 in List III. This consideration was not material in connection with entry 33 in List I which explains  the omission of the words "subject to"  et  cetera from that entry. Mr. P.R. Das finally urges that if the obligation to provide for  compensation is not implicit in the word  "acquisition" in  entry 36 in List II and if that obligation is not to  be read  into  that entry even in view of  the  words  "subject to   ................  "at the end of it, even then  if  the State  exercises  its power to make a law  with  respect  to acquisition of property under entry 36 in List II it is  the duty  of the State Legislature to make a law also  with  re- spect  to matters specified in entry 42 in List III  on  the principle that as 977 entry 42 in List III confers a power on the Legislature  for the protection of the interest of persons whose property  is compulsorily  acquired, such power must. therefore,  be  re- garded as coupled with a duty to exercise it.  No  authority has been brought to our notice establishing or even suggest- ing  that the principle laid down by the House of  Lords  in Julius v. Lord Bishop of Oxford (supra) has been extended to the  exercise of legislative power and I am not prepared  to assent  to  the proposition.  Article 246 does not  make  it obligatory for Parliament or the State Legislatures to  make a  law under any of the entries in any of the Lists  in  the Seventh Schedule.  Entry 42 in List III does not, therefore, impose any duty upon Parliament or the State Legislatures to make  any  law for payment of compensation.   What  requires Parliament  or  State Legislatures, when making  a  law  for compulsory  acquisition of private property, to provide  for compensation and either to fix the amount thereof or specify the principles on which and the-manner in which the  compen- sation  is  to be determined and given is the  provision  of article  31  (2). Entry 42 in List 111  only  constitutes  a legislative head under which Parliament or the State  Legis- latures  may make a law so as to give effect to the  obliga- tion  expressly imposed on them by article 31 (2).  In  view of the clear provision of that article it is wholly unneces- sary  to  read entry 42 in List III as imposing  an  implied duty on the Legislature on the principle referred to in  the House of Lords case.     That  the obligation to provide for compensation is  not included in the content of the legislative power under entry 36 in List II, by itself or read with entry 42 in List  III, will be made further clear when we come to consider  closely clauses (4) and (5) of article 31 and article 31-A.  Article 31(4)  protects a law of the description  mentioned  therein against the provisions of article 31(2). It follows,  there- fore,  that what is sought to be protected by article  31(4) is a law for the acquisition or taking possession of proper- ty which does not, amongst other things, provide for compen- sation or 978 does  not fix the amount or specify the principles on  which and the manner in which the compensation is to be determined

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and given, for otherwise there would be no necessity for any protection.  The question at once arises as to whether there is  any legislative entry in List 11 under which a  law  for acquisition or taking possession of property without compen- sation  can  be made by a State Legislature.   To  test  the validity of Mr. P.R. Das’s argument and to avoid the compli- cation  arising  out of the residuary powers  of  Parliament under  article 248 and entry 97 of List II I have taken  the case  of a law of acquisition made by the legislatures of  a State  which  also come within article 31  (4).   Is  there, then,  any entry in List II under which a State  Legislature can  make  a  law for acquisition  without  compensation  or public purpose ? Obviously there is none, except entry 36 in List  II.  If that entry by itself or read with entry 42  in List  III has any implication as suggested, namely,  that  a law for acquisition of property-made under entry 36 in  List II  without a provision for compensation will be beyond  the legislative   competency  of the  State  Legislatures,  then there  is no other entry under which such a law can be  made by a State Legislature and there can, therefore, be no point in  making  a  provision in article  81(4)  for  protecting, against  article  31(2), a law which,  on  this  hypothesis. cannot be made at all. Article 81(4) postulates a law  which offends against 31 (2) and so far as the State  Legislatures are  concerned there is no entry in List II except entry  36 under  which such an offending law may be made by the  State Legislatures.  This  circumstance  unmistakably  establishes that entry 36 in List II, by itself or read with-entry 42 in List III, has not any such implication as is imputed to  it. Likewise  take  article 81 (5) (b) (ii) which  protects  the provisions of any law which the State may hereafter make for the  promotion of public health or the prevention of  danger to  life  or property.  The law which is thus sought  to  be protected must also involve acquisition of property  without any  provision for compensation, for otherwise there can  be no occasion or necessity for 979 any protection against article 31 (2).  A law of this  kind, in so far as such law provides for acquisition of  property, must necessarily be made by a State Legislature. if at  all, under  entry 36 in List II.  If Mr. P.R.  Das’s  contentions were  correct,  a  law for the promotion of  health  or  the prevention  of  danger  to life or  property  involving  the acquisition  of property without a provision  for  compensa- tion,  which is what is sought to be protected from  article 31 (2), can never be made, for the obligation to provide for compensation  is, according to him, implicit in  entry36  in List  II, by itself or read with entry 42 in List  III,  and there  is no other entry under which a law may be made by  a State  Legislature with respect to acquisition of  property. It is futile to attempt to get over this anomaly by suggest- ing  that  clauses (4) and (5) (b) (ii) of article  31  have been inserted in the Constitution ex abundanti cautela, for, if Mr. P.R. Das were correct in his submission, no amount of caution was necessary for protecting a law that, ex  hypoth- esi, cannot be made at all. Similar arguments may as well be founded  on article 31-A, for that article also  protects  a law from article 31 (2) which is in Part III of the  Consti- tution. It is suggested that article 31-A postulates a valid law made by a competent legislature within the ambit of  its legislative  powers. If a State Legislature in making a  law for  the acquisition of property for a public purpose  under entry 36 in List II must provide for compensation then a law made  conformably  with this supposed  requirement  of  that entry  by a State Legislature will require no protection  at

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all against article 31 (2), and article 31-A must be regard- ed as meaningless and unnecessary.   Surely, that conclusion is  manifestly  untenable.  In my opinion  clauses  (4)  and (5)(b) (ii) of article 31 and article 31-A clearly  negative Mr. P.R. Das’s proposition.  In my judgment, for the reasons stated  above, the  major premise in the arguments  advanced by  Mr.  P.R. Das under ’the first head,  namely,  that  the obligation  to pay compensation is implicit in entry  36  in Lis  II by itself or read with entry 42 in List III  is  un- sound. 980 The obligation to provide for compensation being, as I hold, a provision of article 31(2) and not being implicit in or  a part and parcel of the legislative power itself under  entry 36 in List II read by itself or in conjunction with entry 42 in List III, the impugned Act cannot, by virtue of  articles 31(4),  31-A and 31-B, be called in question on  the  ground that it contravenes or is inconsistent with or takes away or abridges  any of the rights conferred by the  provisions  of clause  (2) of article 31, that is to say, that it does  not provide for compensation.     Assuming  that the obligation to pay compensation  which is  expressly provided in article 31(2) is also implicit  in entry 36 in List II by itself or read with entry 42 in  List III, the respondents cannot. even then, be permitted to call in  question the validity of the impugned Act on the  ground that  it  does not provide for compensation, for  then  they will  be  doing  exactly what they are forbidden  to  do  by article  31 (4) and the newly added  articles.  Article31(4) and the added articles debar the respondents from  question- ing the validity of the Act on the ground, inter alia,  that it  contravenes  or is inconsistent with or  takes  away  or abridges  any of the rights conferred by the  provisions  of clause (2) of article 31.  The emphasis in those articles is rather on the "provisions" than on the number of the article or the Part of the Constitution. It is obvious that the real substance  of  the matter is that articles 31(4),  31-A  and 31-B  expressly seek to prevent a challenge to the  validity of the Act based on the ground, inter alia, that it does not provide  for  compensation. This obligation to  provide  for compensation is no doubt one of the provisions of article 31 (2)  but  if  as contended by Mr. P.R. Das,  the  self  same provision be found elsewhere in the same Constitution, e.g., entry  36  in  List II or entry 42 in List  III,  then  that "provision" must also be regarded as having been covered  by article  31(4)  and the two added  articles,  for  otherwise those articles will be rendered nugatory.  In my opinion, if two constructions are possible, the Court should adopt  that which 981 will  implement  and discard that which  will  stultify  the apparent  intention  of  the  makers  of  the  Constitution. Further, it must be borne in mind that article 31 (4)  which applies  "notwithstanding  anything in  this  Constitution", will,  by force of the very words, protect the  Act  against even  legislative incompetency, if any, arising out  of  the alleged noncompliance with the suggested implied provisions, if any, of entry 36 in List II and entry 42 in List III.  In my  judgment the respondents are not, by reason of  articles 31(4),  31-A and 31-B, entitled to call the Act in  question on  the  ground that it does not provide  for  compensation, whether  the ground is formulated as a breach of article  31 (2) or of the implied provision, if any, of the  legislative heads mentioned above.     It  will  be noticed that the argument that the  Act  is

