Shearer, J.:— On the 9th of May, 1950, the Bihar Land Reforms Act, 1950 (Act XXX of 1950), having passed through the Legislative Assembly and the) Legislative Council, was reserved by the Governor for the consideration of the President. The President assented to the Act on the 11th of September, 1950. On the 24th of September, 1950, the Government of Bihar issued a notification under section 1(3) of the Act declaring that on the day following, the estates and tenures of three leading: zamindars in the province, namely, Sir Kameshwar Singh, the Maharajadhiraja of Darbhanga his brother Raja Bahadur Visheshwar Singh and Raja Bahadur Kamakshya Narayan Singh of Ram earn, should pass to and become vested in the State. These three zamindars at once gave notice under section 80 of the Code of Civil Procedure of their intention to institute suits and also applied to this Court for an injunction to restrain the Government of Bihar from taking possession of their property. Ad interim injunctions were granted and in due course, suits were instituted and were withdrawn to be tried by this Court in the exercise of its extraordinary original civil jurisdiction. The applications have been heard along with the suits as also have a number of similar, applications made by other zamindars, who apprehend that notifications may issue declaring that their estates and tenures also shall pass to, and become vested in, the State. The following issues in the suits were framed:
“1. Is the Bihar Land Reforms Act of 1950 (Bihar Act XXX of 1950) ultra vires the legislative powers of the State of Bihar?
2. Is the said Act unconstitutional, unreasonable, inoperative and void for the reasons mentioned in paragraph 5 of the plaint or any of them?
3. Have the properties of the plaintiff vested in the State of Bihar under the said Act? If so, have they so vested under the authority of law?
4. Can any question regarding compensation or principles for the determination and giving of compensation be raised in this suit in view of the assent of the President under clause (4) of Article 31 of the Constitution?
5. Is the plaintiff entitled to any of the reliefs prayed for?”
It will be convenient to deal with these issues together as, in effect, two points only are raised, namely, whether the Bihar Land Reforms Act, 1950, is or is not a constitutional law and if it is not a constitutional law, whether this Court is, by reason of Article 31(4) of the Constitution, disentitled to pronounce it to be unconstitutional, and to give the plaintiffs the reliefs for which they ask.
It is not necessary to set out in any detail the provisions of the impugned Act. The Act is described in the preamble as an Act
“to provide for the transference 10 the State of the interests of proprietors and tenure-holders in land and of the mortgages and lessees of such interests including interests in trees, forests, fisheries, jalkars, ferries, hats, bazars, mines and minerals.”
It is enough for our present purpose to say that certain rights of proprietors and tenure-holders are to be extinguished, and other rights are to be modified. The rent payable by raiyats to the proprietors of estates or the holders of tenures, is in future to be paid to the State, and not to the proprietors or tenure-holders, this right of the latter being wholly extinguished. Proprietors and tenure-holders are, on the other hand, to be permitted to continue in possession of their homesteads, their zerat and other agricultural or horticultural land actually cultivated by them, of any golas, factories or mills situated on their property and belonging to them, and of and mines which they themselves are working. They are to hold their homesteads free of rent, but are to be assessed to a fair and equitable rent so far as any other land of which they are permitted to continue in possession is concerned. Similarly, if they themselves are actually working any mines and are permitted to continue to do so, they must take a lease from the State, the terms of which are either to be settled by agreement or are to be determined by a Mines Tribunal. Any mines which are not being worked by the proprietors or tenure-holders themselves, but by their lessees, are to vest in the State, and the lessees are exceept in certain circumstances, to be granted leases by the State. Compensation is to be given to proprietors and tenure-holders who are expropriated, and to these provisions in the Act I will refer in some detail later. Generally speaking, therefore, it may be said that the purpose of the Act is to substitute a raiyatwari for a zamindari system of land tenure, or, alternatively, to prevent any individual from deriving an income, which is an unearned income, from land, and to ensure that the whole of the land in the State shall belong to and be in the possession of, the persons who actually cultivate it.
The Constitution of India recognises the inviolability of private property except in so far as the property of an individual may be required for the purposes of the Union or State or for some other public purpose, in which case compensation must be paid, in order that the individual expropriated may not be compelled to contribute to expenditure incurred by the State more than any other citizen does. Otherwise private property is sacrosanct. To this, however, there is one important exception, namely, land or rather certain rights in land. The British Parliament, in enacting the Government of India Act, 1935, also recognised that land did not stand on precisely the same footing as other kinds of property. Sub-section (1) of Section 299 of the Government of India Act, 1935, embodied the general principle that no person should be deprived of his property save by authority of law. Sub-section (2) provided that when property or property of certain descriptions, belonging to an individual was taken over for public purposes compensation had to be paid. Sub-section (3) dealt with bills
“making provision for the transference to public ownership of any land, or for the extinguishment or modification of rights therein, including rights or privileges in respect of land revenue.”
