The Judgment of the Court was delivered by
Banerjee, J.:— The question raised in this reference is as to whether sec. 7 of the West Bengal Act VII of 1950 or any part of it is ultra vires the Constitution of India.
2. The appeal was pending in the Court of the Additional District Judge, 24-Parganas, when on an application made by the Plaintiff, who is the Respondent in the appeal, we, under Art. 228 of the Constitution of India, transferred the appeal to this Court for decision of the constitutional point involved in it. The facts, in so far as they are material to this judgment, are as follows: The Petitioner purchased the entire touzi being No. 341 of the 24-Parganas Collectorate at a revenue sale held on 9th January, 1942. After purchase the purchaser annulled the under-tenures and tenancies which he was entitled to avoid and annul under sec. 37 of Act XI of 1859, as it stood at the date of the sale (9th January, 1942) and at the date of the institution of the suit.
3. On 18th March, 1946, the Plaintiff instituted the suit, out of which this appeal arises, in the Court of the Fourth Subordinate Judge, 24-Parganas (T.S No. 35 of 1946) for ejectment. There were several Defendants.
4. The Plaintiff's case is that by purchase at the sale, he acquired the estate free from all incumbrances imposed upon it after the time of settlement and was entitled to avoid and annul the under-tenures and tenancies and forthwith to eject the tenants under that section; that by notice duly served, he has annulled the tenures and tenancies and is entitled to recover possession of the suit lands.
5. The suit was contested by Defendant No. 1 alone. His defence, inter alia, was that he was a raiyat within the meaning of the proviso to that section and was not liable to be ejected. He further claimed protection under the fourth exception to that section.
6. The learned trial Judge delivered judgment on 14th February, 1949. He overruled the objections of the Defendant save as to two plots and passed a decree in Plaintiff's favour accordingly. The suit against the other Defendants was dismissed, the learned Judge holding that they were not necessary parties to the suit.
7. The Defendant on 25th March, 1949, preferred an appeal to the District Judge (T.A No. 252 of 1949), which was transferred to the Additional District Judge and was pending before him, when the application for transfer was made to this Court under Art. 228 of the Constitution.
8. The West Bengal Legislature has passed an Act called “West Bengal Act VII of 1950— The Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950,” which received the assent of His Excellency the Governor on 15th March, 1950, and was published in the Calcutta Gazette Extraordinary of that date. The preamble of the Act is, “Whereas it is expedient further to amend the Bengal Land Revenue Sales Act, 1859, in its application to West Bengal, for the purposes and in the manner hereinafter appearing.”
9. Sec. 37 of the Act of 1859 has been replaced by sec. 4 of the Act of 1950, which defines the rights of a purchaser of a permanently settled estate sold for its own arrears.
10. Sec. 37 of the Act of 1859 gave the purchaser of an entire estate the right to avoid certain incumbrances and under-tenures and acquire the estate in the condition in which it was at the time of the permanent settlement. The words of the section are “the purchaser…. shall acquire the estate free from all incumbrances which may have been imposed upon it after the time of settlement; and shall be entitled to avoid and annul all under-tenures, and forthwith to eject all under-tenants with the following exceptions:….”
11. Though this right was given to the purchaser for the protection of the Government revenue, the right was an extremely valuable one.
12. The effect of sec. 4, on the other hand, is that the purchaser is not entitled to annul tenures and tenancies such as he could do under sec. 37 of the Act of 1859. A purchaser of an estate, who purchases after the commencement of the Amending Act, does not, under sec. 4, get that extensive right of annuling tenures and tenancies which a purchaser got under the Act of 1859.
13. Then comes sec. 7 of the Amending Act which is as follows:—
“7. (1) (a) Every suit or proceeding for the ejectment of any person from any land in pursuance of sec. 37 or sec. 52 of the said Act, and
(b) every appeal of application for review or revision arising out of such suit or proceeding, pending at the date of commencement of this Act, shall, if the suit, proceeding, appeal or application could not have been validly instituted, preferred or made had this Act been in operation at the date of the institution, the preferring or the making thereof, abate.