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unconstitutional  is founded on the assumption that  it  has not laid down any principle for determining compensation  as required by entry 42 in List III and that the provision  for compensation is wholly illusory. Chapter V of the Act  deals with assessment of compensation.  Shortly put, the scheme is to start with the gross assets which are taken to be synony- mous  with the gross income and then to make certain  deduc- tions  therefrom and to arrive at the net assets.  Then  the compensation is to be calculated at a sliding scale of rates varying from 20 to 3 times of the net income. To the  amount thus  determined is to be added a moiety of the  accumulated arrrears of rent etc. and the compensation for the mines and minerals as determined under section 25. Ex facie, it cannot be disputed that the Act does prescribe some principles  for determining  the compensation payable to the  proprietor  or tenure-holder.  It is, however, pointed out that the  deduc- tion of 5 to 20 per cent. of the gross assets as and by  way of  cost of management is quite arbitrary. It is  said  that although  it  is well known that the percentage of  cost  of management  in relation to the income of a small  estate  is greater  than that of a larger estate, yet the Act  provides for deducting 20 percent. of the gross assets in the case of proprietors 982 of  the larger estates but only 5 per cent. in  the case  of the smaller estates.  Objection is next taken to the  deduc- tion  of  any amount under the head of works of  benefit  to raiyats the and also to the scale of such deduction.   These arguments,  to my mind, do not on close scrutiny, amount  to saying  that  the Act does not lay down  any  principle  for determining the compensation.  The real underlying  implica- tion  of these arguments, as I understand them, is that  the principles  are not good enough in that they do not  produce fair compensation.  I do not think the Court can go into the policy of the legislation.  All that the Court is  concerned with  is to see whether any principle has been laid down  as mentioned  in  entry  42 in List III. It is  true  that  the percentage of costs of management calculated on the basis of the  income of a big estate is less than that of  a  smaller estate,  but  it is quite clear that the Act has  fixed  the scale  of  deduction under this head and under the  head  of works of benefit according to the capacity of the proprietor or  tenureholder to bear it.  It is impossible to  say  that the  provision  for deduction for works of  benefit  to  the raiyats  is  not supported by any principle. A  landlord  is expected to spend money on works of benefit to his  raiyats, e.g.,  providing  tanks and  wells,  irrigation,  charitable dispensary,  schools  and  so forth and be it  said  to  the credit  of  some of the landlords that in practice  they  do spend  money  on this account. Therefore, there  is  nothing wrong,  when  calculating the net income of a  landlord,  to deduct  something  which the’ landlords should and  some  of them often do, in practice, spend under this head.  I see no absence of principle in this provision.  The rate of  deduc- tion, I have said, has been fixed according to the  capacity of  the proprietors or tenure-holders.  It has  been  shown. and it is not denied that in many cases a calculation of the net  income on the basis of the principles laid down in  the Act operates to reduce the gross income to a very small  net income.  To take only one instance, the gross annual  income of  the  Darbhanga  estate  is  about  Rs.  47,85,069,   the deduction 983 allowed by the Act is about Rs. 44.88,585 and the net income computed  according to the principles laid down in  the  Act

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comes  to about Rs. 2,96,484 or say Rs. 3 lacs and the  com- pensation  payable to  the Maharajadhiraj of Darbhanga  will be only rupees 9 lacs.  It has also been shown that at least in  one  case, e.g., in the case of the Raja of  Purnea  the compensation calculated according to the principle laid down in  the Act works out at a deficit figure. The fact that  in one isolated case the calculation may work out in this  way, does  not,  however, prove that no principle has  been  laid down. Indeed, in all other cases the principle laid down  in the  Act actually produces compensation, however  inadequate it may be said to be in some cases. If a principle has  been laid  down, then the provisions of entry 42 in List III  are amply satisfied and no question of legislative  incompetency can arise. If a principle has been laid down in the Act  but that principle does not in fact produce any compensation  in any  rare case or adequate compensation in some  cases  then the real complaint should be, not that no principle has been laid down but, that the principle laid down does not produce what  may  be  called just compensation.   That  result  may offend against the provisions of article 31 (2) but certain- ly not against entry 42 in List III and in view of  articles 31 (4), 31-A and 31-B the Act cannot be challenged for  non- compliance with article 31 (2).  On the other hand, even  if it is held that no principle has, in fact, been laid down by the Act, as contended, then that fact not only amounts to  a breach  of the provisions of entry 42 in List III  but  also constitues  a  breach of the provisions of  article  31  (2) which  clearly and emphatically requires the law  to  either fix the compensation or lay down the principles on which and the  manner in which the compensation is to be given  and  a breach  of this "provision", call it a provision of  article 31(2)  or one of entry 42 in List III. cannot.  for  reasons already  stated,  be questioned in view of  articles  31(4), 31.A  and 31-B.  It should also be remembered  that  article 31(4): by reason of the words "notwithstanding 984 anything  in this Constitution" occurring therein will  also protect the Act even against the alleged legislative  incom- petency arising out of the noncompliance with all provisions of the Constitution relating to the payment of  compensation or the existence of a public purpose including the  supposed requirement  of  producing actual compensation  said  to  be implicit  in the provisions of entry 42 in List III.  In  my judgment, the Act cannot be called in question on the ground of  legislative  incompetence of the  Bihar  Legislature  to enact it under entry 36 in List II or entry 42 in List III.     What  I  have stated above is sufficient  to  repel  the first ground of attack levelled against the Act by Mr.  P.R. Das.   But  before passing on to the second main  ground  of attack I think it right to deal with a few subsidiary points canvassed before us.     It is said that section 3 of the Act, which is its  main operative  section,  does not contemplate or  authorise  the acquisition of arrears of rent at all, for the  notification under that section only refers to the vesting of the estates or tenures in the State.  It is, however, to be noticed that the  consequence  of issuing that notification is  that  the arrears  of rent including all that are mentioned in  clause (b) of section 4 are also to vest in, and be recoverable by, the State. This vesting of the arrears of rent in the  State necessarily  implies the transfer of the rights of the  pro- prietors  or  tenureholders to the State  and  this  process must, therefore, amount to the acquisition of that right  by the  State. Therefore, in effect, the Act  does  contemplate the acquisition of the arrears of rent by the State.

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   On the authority of a passage in Willis’  Constitutional Law,  p. 816, it is argued that the power of eminent  domain cannot  be  exercised with respect to money  and  choses  in action  besides  certain other unusual  forms  of  property. This passage is founded on certain earlier decisions of  the American  Courts.   It is, however, clear  from  Nichols  on Eminent Domain, Vol. I, p. 99, paragraph 2, and the case  of Cincinnati     985 v.  Louisville & N.R. Co.(1)  cited therein that the  modern view is that the right of eminent domain can be exercised on choses  in action.  In any case, we are t0 consider  whether arrears  of rent are "property" in the sense in  which  that expression is used in our Constitution and understood in our law.   What  are  the arrears of rent but  rents  that  have fallen due but have not been paid ?  It is not at all  money in  the  till of the landlord but it is a debt  due  by  the tenants.  It is, therefore, nothing but an actionable  claim against the tenants which is undoubtedly a species of  "pro. perry"  which is assignable.  Therefore, it can  equally  be acquired  by the State as a species of "property. ’’     It is finally urged that the Act makes no provision  for payment  of compensation for taking this item  of  property. It  is  true  that  in section 24 the  word   "compensation" is   used  in  connection with the taking of the estates  or tenures and also the taking of mines and minerals but not in connection  with the fifty per cent. of the arrears of  rent which  are  directed to be added to the  compensation.   But this provision for adding the fifty per cent. of the arrears also appears in the chapter headed "Assessment of  Compensa- tion" and, therefore, the fifty per cent. of the arrears  is added in the process of the assessment of the  compensation. Further,  why is this fifty per cent. given to the  proprie- tors  or tenure-holders at all unless it were for  compensa- tion  ? It is pointed out that when the State takes  away  a lac  of  rupees and returns 50,000 rupees, it,  in  reality, pays no compensation but by this shift and contrivance  only takes away the other 50,000 rupees for nothing.  This  argu- ment  sounds  plausible at first but is not founded  on  any good principle.  This argument arises only because a  moiety is paid back, as it were, in the same coin. If  compensation for  money were made, say, by giving some land of the  value of a moiety of the money taken, the same argument would  not have been available and all that could be said (1) 223 U.S. 390, 50 L.Ed. 481. 127 986 would have been that the land so given, not being equivalent in value to the money compulsorily taken away, could not  be said  to be a just compensation. That argument, in  view  of articles 31 (4), 31-A and 31-B, would, of course, have  been futile.  But  I see no difference in principle or  law  when compensation for acquisition of arrears is made in money. In such  a  case if only a moiety of the amount of  arrears  is returned  the obvious complaint will be that the  return  of 50,000  rupees  is  not fair or  adequate  compensation  for taking  away Rs. 1,00,000 and that complaint may  have  pre- vailed  had  there been no provision like those we  have  in articles 31(4), 31-A and 31-B. Apart from this, the argument completely  overlooks the fact that the arrears of rent  are not  really  cash in the till of the proprietor  or  tenure- holder  but is only a debt due by the tenants.  What is  the market  value of this book debt ? This debt will have to  be realised, possibly by suit followed by execution proceedings involving  time and money in costs.  Part of it, quite  con- ceivably,  may not be realised at all. Therefore, the  State