When a comparatively small parcel of land belonging to an individual or to a small number of individuals is acquired for public purposes there is ordinarily no great difficulty either in determining the market value of the land or in compensating the individual or individuals expropriated in money. When, however, some far reaching scheme of land reform is undertaken, involving the extinguishment or modification of rights in land belonging to a great number of private individuals, it must necessarily be a matter of the greatest difficulty, both to determine what is adequate compensation and to pay such compensation immediately and in money. It is one thing to expropriate an individual, and it is quite another to expropriate an entire class of individuals, and legislation which has as its aim the latter object may have to be based on principles somewhat different to those underlying legislation which has as its aim the former object. That this was recognised by the British Parliament, and that it quite deliberately dealt in sub-sections (2) and (3) of Section 299 of the Government of India Act in a very different manner with what it considered to be very different subjects of legislation is made clear by what is contained in paragraph 369 of the Report of the Joint Committee on Indian Constitutional Reforms. This is as follows:
“369. We think that Some general provision should be inserted in the Constitution Act safeguarding private property against expropriation, in order to quiet doubts which have been aroused in recent year by certain Indian utterances. It is obviously difficult to frame and general provision with this object without unduly restricting the powers of the Legislature in relation particularly to taxation; in fact, much the same difficulties would be presented as those which we have discussed above in relation to fundamental rights. We do not attempt to define with precision the scope of the provision we have in mind, the drafting of which will require careful consideration for the reasons we have indicated; but we think that it would secure that legislation expropriating, or authorising the expropriation of, the property of particular individuals should be lawful only if confined to expropriation for public purposes and if compensation is determined, either in the first; instance or on appeal by some Independent authority. General legislation, on the other hand, the effect of which would be to transfer to public ownership some particular class of property, or to extinguish or modify the rights of individuals in it, ought, we think, to require the previous sanction of the Governor-General or Governor (as the case may be) to its introduction: and in that event he should be directed by his Instrument of Instructions to take into account as a relevant factor the nature of the provisions proposed for compensating those, whose interests will be adversely affected by the legislation.”
It will be seen that subjection (3) of section 299 provided that no such bill or amendment as was referred to in it should be
“introduced or moved in either Chamber of the Federal Legislature without the previous sanction of the Governor-General in his discretion or in a Chamber of a Provincial Legislature without the previous sanction of the Governor in his discretion.”
Paragraph XVII of the Instrument of Instructions to the Governor forbade him to assent in His Majesty's name to
“any Bill which would alter the character of the Permanent Settlement”
and required him to reserve it for the consideration of the Governor-General. At the same time the Governor was instructed not to withhold his sanction to the introduction of the bill, the object of this being, no doubt, to ensure that the merits or demerits of the bill should be fully discussed in the Legislature. Paragraph XXVII of the Instrument of Instructions to the Governor-General similarly forbade the Governor-General to assent to
“any Bill passed by a Provincial Legislature and reserved for his consideration which would alter the character of the Permanent Settlement”
and directed him to reserve it for the signification of August, 1947. Under that Constitution the term; period in the history of the British Colonial Empire it was the practice for instructions to be issued to Colonial Governors requiring them to reserve bills passed by Colonial Legislatures for the signification, of His Majesty's pleasure. Sections 55 and 57 of the British North America Act, 1867, and sections 58 and 60 of the Commonwealth of Australian Constitution Act, 1900, made it obligatory on the Governor-General in certain cases to withhold his assent to legislation and made provision as to the circumstances in which such legislation should or should not take effect. The reason why this constitutional machinery was invented was to ensure that colonial legislation should not be such as to conflict with legislation by the British Parliament, or to endanger imperial interests or lead to international-complications. In enacting sub-section (3) of section 299 of the Government of India Act, 1935, and in issuing the instructions to the Governor-General and to Governors of Provinces to which I have referred, the British Parliament was making use of this constitutional machinery for another and somewhat different purpose, namely, to ensure that, if the Permanent Settlement was abolished or substantially altered, it should only be on conditions which were not unfair to the successors-in-interest of the persons with whom in 1793 the British Government had entered into a contract or agreement. Clause (1) of Article 31 of the Constitution reproduces sub-section (1) of Section 299 of the Government of India Act, 1935. Clause (2) of the Article substantially reproduces