(2) Every decree passed or order made, before the date of commencement of this Act, for the ejectment of any person from any land in pursuance of sec. 37 or sec. 52 of the said Act, shall, if the decree or order could not have been validly passed or made had this Act been in operation at the date of the passing or making thereof, be void:—
Provided that nothing in this section shall affect any decree or order in execution whereof the possession of the land in respect of which the decree or order was passed or made, has already been delivered before the date of commencement of this Act.
(3) Whenever any suit, proceeding, appeal or application abates under sub-sec. (1) or any decree or order becomes void under sub-sec. (2), all fees paid under the Court-fees Act, 1870, shall be refunded to the parties by whom the same were respectively paid.”
14. It is clear that under this section, Plaintiff's suit abates and the decree becomes void.
15. It is contended on behalf of the Petitioner that sec. 7 violates the fundamental right assured to him by Art. 19 (1) (f) of the Constitution to acquire, hold and dispose of property and as such is void, under Art. 13.
16. The material portions of Arts. 19 and 13 of the Constitution are as follows:—
17. Art. 19 (1)— All citizens shall have the right—
(f) to acquire, hold and dispose of property; and
(5) Nothing in sub-cl. (j) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clause cither in the interests of the general public or for the protection of the interests of any scheduled tribe.
Art. 13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
18. Property has various meanings. In its strict sense, it denotes a right—indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration —over a determinate thing. Another meaning of it is that it is the aggregate of a man's faculties, rights or means. When we speak of a man of property, meaning a wealthy man, we seem chiefly to contemplate the value of his rights in external things, or, of the debts due to him; the most conspicuous proportion of his rights; (Austin's Jurisprudence).
19. Cooley in his Constitutional Law defines property thus:
“Whatever a man produces by the labour of his hand or his brain, whatever he obtains in exchange for something of his own, and whatever is given to him, the law will protect him in the use, employment, and disposition of.”
20. The purchaser acquired the “property” with all rights under the then existing law and is entitled to hold it in the condition he acquired it. The legislature by the Amending Act abridges the rights. Under the Act then existing he could annul certain tenures, etc. The Amending Act says he cannot. After annulling the tenures under the Act of 1859, he filed a suit for possession. He got a decree in the trial Court and when the appeal was pending in the Court of the Additional District Judge, the Act was passed enacting that his suit for ejectment must abate and the decree is void. What is the position?
21. The right acquired by the subject of a Government under existing laws is sacred. The supreme duty of the Government is to protect it. Any needless interference with the right is a positive evil and injury.
22. In spite of the fact that philosophical writers have denied that any legislature ought to have the power to pass Acts having retrospective operation, no one denies that it is competent for the legislature to do so and they have many times done so in the past.
23. The legislature must have power to make such changes in the law as social or political condition requires. Any denial of such power would reduce us to a state of stagnation and immobility. Yet unless there is a compelling necessity, the legislature cannot make any law mischievously affecting the rights acquired by the subjects. If the legislature at its sweet will and pleasure could interfere with bitch rights, people would have no incentive to acquire property or work for it. For if a man cannot keep what he has rightly acquired, what should he work for—what should he strive for? Any heedless act on the part of the legislature produces a general sense of insecurity and consequent inactivity in individuals who compose the nation, leading ultimately to its degradation. The Government, therefore, must be very cautious in passing a law which takes away vested rights. If there is a compelling necessity, the legislature can pass such law, but then it must be for doing the greatest good to the greatest number.
24. In, Bac. Abr. 439 (“Statute” C) it is laid down as in general true, “that no statute is to have a retrospect beyond the time of its commencement.”
25. Puffendorf observes: “Law can be repealed by the law-giver; but the rights which have been acquired under it while it was in force, do not thereby cease. It would be an act of absolute injustice to abolish with a law all the effects which it had produced.”