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takes the risk of realising or not realising the arrears  of rent  but  irrespective of the results of  its  efforts  for their realisation the fifty per cent. of the arrears is in a lump added to the compensation. This, to my mind,  indicates clearly that compensation is in fact paid for the arrears of rent  and  I am not prepared to say that the  payment  of  a moiety  of the book debts as compensation is so illusory  as to amount to nothing, as contended by Mr. P.R. Das. Even  if it be inadequate, the grievance will be, not that no princi- ple has been laid down in the Act as required by entry 42 in List  III  but,  that the principle so laid  down  does  not produce  adequate  compensation and there is,  therefore,  a contravention  of  the provisions of article  31  (2).  That defect  cannot, however, be made a ground of attack in  view of  articles  31(4),  31-A and 31-B  for  reasons  explained above.     Re  Ground B: The second point urged by Mr. P.R. Das  is that  even if the Court does not accept the argument  as  to the necessity for providing for compensation 987 being  implicit in entry 36 in List II and entry 42 in  List III  and  holds that the respondents are, by reason  of  the provisions of articles 31 (4), 31-A and 31-B, debarred  from questioning  the validity of the Act on the ground  that  it does  not  provide  for compensation  the  respondents  are, nevertheless, entitled to challenge the Act on the ground of the  absence of a public purpose.  That the existence  of  a public purpose is an essential prerequisite to the  exercise of the power of compulsory acquisition has not been disputed by the learned Attorney-General.  The contention put forward on  behalf of the respondents is that the necessity for  the existence  of a public purpose as a condition  precedent  to compulsory acquisition of private property is not a  "provi- sion" of article 31 (2) but is a requirement  of entry 36 in List  II  or entry 42 in List III.  The  words  "for  public purposes" do occur in article31(2) but it is said that there is a distinction between a "provision" and an assumption. It is  urged that article 31(2) assumes a law  authorising  the taking  of possession or the acquisition of property  for  a public  purpose and provides that the property shall not  be taken possession of or acquired even for that public purpose unless  the  law  also provides for  compensation.   It  is, therefore, concluded that the only "provision"  of   article 31 (2) is that the law authorising the taking of  possession or  the acquisition of property  for a public purpose   must provide  for  compensation and it is this  "provision"  only that cannot be made a ground of attack on  the Act by reason of articles 31 (4), 31-A and 31-B of the Constitution.  This argument  has  found favour with Reuben J. and S.K.  Das  J. The  latter learned judge, after referring to a  passage  in his  own judgment in the earlier case of Sir Kameswar  Singh v. The Province of Bihar (1) concludes as follows :--    "Clause  (2),  strictly speaking, does not,  in  express words,  make"  public  purposes" a  condition  precedent  to compulsory acquisition but rather assumes that such acquisi- tion  can be for public purposes only; it does so by  neces- sary implication." (1) A.I.R. 1950 Pat. 392. 988     The  learned Judge then refers to the following  passage in  the  judgment  of my  learned   brotherMukherjea  J.  in Chiranjit  Lal  Choudhury  v. The Union of  India  &  Others (1):__     "Article 31(2) of the Constitution prescribes a  twofold limit  within which such superior right of the State  should

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be  exercised.  One limitation imposed upon the  acquisition or taking possession of private property which is implied in the  clause  is  that such taking away must  be  for  public purpose.   ’the other condition is that no property  can  be taken  unless  the law which authorises  such  appropriation contains  a  provision for payment of  compensation  in  the manner laid down in the clause."  ’     I  do  not, however, see how the above  observations  of Mukherjea  J. in any way support the arguments of  Mr.  P.R. Das  that the existence of a public purpose is not a  provi- sion  of article31 (2) but is an inherent condition  of  any legislation for compulsory acquisition of private  property. It is significant that Mukherjea J. recognises that  article 31(2) "prescribes" a two-fold limit.  Surely, a limit  which is "prescribed" by the articles must be a provision thereof. In  any case, what is implied in the clause must,  neverthe- less,  be  a  provision of the clause,  for  the  expression "provision"  is certainly wide enough to include an  implied as  well as an express provision.  Be that as it may,  I  am prepared to go further and say, for reasons I shall present- ly  explain, that the requirement of a public purpose as  an essential  prerequisite  to compulsory  acquisition  is,  if anything,  essentially  a provision of that  clause  and  an integral part of it.       Article  31 is one of a group of articles included  in Part III of the Constitution under the heading  "Fundamental Rights".   It  confers a fundamental right in so far  as  it protects  private property from State action. Clause (1)  of the  article protects the owner from being deprived  of  his property  save by authority of law.  A Close examination  of the language of clause (1)will (2) [1950] S.C.R. 869. 989 show  that this immunity is a limited one and this  will  at once  be clearly perceived if we convert the  negative  lan- guage of clause (1) into positive language.  In its positive form clause (1) will read :-     "Any person may be deprived of his property by authority of law".     The  only  limitation put upon the State action  is  the requirement that the authority of law is a prerequisite  for the exercise of its power to deprive a person of his proper- ty.   This confers some protection on the owner in  that  he will  not be deprived of his property save by  authority  of law  and this protection is the measure of  the  fundamental right.  It is to emphasise  this immunity from State  action as  a fundamental right that the clause has been  worded  in negative language. Likewise, clause (9.) is worded in  nega- tive  language in order to emphasise the  fundamental  right contained therein. The enunciation of this fundamental right necessarily  requires a statement of the ambit and scope  of the State action and to fix the ambit and scope of the State action  it  is necessary to specify the limitations  on  the State  action, for that limitation alone is the  measure  of the  fundamental  right. Clause (2) of the article,  in  its positive  form, omitting words unnecessary for  our  present purpose, will read as follows:-- "Any Property ..................................may be taken possession  of  or acquired for public purposes  under   any law  authorising  the   taking of such  possession  or  such acquisition  if  the law provides for compensation  for  the property        taken        possession        of         or acquired ........................................"     Put in the above form, the clause makes it clear at once and beyond any shadow of doubt that there are three  limita-

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tions imposed upon the power of the State, namely, (1)  that the taking of possession or acquisition of property must  be for a public purpose, (2) that such taking of possession  or acquisition  must be under a law authorising such taking  of possession or acquisition and (8) that the law must  provide for compensation 990 for the property so taken or acquired.  These three  limita- tions constitute the protection granted to the owner of  the property  and is the measure of his fundamental right  under this clause. Unless these limitations were provisions of the article, the article would have afforded no immunity at all. I am, therefore, clearly of opinion that the existence of  a public  purpose  as a prerequisite to the  exercise  of  the power of compulsory acquisition is an essential and integral part of the "provisions" of clause (2).  If the  requirement of  a public purpose were not a provision of article  31(2), then  it will obviously lead us to the untenable  conclusion that  Parliament  will be free under  its  residuary  powers under  article  248 and entry 97 of List I  of  the  Seventh Schedule to make a law for acquiring private property  with- out  any public purpose at all and to the still more  absurd result  that while Parliament will have to provide for  com- pensation under article 31(2) in a law made by it for acqui- sition of property for a public purpose it will not have  to make any provision for compensation in a law made for acqui- sition of property to be made without a public purpose. Such could  never have been the intention of the framers  of  our Constitution.  The existence of a public purpose as a condi- tion  precedent to the exercise of the power  of  compulsory acquisition being then, as I hold, a "provision" of  article 31  (2), an infringement of such a provision  cannot,  under articles31  (4), 31-A and 3 I-B, be put forward as a  ground for questioning the validity of the Act.     Mr. P.R. Das’s second line of argument on this main head is that the necessity for the existence of a public  purpose is implicit in entry 36 in List II and that the existence of a  public purpose is also a requirement of entry 42 in  List III  which is made a part of entry 36 in List. II by  virtue of the words "subject to" etc., appearing at the end of that entry and his conclusion is that in the absence of a  public purpose the Bihar Legislature had no legislative  competency under  those two entries to enact the impugned Act and  that this ground of attack is still available     991 to  him  notwithstanding the provisions of  articles  31(4), 31-A  and 31-B.  He does not rely on any other part  of  the Constitution  as  insisting  on the existence  of  a  public purpose  as  a prerequisite for  compulsory  acquisition  of private  property.  Entry 36 covers any purpose  except  the purpose  of  the  Union and is  not,  in  terms,limited   to public  purpose.  Secondly,the argument based on  the  words "subject  to" etc. at the end of entry 36 in List  II  which are  supposed to import the provisions of entry 42  in  List III  into  entry 36 in List II is not  well-founded  and  it becomes  obvious when we look at entry 33 in List I.   There are  no words at the end of that entry as "subject to"  etc. and, therefore, the alleged requirement of a public  purpose under entry 42 in List III cannot be said to be incorporated in entry 33 in List III would, therefore, follow that where- as  under entry36 in List II which is to be read with  entry 42  in List III by reason of the words "subject to" etc.  in entry 36 in List II the Legislature of a State can only make a  law for compulsory acquisition of property for  a  public purpose, Parliament may, under entry 33 in List I which does

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not attract entry 42 in List Iii, make a law for  compulsory acquisition  of property without a public purpose.   Such  a result  could never have been intended by the  Constitution. Besides, turning to entry 42 in List III, I find nothing  in support of Mr. P.R. Das’s contention. The words "acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose" in that entry are merely words descriptive  of the preceding word "property".  The  matters comprised  in entry 42 in List III, as a  legislative  head, are the principles for the determination of compensation and the form and manner of giving the compensation for  property which is described as  having  been  acquired  or   requisi- tioned  for the stated purposes.  That entry cannot possibly be  regarded  as  a  legislative  head  for  acquisition  of property  and  much less is the purpose or province of  that entry  to lay down any requirement of a public purpose as  a condition precedent for the 992 acquisition of any property.  In my opinion entry 42 in List III is of no assistance to Mr. P.R. Das for this part of his argument.   Further, the reasons for which I have  discarded his arguments as to the obligation to provide for  compensa- tion being implied in entry 36 in List 11 by itself or  read with entry 42 in List III will also apply to this contention mutatis mutandis and they need not be restated here.  To put it shortly, the provisions of article31(2) which, as I  have explained,  require the existence of a public purpose,  will exclude  the implication sought to be read into entry 36  in List  11 and entry 42 in List III.  Secondly, what  articles 31(4),  31-A and 31-B exclude is a challenge to the  Act  on the  ground  of contravention of the "provision"  of  clause (2).   If the "provision" of clause (2) of article 31 as  to the  necessity  for the existence of a public purpose  as  a prerequisite  to compulsory acquisition of property is  also to be regarded as implicit in those two legislative entries, surely  articles  31 (4), 31-A and 31-B  and  in  particular article31(4)  which  contain  the  words   "nothwithstanding anything  in  this Constitution" will protect the  Act  from such  implied  provision, for reasons I  have  already   ex- plained.  Mr. P.R. Das’s second main point must  accordingly be rejected as untenable.     Assuming  that  the  necessity for the  existence  of  a public purpose is not a provision of article 31(2) but is  a provision only of entry 36 in List 11 and/or of entry 42  in List  III  and that consequently articles 31 (4),  31-A  and 31-B  do not preclude the respondents from  challenging  the validity of the Act on the ground of the legislative  incom- petency arising out of the absence of a public purpose,  the question  still  remains whether there is in fact  a  public purpose  within the meaning of our Constitution  to  support the Act.  It is to be noted that there is no recital of  any public  purpose in the Act itself, but it is  conceded  that this  circumstance is not fatal to the validity of the  Act. It is, however, urged that this circumstance,  nevertheless, shows  that the Legislature had, at the time of the  passing of the Act, no public purpose in its view.  It is claimed 993 that,  apart from the absence of any such recital, there  is no  indication  whatever as to the existence of  any  public purpose in any of the operative provisions  of  the Act.  It is  not disputed that as a result of this enactment  a  very large sum of money now payable by the tenants as and by  way of  current  rent and arrears of rent  to  their  respective landlords will be intercepted by the State but it is  urged, on  the authority of certain passages in Cooley’s  Constitu-