sub-section (2) of section 299. It is true that under clause (2) property of any kind may now be acquired or requisitioned by the State, and it is also true that the substitution of the words “for compensation” for the words “for the payment of compensation” indicates that compensation may now be given not in money, but in bonds, or possibly, in land, the reason, no doubt, being that when large numbers of individuals are to be expropriated under a scheme of land reform it may be impossible to compensate them in money, and that, when large numbers of cultivators are to be expropriated in order that land may be taken for such a public purpose as the construction of a dam it may be in their own interest to receive land elsewhere rather than money. But, with these exceptions, the alterations made in sub-section (2) of section 299 are purely verbal. There is nothing in Article 31 corresponding to sub-section (3) of section 299, but clause (3) requires that any expropriatory law must be reserved for the consideration of the President and must receive his assent before it can take effect. If clauses (1) to (3); in Article 31 had stood alone and had not been followed by clauses (4) to (6) proprietors of estates held under the Permanent Settlement would now have been in a very much stronger position than they were in under the Constitution in force prior to the 15th of August, 1947. Under that Constitution the terms on which they were liable to be expropriated was a matter in the last resort for the decision of a British Secretary of State or the British Cabinet. Once the Act rendering them liable to be expropriated had received the assent of His Majesty, the adequacy or even the validity of the provisions contained in it providing for compensation could not have been challenged in the Courts. Under the Constitution however, if clauses 4 to 6 had not been inserted, in Article 31, they could have appealed to the courts challenging the validity of the law on, among other grounds, that the compensation provided represented less than the market value of their property. A multiplicity of suits would have been instituted and quite, possibly each suit would have had to be decided on its own particular facts. Clauses (4) to (6) were, it is clear, inserted in order to prevent an impasse of this kind arising. Another consideration, however, may also have weighed with the Constituent Assembly. In the history of India an interregnum occurred between the 15th of August, 1947, and the 26th of January, 1950. The Constitution under which we lived during this brief period was very different to the Constitution under which we had lived hitherto. The conduct of the Governor-General and of the Governors of Provinces ceased to be regulated by the instructions which had been passed under the “Royal Sign Manual and Signet” to their predecessors. Sections 13 and 53 of the Government of India Act, 1935, were deleted. So also were the concluding words of section 76(1) requiring the Governor-General, in certain circumstances, to reserve bills for the signification of His Majesty's pleasure thereon. The result, clearly, was that if the impugned Act, which was introduced into the Legislature on the 30th of December, 1949, had been introduced and passed into law sooner than it was, or if the Constitution had been adopted later than it was the impugned Act would, at the commencement of the Constitution, have been an existing law which however, would have become void in consequence of what is contained in Article 13(1) of the Constitution. The Constituent Assembly, in enacting clause (4) of Article 31, obviously desired to ensure that the time which the State Legislature had spent over the enactment of the impugned Act should not necessarily be altogether wasted, and that in certain circumstances, or subject to certain conditions, the Act should not be void. What exactly these circumstances or conditions were is the narrow point which we are called upon to decide. It is extraordinary that when the point at issue is so narrow a one, and when barely twelve months have elapsed since the adoption of the Constitution, the arguments before us should have occupied some ten days, and should have involved the citation of one hundred; and fifty or more authorities. The explanation is to be found in the fact that the Indian Constitution is not, as were originally most written Constitutions, the Constitution of a political entity, which, until immediately before it was adopted, had no separate existence. Nor is it, as was the American Constitution, a tiny organism intended to expand and grow with the passage of time into something very much bigger and perhaps something very different. India was already, and had for long been, a highly centralised State. The Constitution embodied in the Government of India Act, 1935, was if I may change the metaphor, an elaborate piece of machinery so designed that, with the removal or replacement of comparatively few parts it was capable of being transformed into a Constitution similar to that of the dominions of the British Commonwealth. In point of fact, the necessary alterations were made in 1947. In 1950, however, while the Basic structure of the machinery was left more or less intact, certain new devices were introduced into it which were borrowed from constitutional machinery of a radically different pattern. It is in consequence of this that Mr. P.B Das for the plaintiffs has been able to put forward, with a great show of plausibility, most of the arguments which have been addressed to us. In dealing with these arguments it is essential to bear in mind how the Constitution came to be evolved. If we fail to do so, we may be in danger of clutching at the shadow and missing the substance.