26. Sidgwick says: “The true principle of legislation is frequently lost sight of in regard to the enactment of statutes having a retrospective effect. Laws are constantly passed, which disturb plans or destroy rights entered into upon the faith of, or created by, previous legislation. Nothing short of some great, paramount emergency of public policy, can justify laws of this kind. It will be well for all engaged in the business of Government, to understand and remember that the steady and uniform rule should be to make statutes operate prospectively only. No exception should be tolerated, but on the ground of a controlling public necessity.”
27. So careful are the Courts in endeavouring to protect vested rights that we find that in several cases judges have refused to allow statutes to have a retrospective operation, although their language seemed to imply that such was the intention of the legislature, because, if the statutes had been so construed, vested rights would have been defeated.
28. In Young v. Adams(1) the Judicial Committee had to consider whether a New South Wales Civil Service Act was retrospective in its operation. Lord Watson said: “It does not seem to be very probable that the legislature should intend to extinguish, by means of retrospective enactment, rights and interests which might have already been valid in a very limited class of persons, consisting, so far as appears, of one individual, vis., the respondent. In; such cases their Lordships are of opinion that the rule laid down by Erle, C.J, in Midland Railway v. Pye(2) ought to apply. They think that in the present case the learned Chief Justice (of New South Wales) was right in saying that a retrospective operation ought not to be given to the statute unless the intention of the legislature that it would be so construed is expressed in plain and unambiguous language, because it manifestly shocks our sense of justice that an act, legal at the time of doing it, should be made unlawful by some new enactment. The ratio is equally apparent when a new enactment is said to convert an act wrongfully done into a legal act, and to deprive the person injured of the remedy which the law then gave him.”
29. In Moon v. Durden(3) an action to recover a sum of money alleged to have been won upon a wager was commenced in June, 1945. In August, 1845, the Gaming Act, 1845, was passed, which enacted, in sec. 18, that “no suit shall be brought or maintained for recovering” any such sum of “money,” and the question was whether that enactment was retrospective so as to defeat an action already commenced. It was held that it was not retrospective, and Parke, B., in his judgment said: “It seems a strong thing to hold that the legislature could have meant that a party who under a contract made prior to the Act had as perfect a title to recover a sum of money as he has to any of his personal property, should be totally deprived of it without compensation.” And Alderson, B., refused to give retrospective operation to the Act on the ground that he could not think “that the legislature contemplated so gross an act of injustice as, without compensation, to take away an existing right of action already pending, and that, too, with no provision even for the costs incurred in enforcing of what was, before the Act, a legal right.”
30. There are other cases in which Courts have taken the same view.
31. It is clear that the subjects of a civilised country have the right to expect that they would be allowed to retain rights they acquired under the existing law.
32. Under Sec. 7 of the new Act the suit abates, and the decree becomes void. It takes away certain rights which the Petitioner acquired under the law as it existed before the passing of the new Act. The same thing cannot be said of sec. 4. It has prospective operation only. A purchaser who purchases a touzi after the passing of the new Act does so with his eyes open. He knows what rights he will get and what he will not. He knows what tenures and tenancies he can annul and avoid and what he cannot. He offers his bid accordingly, and therefore no exception can be taken to that section.
33. Mr. Atul Gupta, learned Counsel for the Petitioner, has not challenged the validity of sec. 4. His attack is on sec. 7. Sec. 7 does not provide for payment of any compensation. Out of the purchase money paid by the Petitioner a portion will go to liquidate the revenue in arrears and the balance will be paid to the defaulting touzi-holder. In other words, the legislature by passing sec. 7 takes away the property of A and gives to B. There cannot, therefore, be doubted that a restriction has been imposed on the Petitioner's right to hold the property he acquired.