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tional Limitations, 8th Edn., Vol. II, p. 1118 (Footnote  1) and  in Professor Willis’ Constitutional Law, p.  817,  that the  exercise of the power of taxation and not that  of  the power of eminent domain is the legitimate means for swelling the  public revenue. That the Act has no public  purpose  to support  it  is sought to be established by saying  that  in Bihar the recorded proprietors are about 13,35,919 in number and  that assuming that there are four persons in a  family, nearly  five and a half million people will be ruined  as  a result  of this legislation, although the actual tillers  of the soil will derive no benefit whatever therefrom, for they will  remain  where they are and will have to  continue,  as heretofore,  to pay their rent, instead of to their  present landlords, to the State which, they will find, is no  better than a ruthless machine unsusceptible to any humane feeling. The contention is that the public purpose must be  something definite,  something  tangible and something  immediate  and that  there must be some indication of its existence in  the Act  itself and that the State cannot take private  property to-day  and say that it will think of the public purpose  at its leisure.  This leads me to a consideration of what is  a public purpose within the meaning of our Constitution.     We  have been referred to some American authorities  for ascertaining the meaning and implication of "public use", an expression which obviously is of a more limited import  than the  expression "public purpose" used in  our  Constitution. Apart from this, a perusal of the text books, e.g.,  Consti- tutional  Law  by  Professor Willis, p. 817  et  seq.,  will immediately make it clear 128 994 that  the  notion as to what is a "public  use"  is  rapidly changing  in America.  Formerly "public use" meant a use  by the public.  According to the modern view "public use" means useful to the public. The passage in Cooley’s Constitutional Limitations,  Vol. II, pp. 1139-40 quoted by S.K. Das J.  of the Patna High Court summarises the position thus :--     "No satisfactory definition of the term" public use" has ever  been achieved by the Courts.  Two  different  theories are  presented  by  the judicial attempts  to  describe  the subjects to which the expression would apply. One theory  of "public use" limits the application to  "employment"--"occu- pation".  A more liberal and more flexible meaning makes  it synonymous  with  "public advantage",  "public  benefit".  A little investigation will show that any definition attempted would exclude some subjects that properly should be included in,  and include some subjects that must be  excluded  from, the  operation of the words "public use".  As might  be  ex- pected,  the more limited application of the  principle  ap- pears in the earlier cases, and the more liberal application has  been  rendered necessary by complex conditions  due  to recent  developments  of  civilization  and  the  increasing density  of  population.  In the very nature  of  the  case, modern conditions and the increasing inter-dependence of the different  human factors in the progressive complexity of  a community make it necessary for the Government to touch upon and limit individual activities at more points than  former- ly".    To  the like effect are the following observations to  be found  in Corpus Juris, Vol. XX, article 39, at pp. 552  and 553 under the caption "What is a public use" :--     "No  general definition of what degrees of  public  good will meet the constitutional requirements for a "public use" can  be framed, as it is in every case a question of  public policy.   The  meaning of the term is flexible  and  is  not

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confined  to what may constitute a public use at  any  given time, but in general it may be said to cover 995 a use affecting the public generally, or any number thereof, as  distinguished from particular individuals.  Some  Courts have gone so far in the direction of a liberal  construction as  to  hold that "public use" is  synonymous  with  "public benefit",  "public utility", or  "public   advantage",   and to  authorise the exercise of the power of eminent domain to promote   such public  benefit,  etc., especially where  the interests  involved are of considerable magnitude,  and   it is  sought  to  use  the power in order  that  the   natural resources  and  advantages  of a locality  may  receive  the fullest development in view of the general welfare".     The  learned  author thereupon proceeds to  discuss  the more  restricted meaning given to that expression. Mr.  P.R. Das has drawn our attention to the decision of the  Judicial Committee in Hamabai Framjee Petit v. Secretary of State for India(1).   It  should be borne in mind  that  the  Judicial Committee  in that case had to consider the meaning  of  the words  "public  purposes" occurring in a lease of  the  19th century.   Even  in  1914  the Judicial  Committee  did  not think fit to attempt a precise definition of the  expression "public purpose" and was content to quote with approval  the following passage from the judgment of Batchclor J.:-     "General definitions are, I think, rather to be  avoided where  the avoidance is possible, and I make no  attempt  to define precisely the extent of the phrase ’public  purposes’ in  the lease; it is enough to say that, in my opinion,  the phrase,  whatever else it may mean, must include a  purpose, that is, an object or aim, in which the general interest  of the  community,  as opposed ’to the particular  interest  of individuals, is directly and vitally concerned".     And it is well that no hard and fast definition was laid down,  for the concept of" public purpose" has been  rapidly changing in all countries of the world. The reference in the above quotation to "the general (1) (1915) L.R. 42 I.A. 44. 996 interest of the community", however, clearly indicates  that it is the presence of this element in an object or aim which transforms such object or aim into a public purpose.     From what I have stated so far it follows that  whatever furthers  the general interests of the community as  opposed to the particular interest of the individual must be regard- ed  as a public purpose. With the onward march of  civiliza- tion our notions as to the scope of the general interest  of the community are fast changing and widening with the result that  our Old   and narrower notions as to the  sanctity  of the  private interest of the individual can no  longer  stem the  forward flowing tide of time and must necessarily  give way  to the broader notions of the general interest  of  the community. The emphasis is unmistakably shifting  from   the individual  to  the community. This modern  trend   in   the social and  political philosophy is well reflected and given expression  to in our Constitution.  Our Constitution, as  I understand it, has not ignored the individual but has endea- voured  to harmonise the individual interest with the  para- mount interest of the community. As I explained in Gopalan’s case  (1)  and  again in Chiranjit Lal’s  case  (supra)  our Constitution protects the freedom of the citizen by  article 19(I)(a). to (e) and (g) but empowers the State, even  while those  freedoms last, to impose reasonable  restrictions  on them  in  ’the interest of the State or of public  order  or morality  or of the general public as mentioned  in  clauses

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(2) to (6).  Further, the moment even this regulated freedom of  the individual becomes incompatible with  and  threatens the  freedom  of the community the State is given  power  by article  21, to deprive the individual of his life and  per- sonal  liberty in accordance with procedure  established  by law,  subject, of course, to the provisions of  article  22. Likewise, our Constitution gives protection to the right  of private  property by article 19 (1) (f) not  absolutely  but subject  to reasonable restrictions to be imposed by law  in the interest of the general public (1) [1950] S.C.R. 88. 997 under clause (5) and, what is more important as soon as  the interest of the community so requires, the State may,  under article  31, deprive the owner of his property by  authority of law subject to payment of compensation if the deprivation is  by way of acquisition or requisition of the property  by the  State.   It is thus quite clear that  a  fresh  outlook which places the general interest of the community above the interest  of  the  individual  pervades  our   Constitution. Indeed,  what  sounded like idealistic slogans only  in  the recent  past are now enshrined in the glorious  preamble  to our  Constitution  proclaiming  the solemn  resolve  of  the people  of this country to secure to all  citizens  justice, social,  economic and political, and equality of status  and of opportunity.  What  were regarded  only yesterday, so  to say, as fantastic formulae have now been accepted as  direc- tive principles of State policy prominently set out in  Part IV  of the Constitution. The ideal We have set before us  in article 38 is to evolve a State which must constantly strive to promote the welfare of the people by securing and  making as effectively as it may be a social order in which  social, economic and political justice shall inform all the institu- tions  of the national life. Under article 39 the  State  is enjoined to direct its policy towards securing, inter  alia, that the ownership and control of the material resources  of the  community are so distributed as to subserve the  common good and that the operation of the economic system does  not result  in the concentration of wealth and means of  produc- tion  to the common detriment.  The words "public  purposes" used  in article 23 (2) indicate that the Constitution  uses those  words in a very large sense. In the neverending  race the law must keep pace with the realities of the social  and political  evolution  of  the country as  reflected  in  the Constitution.  If, therefore, the State is to give effect to these avowed purposes of our Constitution we must regard  as a public purpose all that will be calculated to promote  the welfare of the people as envisaged in these directive  prin- ciples  of  State policy whatever else that  expression  may mean. In 998 the light of this new outlook what, I ask, is the purpose of the  State in adopting measures for the acquisition  of  the zamindaries and the interests of the intermediaries ?  Sure- ly, it is to subserve the common good by bringing the  land, which  feeds  and sustains the community and  also  produces wealth  by  its forest, mineral and other  resources,  under State ownership or control. This State ownership or  control over land is a necessary preliminary step towards the imple- mentation of the directive principles of State policy and it cannot but be a public purpose. It cannot be overlooked that the  directive principles set forth in Part IV of  Constitu- tion  are not merely the policy of any particular  political party but are intended to be principles fixed by the Consti- tution   for directing the State policy whatever  party  may