It is well recognised in the United Stated of America and also in the Dominions of Canada and Australia that a law made in excess of the power conferred on the Legislature is not a law at all. Any one may disregard it. No doubt the individual who disregards it may find himself involved in litigation but the law is not a valid law unless and until it is pronounced by a Court of law to be unconstitutional. It is void ab initio. Relying on this principle Mr. P.R Das contends that the impugned Act is not, and never has been, a law as there is no power conferred by the Constitution on the Bihar Legislature to enact it, and that, in consequence, the Government of Bihar is not entitled to rely on it as authorizing it to take possession of his clients' estates and tenures. The subject-matter of the impugned Act is not, Mr. Das vehemently contends,
“Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.” (Item 13 in List II.)
There are, it is said, no latifundia in Bihar. The plaintiffs are not the owners of vast demesne lands, which they cultivate through an army of labourers, paying subsistence wages to the labourers and appropriating and selling at great profit the crops grown by them. It may, perhaps, be that some of the parti land, of which the State is to take possession, may prove to be culturable, and a small number of landless men may be settled on it. But it is not even suggested that the powers taken by the State under the impugned Act will result in a more equable distribution of land, or, in any very considerable area of land becoming available for distribution to cultivators who, for one reason or another, have been reduced to the position of landless labourers. Nor, Mr. Das contends, with almost equal vehemence, is the subject-matter of the impugned Act.
“Acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III” (Item 36 in List II).
The Government of Bihar has, it is said, taken powers under this Act, and intends, to expropriate nearly one and a half million of property owners. The scheme is so vast that, in the nature of things, it cannot possibly be carried to completion in the immediate, or even the near, future. Years must elapse before the great number of states and tenures are taken over by the State, and during this period, hundreds of thousands, and possibly, several millions, of citizens, whose sole means of livelihood is the income which they derive from their, property, will be left in suspense, unable to raise, money on the security of it and not knowing at what precise moment they are to be dispossessed. That, Mr. Das says, is not acquisition but spoliation, and that is so, is made still more clear by the provisions contained in the Act relating to the payment, or rather to the partial cancellation, of debts secured on estates and tenures.] In this part of his argument Mr. Das relied strongly on Gallagher v. Lynni(1). The question that arose in that case was whether or not the Legislature of Northern Ireland had exceeded the power conferred on it by the British Parliament, or to be more strictly accurate, whether, in enacting certain legislation, it had acted in contravention of an express prohibition contained in the Act, constituting it. The decision, however can have no application unless it is conclusively shown either that the subject-matter of the impugned Act comes under one or other of the entries between entry no. 1 and entry no. 96 in the Union List or that it does not or cannot come under any entry in the. State List, in which latter case, of course, the subject-matter would come under entry no. 97 in the Union List, which is the residuary entry, and Parliament alone would have been competent to enact it. Mr. Das did not and could not make any serious attempt to do this. As was pointed out by the Judicial Committee in Megh Raj v. Allah Rakhia(2) land is primarily a matter of provincial concern, and it is abundantly clear that it was the intention of the Constituent Assembly, as it had also been the intention of the British Parliament, that bills of which the object was land reform should be introduced in, and passed into law by the provincial Legislature, and not by the Central Legislature. The provisions in the Instruments of Instructions to the Governor-General and to the Governors of Provinces show that this was so in the one case, and clause (4) of Article 31 of the Constitution shows that this was so in the other. We may not be entitled to refer to the debates which took place in the Constituent Assembly when Article 31 was finally adopted, for the purpose of construing any part of that article, but we are entitled to refer to them for the purpose of ascertaining why so very extraordinary provisions as clauses (4) and (6) of Article 31 were inserted in the Constitution at all. [See. Attorney-General for Alberta, and Attorney-General for Canada]. Once it is established that it was the intention of the makers of the Constitution that land reform should be a subject for provincial legislation, it seems to me of little moment whether the impugned Act was made in exercise of the one power or in exercise of the other, or whether it was made partly in exercise of the one and partly in exercise of the other. I agree, however with the learned Attorney-General that entry 18 is more directly applicable than entry 38. The impugned Act no doubt, states that estates and tenures are to pass to and become vested in the State, but, as I have already pointed out, in actual fact certain rights of proprietors and tenure-holders are to be extinguished and others are to be modified, and so far as part at least of their property is