34. The question before us is whether the restriction is reasonable. What is the test of reasonableness? One thing seems to be clear that it must mean “not more than enough to attain the object”. It must not be greater than the mischief it is intended to prevent. If it is necessary to pass an act in the interests of the general public imposing restrictions on the exercise of right already acquired, pass it by all means, but then the restriction imposed must not be greater than what is necessary to meet the requirement of the case.
35. The onus is on the Petitioner to show that the impugned section violates the principles of Constitution and is arbitrary and unreasonable. That has been held in Chiran-jit v. Union of India(4). But in this case though there was discussion at the Bar on the question of onus, we need not pause to consider it, because, as I have already said, unless there is compelling public necessity, the legislature cannot pass an act having retrospective operation.
36. We asked the Advocate-General, who appeared on behalf of the State, to tell us what was the compelling necessity that induced the legislature to enact sec. 7. The Advocate-General, I must say, was not able to give a satisfactory answer. All that he said was that the Petitioner knew that an Act might be passed which might take away his vested right and knowing that, he purchased the property and so he could not make any grievance. I do not think that it is an answer at all. We might as well say that the purchaser knew that the right he acquired under the existing law would not be taken away. He may as well think that this Act has been in existence ever since 1859 and though the country has passed through many vicissitudes, as no one touched the Act or sec. 37 before, no one would do it. By long existence the Act produced a sense of respose in the minds of people. After a hundred years, the Bengal legislature has thought fit to disturb it. How could one anticipate it?
37. The Advocate-General further said that the amendment had been made in furtherance of an agrarian scheme. Be it so. Nobody denies the right of the legislature to pass such Act as it may think fit to improve the lot of the tenants or the raiyats. But the legislature cannot do so at the expense of other people. Why take away the property of A and give it to B? How can the legislature take away property without making provision for payment of compensation? That right is not given by the people of a country to its Government.
38. From the preamble it appears that the legislature passed it not because it was necessary to do so but because it thought it was expedient to do so. There is nothing before us to show that it was necessary to pass the ‘Amendment Act’ at the present social or political condition of the country.
39. Section 7 is clearly separable from the rest of the Act. That has been conceded by counsel for the parties. The principle that a statute is void only so far as its provisions are repugnant to the Constitution, that one provision may be void, and this not affect other provisions of the statute, has been frequently declared. “The principle is now well understood”, says the Supreme Court of Massachusetts, “that where a statute has been passed by the legislature under all the forms and sanctions requisite to the making of laws, some part of which is not within the competency of the legislative power, or is repugnant to any provision of the Constitution, such part thereof will be adjudged void and of no avail; whilst all other parts of the Act, not obnoxious to the same objection, will be held valid and have the force of law. There is nothing inconsistent in declaring one part of the same statute valid and another part void”. This principle is recognised in Article 13 of our Constitution. Section 7 therefore being separable from the rest of the Act, we declare that section to be void.
40. The case is now returned to the Court from which it came for disposal in conformity with our judgment.
41. The Petitioner is entitled to the costs of the application assessed at 15 gold mohurs.
Harries, C.J:— I agree.
42. It is not suggested that the Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950 (Act VII of 1950), as a whole is ultra vires the Constitution and therefore void. A person who purchases at a Revenue Sale after the passing of this Act will purchase the property subject to the provisions of the Act. He will have no right to eject various classes of tenants which he could have ejected if this amending Act had not been passed, but it is not suggested that the State legislature cannot cut down the rights of auction-purchasers purchasing after the passing of the Act.
43. Objection, however, is taken to s. 7 of the amending Act, which makes the provisions of the Act applicable to pending suits, appeals and proceedings and provides that all such suits, appeals or proceedings will abate if such could not have been validly instituted, preferred or made if the Act had been in force when they were instituted. Further, all decrees or orders made before the passing of this Act at the instance of auction-purchasers, are made void except where possession has been delivered to such auction-purchaser in execution of such decrees or orders.
44. This amending Act, therefore, is clearly made applicable to pending litigation and unexecuted decrees and to that extent it has been given retrospective effect. Section 7, it is urged, is ultra vires the Constitution in that it imposes a restriction on the right to hold property contrary to the provisions of Art. 19(1)(f) and Art. 19(5) of the Constitution.