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come  into power. Further, it must always be borne  in  mind that the object of the impugned Act is not to authorise  the stray acquisition of a particular propery for a limited  and narrow  public purpose but that its purpose is to bring  the bulk of the land  producing wealth under State ownership  or control by the abolition of the system of land tenure  which has been found to be archaic and non-conducive to the gener- al  interest of the community.  The Act also sets up a  Land Commission  to  advise the State Government  generally  with regard  to  the agrarian policy  which it may from  time  to time follow. It is impossible to say that there is no public purpose to support the Act.  This very Bihar Act was  before the  Constituent Assembly when it passed article 31 (4)  and again when it took the trouble of amending the  Constitution for  saving this very Act.  Would the  Constituent  Assembly have  thought fit to protect these Acts unless it were  con- vinced  that this Act was necessary in the general  interest of the community ? I find myself in agreement with Reuben J. and S.K. Das J. that these circumstances also clearly  indi- cate that the Constituent Assembly regarded this Act as well supported by a public purpose.  To put a narrow construction on the expression "public purpose" will, to my mind, be to     999 defeat  the  general  purpose of our  Constitution  and  the particular and  immediate purpose of the recent  amendments. We  must not read a measure implementing our   mid-twentieth century   Constitution through spectacles tinted with  early nineteenth century notions as to the sanctity or inviolabil- ity of individual rights.  I, therefore, agree with the High Court  that the impugned Act was enacted for a  public  pur- pose.     Mr.  P.R. Das then puts up a narrow argument.  Assuming, says he, that, there is in the Act a general public  purpose for compulsory acquisition of zamindaries and tenures, there cannot  conceivably be any public purpose in support of  the Act in so far as it authorises the taking of the arrears  of rent  or  the taking away of 4 to 12 1/2 per  cent.  of  the gross  assets on the specious  plea that the landlords  must be supposed to spend that percentage of their  gross  income on works of benefit to the rayats of the estates and, there- fore, that part of the Act is beyond the legislative  compe- tence  of the Bihar Legislature. I regard this  argument  as unsound  for more reasons than one.  In the first place  the existence of a public purpose being, as I hold, a  provision of  article 31 (2), its absence, if any, in relation to  the arrears of rent cannot, by reason of articles  31 (4),  31-A and 31-B be made a ground of attack against the  Act.Second- ly,  it is an entirely wrong   approach to pick out an  item out  of  a scheme of land reforms and say that item  is  not supported  by  a public purpose.  One may just as  well  say that  there is no public purpose in the acquisition of  for- ests or of mines and particularly of undeveloped mines,  for such  acquisition  has no bearing on a  scheme  of  agrarian reforms in that it does not improve or affect the conditions of  the tillers of the surface of the soil.  This, I  appre- hend, is not the right way of looking at things.  The proper approach  is to take the scheme as a whole and than  examine whether the entire scheme of acquisition is  for  a   public purpose.   Thirdly,  I do not regard the deduction of  4  to 121/2  per  cent.  of the gross assets  as  acquisition   or confiscation 1000 at all, but I regard it, for reasons stated above, as a part of  a principle laid  down  by  the Act for the  purpose  of determining the amount of compensation as required by  arti-

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cle 31 (2) and entry 42 in List III.  Finally, I do not  see why  the taking over of the arrears of rent, in the  context of  the  acquisition  of zamindaries, is not  for  a  public purpose. As I have said, the acquisition of zamindaries  and tenures is a scheme for bringing about agrarian reforms  and ameliorating the conditions of the tenants.  The object  is, inter  alia,  to  bring the tillers of the  soil  in  direct contact with the States so as to free them from the clutches of  rapacious landlords and make them the masters  of  their holdings  subject to payments of the dues to the State.   It is  well-known that the bulk of the tenants are  in  arrears with  their  rents and once the rents fall into  arrear  the tenants  find  it difficult to pay the  current  rent  after liquidating  a part of the arrears so that while they  clear part of the old arrears the current rent falls into  arrear. According  to  annexure B (2) to-the affidavit  of  Lakshman Nidhi  affirmed  on January 22, 1951, the  total  amount  of Raiyati rent payable by the various tenants in the different circles  of  the Darbhanga Estate alone will  exceed  rupees three lacs. It is not quite clear whether all these  arrears are due from the actual rayats in the sense of actual  till- ers of the soil.  But leaving out from consideration for the present  purposes  the arrears of rent due  by  the  tenure- holders  to their immediate superior tenureholder or to  the zamindar it can safely be taken that the bulk,  if not  all, of the  actual  rayats or tillers of the soil are habitually and  perpetually in arrear with  the  rent  of their   hold- ings   on  account of financial  stringency  resulting  from their  chronic indebtedness.  In these circumstances if  the zamindaries and the tenures only are acquired under the  Act leaving the zamindars and the tenure-holders free to realise the  huge  arrears  of rent due by  the  actual  cultivating tenants  by legal process it will eventually result  in  the sale of the holdings of the actual tenants or, at any  rate, of their right, title and     1001 interest  therein and the possible purchase thereof  by  the zamindars  or  tenure-holders themselves at Court  sales  in execution  of  decrees or by private sales forced  upon  the tenants.  The  bulk of the actual tillers of the  soil  will then become landless labourers and the entire scheme of land reforms envisaged in the Act will be rendered wholly nugato- ry.   If the acquisition of the zamindaries and the  tenures is,  as  I hold, dictated or inspired by  the  sound  public purpose  of ameliorating the economic and  political  condi- tions  of the actual tenants, the self same  public  purpose may  well require the acquisition of the arrears of rent  so as  to avert the undesirable but inevitable  consequences  I have  mentioned.   The Bihar Legislature  obviously  thought that the tenants in arrears will have better treatment and a more reasonable accommodation, in the matter of the liquida- tion  of  the-huge arrears, from the State  which  will  act uNder  the  guidance of the Land Commission  than  from  the expropriated  landlords  whose sole  surviving  interest  in their  erstwhile tenants will only be to realise as much  of the  arrears  as they can from the tenants  and  within  the shortest  possible time without any mercy or  accommodation, The  same  remarks apply to the acquisition of  decrees  for arrears of rent. The overriding public purpose of ameliorat- ing  the conditions of the cultivating rayats may well  have induced the Legislature to treat the arrears of rent and the decrees  for rent differently from the other ordinary  move- able  properties of the zamindars or  tenure-holders,  e.g., their  money  in the bank or their jewellery  or   ornaments with   which the  rayats have no concern and to provide  for

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the  acquisition  of the arrears and the  decrees.   In  the premises,  the second  main ground  of  attack  levelled  by Mr.  P.R.  Das  against the Act must  be  rejected.  I   am, however,   free  to confess that if I could agree  with  Mr. P.R. Das that these  provisions of the impugned Act are  bad for  want of a public purpose, I am not at all sure  that  I would  not have found it extremely difficult to  resist  his further argument that the entire Act was bad, for it might 1002 not have been very easy to presume that if the Bihar  Legis- lature  had known that these provisions of the Act might  be held  bad it would nevertheless have passed the other  parts of  the Act in that truncated form.  The acquisition of  the arrears of rent appears to me to be an integral part of  the scheme and inextricably interwoven with it.  Indeed, it  may well  have been that the scheme of agrarian reform  was  not considered by the Bihar Legislature to be at all capable  of easy implementation by the State without the acquisition  of the arrears of rent. As, however, I have taken the view that no part of the Act is bad for want    of a public purpose, I need not pursue any further the question of the severability of  the Act or to refer to the judicial decisions relied  on by learned counsel on both sides.     Ground  C:  Mr. P.R. Das’s third point is that  the  Act constitutes  a  fraud on the Constitution, that is  to  say, while it purports to be in conformity with the Constitution, it,  in  effect,  constitutes a defiance of  it.   The  Act, according to him, pretends to comply with the constitutional requirements in that it sets out to lay down certain princi- ples on which compensation is to be determined and the  form and  the  manner in which such compensation is to  be  given but,  in effect, makes out a scheme for non-payment of  com- pensation. The Act, he urges, purports to pay back fifty per cent. of the arrears of rent as compensation but in  reality confiscates the other fifty per cent. without any  compensa- tion.   Further, under the guise of deducting 4 to  121  1/2 per cent of the gross income the State is in reality  appro- priating  a  large sum under this head.  All this,  he  con- cludes, is nothing but pretence or a mere shift and  contri- vance  for  confiscating private  property.   The  argument, when   properly understood, will be found to resolve  itself into  an attack on the legislative competency of  the  Bihar Legislature  to  pass  this Act.  On  ultimate  analysis  it amounts to nothing more than saying that while pretending to give  compensation  the  Act does not really give it.  It is the absence of a provision 1003 for  just   and  adequate compensation that makes  the   Act bad,   because, according to Mr. P.R.Das,  the   legislative power  under  entry 36 in List II and entry 42 in  List  III requires  the  making of such a provision.  The  failure  to comply  with this constitutional condition for the  exercise of legislative power may be overt or it may be covert.  When it is overt, we say the law is obviously bad for non-compli- ance  with the requirements of the Constitution, that is  to say, the law is ultra vires.  When, however, the  noncompli- ance  is covert, we say that it is a fraud on the  Constitu- tion,  the  fraud complained of being that  the  Legislature pretends to act within its power while in fact it is not  so doing.   Therefore, the charge of fraud on the  Constitution is,  on  ultimate analysis, nothing but  a  picturesque  and epigrammatic  way of expressing the idea  of  non-compliance with  the  terms of the Constitution. Take the case  of  the acquisition  of  the arrears of rent. It is  said  that  the provision in the Act for the acquisition of arrears of  rent

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is  a fraud on the legislative power given by the  Constitu- tion.  I ask myself as to why must it be characterised as  a fraud?  I find nothing in the Constitution which  says  that the  arrears  of rent must not be acquired  and.  therefore, there  is no necessity for any covert attempt to do what  is not prohibited. I have already explained that in a scheme of land reforms such as is envisaged in the Act the acquisition of  the arrears of rent may properly accompany the  acquisi- tion  of the zamindaries and the tenures. Where. then,  does this  theory of fraud come in ?  The answer must  eventually be that a moiety of arrears are taken away without compensa- tion.  Again,  take the case of the acquisition  of  non-in- come-yielding  properties. Why, I ask, is it called a  fraud on the Constitution to take such property ? Does the Consti- tution prohibit the acquisition of such property ?  Obvious- ly it does not.  Where, then, is the fraud? The answer  that comes  to my mind is that it is fraud because the  Act  pro- vides  for  compensation only on the basis  of  income  and, therefore,  properties   which  are at  present  non-income- yielding but  which  have  very  rich 1004 potentialities are acquired without any compensation at all. Similar  answer  becomes  obvious  in  connection  with  the deduction of 4 to 12 1/2 per cent. of the gross assets under the  head  "Works of Benefit to the  Rayats".   On  ultimate analysis,  therefore,  the  Act is really  attacked  on  the ground that it fails to do what is required by  the  Consti- tution  to do, namely, to provide for compensation  for  the acquisition  of  the  properties and  is,  therefore,  ultra rites.   This,  to my mind, is the same argument as  to  the absence  of  just compensation in a different form  and  ex- pressed  in a picturesque and attractive language.   I  have already  dealt  with the question of absence of a  provision for  just  compensation while dealing with  Mr.  P.R.  Das’s first point and I repeat that the obligation to provide  for compensation  is  not  implicit in entry 36 in  List  II  by itself or read with entry 42 in List III but is to be  found only in article 31 (2), that under entry 42 in List III  the Act  has laid down a principle for determining  compensation and,  therefore, there can be no question as to  legislative incompetency  for any alleged non-compliance with  any  sup- posed  requirement said to be implicit in these entries.  If the  principles so laid down in the Act do not in  any  rare case  produce  any compensation or do not  produce  adequate compensation in some cases, such absence of compensation may be  a contravention of article 31 (2) but  in view of  arti- cles 31 (4), 31-A and 31-B and particularly due to the words "notwithstanding anything in this Constitution" occurring in article  31 (4) it cannot be made a ground of attack on  the Act,  even though such ground is formulated in  a  different but attractive language, namely, as a fraud on the Constitu- tion.  Accordingly,  this point must also be  rejected.   I, however,  repeat  that ii I took a different  view  I  would still  have the same difficulty as to the inseverability  of the different provisions  of the  Act as  I  have  hereinbe- fore indicated.       Re. Ground D: Mr. P.R. Das’s fourth point is that  the Act is unenforceable in that section 32 (2) 1005 provides for compensation in forty equal instalments without specifying  the period of interval between the  instalments. In  course of arguments, however, Mr. P. R. Das has  thought fit  not  to press this point and accordingly  it  does  not require any refutation.     Re. Ground E: Mr. P.R. Das’s last main point is that the

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Act  has  delegated essential  legislative functions to  the Executive  Government  and is, therefore, invalid.   Article 31 (2) requires that the law authorising the taking  posses- sion  or the acquisition of land for public  purpose  should provide  for compensation for the property taken  possession of  or acquired and should either fix the amount or  specify the principles on which, and the manner in which the compen- sation  is to be determined and given. Entry 42 in List  III talks  of principles on which compensation is to  be  deter- mined and the form and the manner in which such compensation is  to be given. The argument is that the  Constitution  has left  to  Parliament or the State Legislature  the  duty  of specifying the principles on which, and the form and  manner in which the compensation is to be determined and given  but the Bihar Legislature by sections (22)of the Act has  simply provided  that the amount of compensation shall be  paid  in cash  or in bonds or partly in cash and partly in bonds  and that the bonds shall be either negotiable or  non-negotiable and  non-transferable and be payable in forty equal  instal- ments  and has not laid down any decisive provision but  has left the matter to the State Government to decide.  It  has, therefore, failed to discharge the duty which was  expressly left  to its knowledge, wisdom and patriotism. Mr. P.R.  Das complains that the Legislature has shirked its responsibili- ty  and  delegated this essential legislative power  to  the State Government to be exercised under rules made by  itself under  its rulemaking power under section 43 (2)  (p).   The question of the propriety and legality of the delegation  of legislative power has recently been considered by this Court in In re The Delhi Laws Act, 1912 etc.(1).  If I (1) [1951] S.C.R. 747. 1006 were to deal with this matter according to my own notions, I would  have dismissed this argument in limine, for here  the Legislature has not abdicated or effaced itself in the sense I have explained in my opinion in that case.  When I look at the matter on the basis of the principles laid down in  that case  by the late Chief Justice and my learned  brothers  to which  Mr.  P.R. Das has referred, I have  to  overrule  his contention all the same.  Here section 32 clearly  indicates that the Legislature has applied its mind to the problem and it has laid down the principle that the compensation may  be paid  in  cash or in bonds or partly in cash and  partly  in bonds  and that ii a payment is to be made either wholly  or partly in bonds, these  bonds  may be  either negotiable  or non-negotiable  and non-transferable.  Having laid down  the principle, the Legislature has, by a rule made under section 43  (3) (p), left it to the Executive to determine the  pro- portion  in  which  the compensation  shall be  payable   in cash and-in bonds  and the manner of such payment of compen- sation.   These  details,  it will be  observed,  depend  on special  circumstances, e.g., the extent of the ability,  of Government  to  pay, the extent of the  necessities  of  the proprietors  and many other considerations, with  which  the Executive  Government would be more familiar than the Legis- lature itself.  I am unable to accept Mr. P.R. Das’s conten- tion  that  this  amounts to a delegation  of  an  essential legislative  function within the meaning of the decision  of my learned brothers.     Mr.  Sanjiva Chowdhuri has urged that the Land  Acquisi- tion Act, 1894 being continued by the Constitution and  that Act which is a Central Act having been extended by notifica- tion  in  1899 to Ramgarh State for which  he  appears,  the Central Act must apply to Ramgarh until the notification  is withdrawn and the impugned Act cannot apply for  determining

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the  compensation, for the field is already occupied by  the Central  Act of 1894.  It may, however, be noticed that  the provision for compensation in that Act 1007 applies  only to lands acquired under that Act.  It  has  no application  to  lands acquired under  other  statutes  and, therefore, the provision for compensation of the Land Acqui- sition Act cannot apply to acquisitions under the Bihar  Act and,  therefore,the doctrine of occupied field can  have  no application.   In my opinion there is no substance  in  this contention. For reasons stated above, I allow these appeals.     CHANDRASEKHARA AIYAR J.--The facts which have given rise to these cases have been fully set out in the judgment  just now delivered by my learned brother Mahajan J. and need  not be  repeated.  The conclusions reached by him and  Mukherjea J.  have my concurrence.  Ordinarily, I would  have  stopped with  the expression of my agreement, but having  regard  to the  importance  of the question argued and the  stakes  in- volved, I desire to add a few words of my own on some of the points discussed.     Article  31 (1) of our Constitution provides "No  person shall be deprived of his property save by authority of law".   There are three modes of deprivation--(a)  destruction,(b) acquisition and (c) requisition.  Destruction may take place in  the  interests  of public health or  the  prevention  of danger  to  life or property but with this we  are  not  now concerned. In the case of "acquisition", there is an element of permanency, and in the case of "requisition" there is  an element of temporariness. Except for this distinction,  both modes stand on the same footing, as regards the  rights   of the State vis-a-vis the rights of the private citizens.     Under  the Constitution, when property is  requisitioned or  acquired, it may be for a Union purpose or a State  pur- pose,  or for any other public purpose. Entry 33 in  List  I (Union  List)  of the Seventh Schedule to  the  Constitution speaks of acquisition or requisitioning of property for  the purposes of the Union.  When we come to entry 42 of List 111 (Concurrent List), we find these words: "Principles on which compensation for property acquired or requisitioned for  the purposes 1008 of  the Union or of a State or for any other public  purpose is  to be determined, and the form and the manner  in  which such compensation is to be given."     From  very early times, law has recognized the right  of Government  compulsorily  to acquire private  properties  of individuals  for  a public purpose and this has come  to  be known as the law of eminent domain. But it is a principle of universal law that the acquisition can only be on payment of just  compensation. Story on the Constitution, Vol. 2,  page 534, paragraph 1790, has the following passage in discussing the concluding clause of the Fifth Amendment of the American Constitution:     "The  concluding clause is that private  property  shall not be taken for public use without just compensation.  This is  an  affirmance of a great doctrine  established  by  the common  law for the protection of private property.   It  is founded in natural equity, and is laid down by jurists as  a principle of universal law.  Indeed, in a free   government, almost   all other  rights would become utterly   worthless, if the Government possessed an uncontrollable power over the private  fortune of every citizen.  One of  the  fundamental objects of every good government must be the due administra- tion of justice;  and how vain it would be to speak of  such