45. Article 19(1) (f) declares that all citizens of the Republic shall have the right to acquire, hold and dispose of property and no law existing when the Constitution came into force or enacted thereafter is valid by reason of Articles 19(5) and 13(1) of the Constitution, if it imposes restrictions on these rights beyond what is reasonably necessary in the interests of the general public.
46. Section 7 of the amending Act clearly takes away rights which the Petitioner had when the Act came into force. When he purchased the property at the Revenue Sale he became entitled to it under s. 37 of the Bengal Land Revenue Sates Act, 1859, free from all encumbrances imposed on the property since the date of the Permanent Settlement and he had the right to annul and avoid all under-tenures and to eject all under-tenants with a few exceptions.
47. Section 37 of the Bengal Land Revenue Sales Act, 1859, is repealed in its entirety by s. 4 of the amending Act of 1950 and this new section protects numerous interests which previously were unprotected and deprives the auction-purchaser of his right to put an end to such interests and to recover possession of the property subject to them. Making sec. 4 of the amending Act applicable to pending litigation and unexecuted decrees deprives auction-purchasers in such litigation and the holders of such decrees of valuable rights which had accrued to them on their purchases at Revenue Sales. They were deprived of valuable rights which they were proceeding to enforce when this amending Act was passed.
48. The question for decision is whether sec. 7 of the amending Act imposes restrictions on the petitioner's right to hold property and if so, whether such restrictions are or are not reasonable in the interests of the general public.
49. It was contended that the section could not be regarded as imposing any restrictions on the right to hold the property purchased at a Revenue Sale. The section does not deprive an auction-purchaser of the physical property purchased and therefore it is urged that it does not affect his right to hold the property. In my judgment, restrictions on the right to hold property do not necessarily involve deprivation of the actual property. In fact it has been strenuously contended in other cases that deprivation of property cannot be regarded as a restriction, reasonable or otherwise, on the right to hold property. Section 7 of the amending Act though it does not deprive the auction-purchaser of the actual property purchased, does very materially limit his rights over such property and does deprive him of valuable rights in and over the same.
50. The right to hold property is the right to exercise and enforce all the rights which the ownership of property or of any interest therein involves. If any of these rights are taken away or prejudicially affected, the right to hold such property has to that extent been affected or restricted. Where any rights are taken away or abridged the owner of the property holds the property with restricted rights therein. His right of enjoyment has been curtailed or restricted and therefore it appears to me to be clear that sec. 7 of the amending Act does impose restrictions on the holding of property. It follows therefore that if these restrictions are more than are necessary in the interests of the general public, the section is void as ultra vires Articles 19(1)(f), 19(5) and 13(1) of the Constitution.
51. The petitioner contended that the onus rested on the opposite party to show that the restrictions imposed were reasonable. The section, it was urged, clearly restricted a fundamental right which the Petitioner had under the Constitution and therefore the burden rested on the party who sought to justify such a restriction. The opposite party on the other hand contended that the onus rested on the party seeking relief. Where such relief depended upon whether a legislative provision was ultra vires and void the onus of establishing such invalidity rested on the party challenging the provision in question. In my judgment the onus in this case rested on the Petitioner and this has now been decided by the Supreme Court in the case of Chi-ranji v. The Union of India. At page 45 Fazl Ali, J., observed:
“It is the accepted doctrine of the American Courts, which I consider to be well-founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.”
52. The Petitioner has, in my view, discharged this initial onus. The impugned section makes the amending Act applicable to pending suits and unexecuted decrees. It purports to deprive the Plaintiff-Petitioner of rights which he undoubtedly possessed when he instituted the suit and in fact when the appeal by the unsuccessful Defendant was preferred. Prima facie such a section is unreasonable and such has always been the view of all Courts both in England and India. The Courts of both these countries declined to give retrospective effect to any statute affecting substantive rights unless such effect was given to it by express words or by necessary intendment or implication. The reason for such a rule of construction was that it was unreasonable to deprive a person of rights which had accrued to him by giving any enactment retrospective effect. Such effect was, therefore, never given unless by the plain words of the legislative provision or by necessary implication the Courts were driven to place such a construction upon the enactment.