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an administration, when all property is subject to the  will or caprice of the legislature and the rulers."     The  payment of compensation is an essential element  of the valid exercise of the power to take. In the leading case of Attorney-General v. De Keyser’s Royal Hotel, Ltd (1) Lord Dunedin spoke of the payment of compensation as a  necessary concomitant  to the taking of property. Bowen L.J.  said  in London and North Western Ry. Co. v. Evans (2):’     "The Legislature cannot fairly be supposed to intend. in the absence of clear words showing such intention, that  one man’s  property  shall  be confiscated for  the  benefit  of others, or of the public. without any (1) [1920] A.C.p. 508.       (2) [1893] I Ch. pp. 16 & 28. 1009 compensation  being provided for him in respect of  what  is taken compulsorily from him.  Parliament in its  omnipotence can, of course. override or disregard this ordinary  princi- ple   ......  if it sees fit to do so, but it is not  likely that it will be found disregarding it, without plain expres- sions of such a purpose ."     This  principle is embodied in article 31(2)of our  Con- stitution in these terms :-     No property, movable or immovable, including any  inter- est  in, or in any company owning, any commercial or  indus- trial undertaking, shall be taken possession of or  acquired for public purposes under any law authorising the taking  of such possession or such acquisition, unless the law provides for  compensation  for the property taken possession  of  or acquired  and either fixes the amount of  the  compensation, or  specifies  the principles on which, and  the  manner  in which,’ the compensation is to be determined and given."     We shall not here trouble ourselves with sub-clauses (3) and (4) of the article and with articles 31-A and 31-B which were  introduced by way of amendment under the  Constitution First  Amendment Act, 1951, dated 18-6-1951.  They  will  be considered later.     The  argument of Shri P.R. Das that the payment of  com- pensation  is  a concomitant obligation  to  the  compulsory acquisition  of properties by the State can be  accepted  as sound; but when he went further and urged that it was  found in  an implicit form in entry 42 of the Concurrent List,  he was  by  no means on sure ground.  The entries give  us  the bare  heads of legislation.  For ascertaining the  scope  or extent  or ambit of the legislation and the rights  and  the duties  created  thereby, we must  examine  the  legislation itself  or must have resort  to general and  well-recognized principles of law of jurisprudence.  No resort can be had to anything  implicit or hidden when the statute makes  an  ex- press  provision on the same subject.  As just  compensation has  to be paid when property is acquired for a public  pur- pose, the legislation has to 1010 formulate  the principles for determining  the  compensation and  the  form and the manner in which it is  to  be  given. Entry  42 means nothing more than a power conferred  on  the Legislature for achieving this end.  The power is  conferred but there is no duty cast to provide for compensation.   For any statement that the payment of compensation is a  primary condition for acquisition of property for a public  purpose, we have to look at the provisions of the Constitution itself and  this we find in article 31 (2)as stated  already.   Mr. Das was obliged to take up the untenable position that entry 42  of its own force implies an obligation to pay  compensa- tion, as he couldnot otherwise jump over the hurdles created in his way by sub-sections (3) and (4) of article 31 and the

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new articles 31-A and 31-B.     The  learned Attorney-General contended in dealing  with entry  42 that legislation under entry 42 can also lay  down principles  that would lead to the non-payment  of any  com- pensation  and   he   cited  Atiqa Begurn’s  case(1)  as  an authority in his support. This contention appears to  me  to be  as unsound as Mr. Das’s argument that the obligation  to pay  or give compensation wasimplicit in the said entry.  As there can be no acquisition without compensation, the  terms of entry 42enable the legislature to lay down the principles and  provide  further for the form and manner of payment. If the principles are so formulated as to result in non-payment altogether,  then the legislature would be evading  the  law not only covertly but flagrantly. There is nothing in  Atiqa Begum’s case that supports the argument.  It was there  held that under the head "payment of rent" there could be  legis- lation providing for remission of rent.  Payment of rent  is not  a legal obligation of every tenureand  the  legislature can  enact  that under certain circumstances  or  conditions there  shall be remission of rent. But as regards  compensa- tion for State acquisition, its payment is a primary  requi- site  universally recognized by law.  This is the  essential distinction to remember (1) [1940] F.C.R, 110. 1011 when  we  seek to apply the case quoted. The last  words  in entry 42 "form and the manner in which such compensation  is to  be given" clearly mean that the  principles  determining compensation  must  lead to the giving or  payment  of  some compensation.   To  negate compensation  altogether  by  the enunciation of principles leading to such a result would  be to contradict the very terms of the entry and such a meaning could not be attributed to the framers of the Lists.     This,  however,  does not carry Shri P.R.  Das  anywhere near success. Article 31(4) is the first stumbling block  in his way.  It provides :--     "If any Bill pending at the commencement of this Consti- tution in the Legislature of a State has, after it has  been passed by such Legislature, been reserved for ,.he consider- ation  of the President and has received his  assent,  then, notwithstanding  anything in this Constitution, the  law  so assented to shall not be called in question in any court  on the  ground  that it contravenes the  provisions  of  clause (2)."     The  Bill  which  subsequently became  "The  Bihar  Land Reforms  Act, 1950" was pending at the commencement  of  the Constitution  in the legislature of the State, and after  it was  passed  by  the legislature, it was  reserved  for  the consideration  of  the President and  received  his  assent. Therefore the bar that it shall not be called in question in any  court on the ground that it contravenes the  provisions of clause (2) becomes applicable. True, compensation has  to be provided for, by reason of sub-clause (2) of the article, but sub-clause (4) postulates an exception and the right  to challenge  the  validity of the Act on the  ground  that  no compensation has been provided for or that the  compensation is  really illusory or inadequate is taken away. As if  this were  not enough, two more stiles have been erected  in  his way  and they are the new articles 31-A and 31-B brought  in by  way  of amendment. Article 31-A, sub-clause  (1)  is  in these terms :--     "Notwithstanding  anything  in the foregoing provisions. of this Part, no law providing for the 1012 acquisition  by  the State of any estate or  of  any  rights

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therein  or  for the extinguishment or modification  of  any such rights shall be deemed to be void on the ground that it is  inconsistent with, or takes away or abridges any of  the rights conferred by any provisions of this Part:     Provided that where such law is a law made by the Legis- lature of a State, the provisions of this article shall  not apply thereto unless such law, having been reserved for  the consideration of the President, has received his assent. Article 31-B provides : "Validation  of  certain  Acts  and  Regulations  :--Without prejudice  to the generality of the provisions contained  in article  31-A none of the Acts and Regulations specified  in the  Ninth Schedule nor any of the provisions thereof  shall be  deemed to be void, or even to have become void,  on  the ground that such Act, Regulation or provision is  inconsist- ent  with, or takes away or abridges any of the rights  con- ferred by, any provisions of this Part, and  notwithstanding any  judgment, decree or order of any court or  tribunal  to the  contrary each of the said Acts and  Regulations  shall, subject to the power of any competent Legislature to  repeal or amend it, continue in force."     When we look at the Ninth Schedule to the Amending  Act, the  very  first item mentioned is "The Bihar  Land  Reforms Act, 1950." In the face of these almost insuperable obstacles, Shri P.R. Das candidly admitted that he could urge nothing as  regards the  adequacy  or the illusory nature  of  the  compensation provided  in  the Act, if he was not able  to  convince  the Court on his main point that he could challenge the  offend- ing Act on grounds other than those mentioned in Part III of the  Constitution, and that there was something  in  entries No.  36 of the State List and No. 42 of the Concurrent  List read  together  which imposed on the  State  Legislature  an obligation  to  provide lot the payment of  just  or  proper compensation and that the non-observance of this    1013 obligation entitles him to challenge the validity of the Act as unconstitutional.     The  acquisition  of property can only be for  a  public purpose.   Under  the  Land Acquisition Act, I  of  1894,  a declaration  by  the Government that land is  needed  for  a public purpose shall be conclusive evidence that the land is so needed and Courts cannot go into the question whether the public  purpose has been made out or not.  There is no  such provision  in any article of the Constitution with which  we have to deal.  It is true that sub-clause (2) of article  31 speaks of property being acquired for public purposes.   The bar  created by sub-clause (4) of article 31 relates to  the contravention  of the provisions of clause (2).  The  provi- sion of clause (2) is only as regards compensation as can be gathered from its latter part:-     "Unless  the  law  provides  for  compensation  for  the property  taken possession of or acquired and  either  fixes the amount of the compensation, or specifies the  principles on which, and the manner in which, the compensation is to be determined and given."     It  is assumed, rightly, that the existence of a  public purpose is part and parcel of the law and is inherent in it. The  existence  of a public purpose is not  a  provision  or condition  imposed by article 31 (2) as a limitation on  the exercise  of  the power of acquisition. The  condition  pre- scribed  is  only as regards compensation.  Article  31  (4) debars  the challenge of the constitutionality of an Act  on this  ground but no other. Whether there is any public  pur- pose at all, or whether the purpose stated is such a purpose

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is open, in my opinion, to judicial scrutiny or review.     When  the  legislature declares that there is  a  public purpose behind the legislation, we have of course to respect its  words. The object of the Act in question is  to  extin- guish  the interests of intermediaries like zamindars,  pro- prietors,  and estate and tenure-holders etc., and to  bring the actual cultivators into direct relations with the  State Government.   To achieve this end, several  provisions  have been enacted for the 1014 transfer  and the vesting of such interests in the State  as regards  various  items of properties. It is  impossible  to deny  that  the Act is inspired and dominated  by  a  public purpose,  but the question still remains whether the  taking over  of  particular items can be said to be  for  a  public purpose.  It  is in this connection that the  two  items  of "arrears  of  rent"  and "cost of works of  benefit  to  the raiyats"  dealt with in section 4, clause (b),  and  section 23,  clause (f) respectively of the Act, have to be  consid- ered.     The  taking over of "arrears of rent" does not  seem  to have  even  a remote connection with any  question  of  land reform.   It  stands on no better footing than  if  the  Act sought to take over the cash on hand or in the banks of  the zamindars,  proprietors  or tenureholders.  It  is  only  an accident that the rents in question were not realised before the  passing of the Act. Whether realised or not,  they  are his moneys due and payable to him by the ryots.  The  conse- quences of vesting of estates must have some relation to the tenures  themselves and have some connection, remote  though it  may be, with the agrarian reforms undertaken or  contem- plated. Supposing that we have a legislation stating that as it is necessary to eliminate rent collectors and farmers  of revenue and to apportion and distribute land on an equitable basis  amongst  the tillers of the land and confer  on  them rights of permanent occupancy and also to bring them direct- ly  into contact with the State, all moneys which  the  pro- prietors  had  collected as and by way of  rent  from  their estates  for  three years prior to the commencement  of  the Act, shall vest in and be payable to the State, could it  be said  by any stretch of reason that any public  purpose  had been  established for the taking of the moneys ? Arrears  of rent  stand  on  no better footing. Any  public  purpose  in taking  them  over  is conspicuous by its  absence.   It  is fairly obvious that resort was had to the arrears either for augmenting  the  financial  resources of the  State  or  for paying  compensation to the smaller proprietors out of  this particular item of acquisition.  Property of individuals     1015 cannot  be  appropriated  by the State under  the  power  of eminent  domain for the mere purpose of adding to its  reve- nues;  taxation is the recognised mode to secure  this  end. If the latter was the real object, it must be observed  that to  take one man’s property compulsorily for giving it  away to another in discharge of Government’s obligations is not a legitimate and permissible exercise of the power of acquisi- tion.     Sub-clause  (1) of section 21 no doubt provides that  50 per  cent.  of the arrears of rents shall be  added  to  the amount  of compensation.  This means one of two  things  (a) either the other 50% is taken without payment of any compen- sation, which is confiscation virtually or (b) 50 per  cent. is  taken  as  the  consolidated value  of  the  arrears  of rent--a  lump sum payment for the acquisition of  choses  in action or actionable claims. Taken either way, it is  diffi-

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cult  to see wherein the public purpose  consists.   Whether moneys could be compulsorily acquired at all by a State is a moot question. Willis says in his Constitutional Law at page 816  :--"While, as stated above, any and all property is  in general  subject  to the exercise of the  power  of  eminent domain,  there are certain rather unusual forms  of  private property  which  cannot thus be taken.  These  are  corpses, money, choses in action, property used by the government  in its  governmental capacity, property to be used for  a  mere substituted ownership unless such substituted ownership is a more necessary use, and perhaps trust property dedicated  to a  State, mortgage liens, and suits to quiet title."   under the heading "what property is subject to the right",  Cooley observes  in Vol. II of his book on  Constitutional  Limita- tions, at page 1117 :"From this statement, however, must  be excepted  money,  or that which in ordinary  use  passes  as such,  and which the Government may reach by  taxation,  and also  rights  in action, which can only be  available   when made to produce money; neither of which can it be needful to take under this power."  In the footnote he points out :-- 1016     "Taking   money under the right of eminent domain,  when it must be compensated in money afterwards, could be nothing more  or less than a forced loan, only to be justified as  a last  resort in a time of extreme peril, where  neither  the credit of the government nor  the power of taxation could be made available."     Nicols in his work on "Eminent Domain" does not disagree with  this view; on the other hand, he says at page  100  of Vol. I, paragraph 2. 1 (3) :--     "The question has arisen whether money can be taken   by eminent domain  and it has been held or  intimated, at least in so far as a state or. a private corporation is concerned, that  it is not subject to such taking.   The  objection  is not  based on an implied inherent limitation upon the  power of  government,   but upon  the difficulty  of  effecting  a taking  of money that would be of any service to the  public without  violating  the Constitution.  The use for which  it was  needed might well be public. but, as compensation  must be paid in money, and, if not in advance, at least with such expedition as conveniently may be had, the seizure of  money without compensation, or with an offer of payment in  notes, bonds  or  merchandise,--in other words, a  forced  sale  or loan--however it might be justified by dire necessity  would not  be  a constitutional exercise of the power  of  eminent domain."     The  learned  Attorney-General sought  to  justify  this acquisition on the ground that it was a compulsory taking of choses  in action.  Even so, they stand on the same  footing as  money, of less value no doubt than if they were coin  or currency  notes.  It seems that choses in action too  cannot be so acquired; reference has been made already to  Cooley’s observations.     The two cases Long Island Water Supply Company v.   City of  Brooklyn  (1) and City of Cincinnati  v.’  Louisville  & Nashville  Railroad Company(2) do not support  the  contrary view. In the former ease, (1) 166 U.S. 685 ; 41 I.. Ed. pp. 1, 165. (2) 223 U.S. 389; 56 L. Ed. 481. 1017 a Water Supply Company was under a contract to supply  water to the town of New Lots (which subsequently became merged in the  city of Brooklyn) in consideration    the  town  paying for hydrants to be furnished and supplied as provided in the contract.  The contract was for a term of 25 years. When the

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merger  took place, the city of Brooklyn was given power  to purchase or to condemn the property of the company within  2 years  but it did neither.  In 1892, the legislature  passed another Act authorising the City of Brooklyn to condemn  the property of the company, provided the necessary  proceedings were commenced within one year after the passing of the Act. The procedure for the acquisition was prescribed in the  Act itself.  The power was exercised by the city and the compen- sation  payable  was determined by the  Commissioners  at  a particular figure.  The company objected to the  acquisition on  the  strength of article 1, Paragraph 10,  of  the  U.S. Constitution which forbids any  State  to pass a law impair- ing the obligation of  contracts and was not "due process of law"  as required’ by the  14th  Amendment.  On  error,  the Supreme Court confirmed the  condemnation  and rejected  the argument that there was any impairment of the contract.  Mr. Justice Brewer points out that the contract is a mere  inci- dent  to  the tangible property and that it  is  the  latter which,  being  fitted for public uses,  is  condemned.   The contract  is not the thing which is sought to  be  condemned and its impairment, if impairment there be, is a mere conse- quence  of the appropriation of the tangible  property.   In the present cases, it is untenable to state that the  taking over  of  arrears of rent is a natural  consequence  of  the acquisition of the estates.     In  the latter case, a railroad company filed a suit  to condemn a right of way for an elevated railroad track across the public landing at Cincinnati.  The city objected on  the ground that the public landing had become property dedicated to  the  public under an earlier contract and to  allow  the condemnation under a 131 1018 statute of Ohio was an impairment of the contract, forbidden by  the 10th section of  the first article of the  Constitu- tion  of the United States.  The court through  Mr.  Justice Lurton  held: The constitutional inhibition upon  any  state law  impairing the obligation of contracts is not a  limita- tion  upon the power of eminent domain. The obligation of  a contract is not impaired when it is appropriated to a public use  and  compensation made therefor. Such  an  exertion  of power neither challenges its validity nor impairs its  obli- gation.  Both  are recognised for it is appropriated  as  an existing  enforceable contract. It is a taking, not  an  im- pairment  of  its obligation.  If compensation be  made,  no constitutional right is violated."     It would thus be evident that they were not cases of the compulsory acquisition of choses in action. Choses in action unrelated  to  any  tangible property can be  useful  for  a public  purpose only when converted into money.  Arrears  of money  are particularly so.  When it is said that money  and choses in action are exempt from compulsory acquisition,  it is  not on the ground that they are movable property but  on the ground that generally speaking there could be no  public purpose in their acquisition.     The  provisions in section 23, sub-clause (f) that 4  to 12  1/2 per cent. of the gross assets can be  deducted  from the amount as representing "cost of works of benefit to  the raiyats".   This  is an obvious device to reduce  the  gross assets and bring it down to as low a level as possible.  The Act  does not say that this charge represents the   expendi- ture  on works of benefit, or improvements which the  zamin- dars  and  proprietors were under any  legal  obligation  to carry  out and which they failed to discharge.  Nor  are  we told anything about the future destination of this  deducted

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sum.   It is an arbitrary figure which the  legislature  has said must be deducted from the gross assets.  The  deduction is a mere contrivance to reduce the compensation and it is a colourable  or fraudulent exercise of legislative  power  to subtract  a  fanciful  sum  from the  calculation  of  gross assets. 1019     Stripped of their veils or vestments, the provisions  in the  act about "arrears of rent" and the "cost of  works  of benefit" amount to naked confiscation. Where the legislative action  is arbitrary in the sense that it has no  reasonable relation to the purpose in view, there is a transgression by the  legislature  of the limits of its  power.   Under.  the guise of legislating for acquisition, the legislature cannot enable the State to perpetrate confiscation; and if it  does so,  the Act to that extent has to be  declared  unconstitu- tional and void.  If the part that is void is so  inextrica- bly  interwoven into the texture of the rest, the whole  Act has to be struck down.  Such, however, is not the case here.     It is gratifying to note that the Madhya Pradesh  Aboli- tion of Proprietory Rights Act of 1950 and the Uttar Pradesh Zamindari  Abolition and Land Reforms Act of 1950 which  are also  in question are free from this blemish of reaching  at arrears  of rent due for any period anterior to the date  of vesting. Appeals allowed: Petition No. 612 dismissed. Agent for the appellant (State of Bihar): P. A Mehta. Agent for the respondents in Cases Nos. 339,319,327,330,332                                    of  1951:  J.N.Shroff.   " "                        in Cases Nos. 309, 326, 328,  336,                                  337,344 of 1951 Ganpat Rai   "            "          in Cases Nos. 310, 311, and 329 of                                 of 1951 : R.C. Prasad.   "            "          in Case No. 315 of 1951 :                                   P.K.Chattargy   "            "          in Cases Nos. 307,313,320,321,                              and   322  of   1951:   Sukumar Ghose.   "            "          in Case No. 331 of 1951: S.P.Varma     Agent  for the petitioner in Petition No. 612  of  1951: Ganpat Rai.     Agent for respondent No. 2 in Petition No. 612 of  1951: P.A. Mehta. 1020