53. No Court would have given retrospective effect to sec. 4 of the amending Act apart from the clear provisions of sec. 7. Sec. 7 is prima facie unreasonable and prima facie does impose an unreasonable restriction on the Petitioner's fundamental right to hold property.
54. Further, it does not appear to me that it was in any way necessary in the interests of the general public to give sec. 4 of the amending Act retrospective effect. The Bengal Land Revenue Sales Act which contains sec. 37 now replaced by sec. 4 of the amending Act was enacted in 1859. Since that date auction-purchasers had the right to annul all under-tenures and to eject all under-tenants with a few exceptions. It may well be that the time had come to amend the law as it is well known that the value of property has increased whereas the revenue demand has remained the same by reason of the Permanent Settlement. It may well have been thought that auction-purchasers could now be obtained who would pay sufficient to satisfy the revenue demand without being able to acquire the property free from all encumbrances and with a right to eject various kinds of under-tenure-holders and tenants. Why was it necessary, however, to make the change in this old law applicable to pending litigation and unexecuted decrees and thus deprive persons who had purchased of valuable rights which they acquired by such purchase? The learned Advocate-General could give no reason why sec. 7 was introduced into the amending Act. There was no suggestion that the number of suits or proceedings pending was abnormally large or that ejectment in 1950 would be followed by consequences more distressing or disastrous than ejectment in 1949 or in any of the years following the War. The law had remained unchanged for ninety years and nothing has been shown or even suggested which would make it imperative or even desirable that the change in the law when made should be made to apply to pending litigation or unexecuted decrees. Making this amendment applicable to pending litigation and unexecuted decrees is particularly objectionable and unreasonable and could only be justified on the ground of reason in very compelling circumstances.
55. The amendment deprives the auction-purchaser of valuable rights which accrued to him on the purchase. Nevertheless the amendment makes no provision for abatement of the price which the auction-purchaser had paid. In short the auction-purchaser will obtain as a result of the amendment an estate in reversion whereas he paid a price for an estate in possession or practically so. Making the amendment applicable to pending suits appears to me therefore to be unfair and Unreasonable in the absence of circumstances which made such a course imperative or necessary in the interests of the public.
56. It was urged that the limitation imposed by the amendment would in no way benefit the general public and could never be regarded as made in the public interest. The retrospective effect of this provision would certainly benefit the defaulting proprietor, if the price obtained was more than the arrears of revenue. In the present case the revenue demand was Rs. 2,287-7-6, whereas the price paid was Rs. 10,500. The defaulting proprietor received the difference which would have been very much less if the property had been purchased without right of ejecting the under-tenure-holders and most of the under-tenants.
57. Section 7 of the amending Act clearly benefits holders of interests previously liable to ejectment. It does not benefit tenure-holders, lessees or tenants as a whole, but only such who were judgment-debtors under unexecuted decrees or who were being sued or could be sued within limitation. The class benefited is therefore a very limited one and therefore it is difficult and indeed impossible to hold that the restrictions or limitations imposed on the auction-purchaser's rights were necessary in the interests of the general public. In my judgment sec. 7 of this amending Act is ultra vires Articles 19(1) (f) and 19(5) of the Constitution and it must therefore be held that the section is void by reason of Art. 13(1) of the Constitution.
58. The impugned section is clearly severable from the remainder of the Act and this is conceded.
59. Only section 7 of the Act is therefore void and the appeal must be decided accordingly.
60. The records should be returned forthwith to the lower appellate Court which will proceed to decide the appeal bearing in mind the decision of this Court on this constitutional point.