concerned, their possession is not to be disturbed. Section 299 of the Government of India Act was drawn in the way it was because the British Parliament drew a distinction between the acquisition of land for public purposes, and schemes of land reform involving the transference of land to public ownership. It contemplated that schemes of land reform would necessarily involve the payment of compensation to persons adversely affected, but it did not contemplate that the insertion of provisions in a land reform bill for the payment of compensation, would of necessity, make the bill also a bill for the compulsory acquisition of land. In fact, it was in order to prevent such a contention being raised in the courts that, sub-section (3) of section 299 was enacted, and that instructions were issued to the Governor-General to reserve for the signification of His Majesty's pleasure bills which involved an alteration in the character of the Permanent Settlement. It is not without significance that the word, etc., appears in the marginal note to section 299 after the words “compulsory acquisition of land”. Under the Constitution contained in the. Government of India Act, 1935, compulsory acquisition of land was a provincial subject. There was no similar entry in the Federal Legislative List, presumably because section 127 required the provinces to acquire land compulsorily for the purposes of the Central Government. Under the Constitution power is conferred both on the Union and on the States, and for that reason both are also given power to legislate regarding the principles to be followed in assessing compensation for land which is compulsorily acquired. An elaborate and very subtle argument has been addressed to us by Mr. Das, which is based on the words “subject to the provisions of entry 42 of List III” which occur at the end of entry 36. I agree with Mr. Das that these words indicate the existence of condition or a restriction on the power of the State Legislature, and that when a State Legislature ignores that condition or restriction, its purported law is a nullity; but I cannot agree that the condition or restriction is imposed by the concluding words in the entry. It is really imposed by clause (2) of Article 31 of the Constitution. The same condition, or restriction exists on the power, of Parliament itself, and yet there is nothing in entry 33 in List I to show that. Under the Constitution the validity of a law may be challenged in one or other of two ways. It may be challenged on the ground that, in enacting it, the Legislature, which did so has usurped the jurisdiction of another Legislature. It may also fee challenged on the ground that, in enacting it, the Legislature has exercised a jurisdiction which the Constitution forbade either it or any other Legislature to exercise. The Articles in the Constitution which confer on the citizens of India certain fundamental rights are themselves a fundamental law, that is, a law which does not so much confer rights or impose duties, as a law which lays down the norm or standard by which the validity of all other laws is to be tested. The impugned Act deals with a subject over which the State Legislature had legislative jurisdiction. Has it nevertheless so dealt with the subject as to transgress one of the fundamental laws embodied in the Constitution? Certain affidavits have, been put in by or on behalf of the Maharajadhiraja of Darbhanga. One of these affidavits shows that a part of the estates of the Maharajadhiraja was acquired under sale deeds, and that the aggregate of the consideration money given for these sale deeds was Rs. 89,96,528, and that, so far as another part of the property affected by the impugned Act is concerned, the Maharajadhiraja is in possession as a usufructuary mortgagee, the aggregate amount of the money secured by the various mortgage deeds being Rs. 59,16,282. Another affidavit shows that the amount of compensation which will be payable to the Maharajadhiraja will be Rs. 8,89,452. The same affidavit shows that the arrears of rent due to him amount in the aggregate to Rs. 30,80,967. Now, under the impugned Act, these arrears of rent are to be collected by the State, and the State is to pay over to the Maharajadhiraja only one-half of the amount due. In effect, therefore, the Maharajadhiraja will receive no compensation whatever for the property of which the State deprives him, and will, in addition, be deprived of a part of the arrears of rent due to him. An affidavit has been put in on behalf of the petitioner in M.J.C 239 of 1950stating that, while, under the scheme adopted in the impugned Act, the gross assets of his estate amount to Rs. 10,06,259, the deductions to be made will aggregate somewhat more than that, namely, Rs. 10,26,108. No counter affidavits have been put in, and the learned Attorney-General could only say that, in particular cases, the results arrived at might be very inequitable, but that, nevertheless, as the impugned Act laid down the principles on which compensation was to be assessed, its validity could not be challenged, Clearly, however, it is necessary to inquire whether the principles of compensation, embodied in the Act are, in fact, principles of compensation, in the sense that, by the application of them, the compensation which proprietors and tenure-holders will receive will be what the law regards as compensation. Fletcher Moulton, L.J in In re an Arbitration between Lucas and the Chesterfield Gas and Water Board explained the meaning of the expression compensation thus:
“The principles upon which compensation is assessed when land is taken under compulsory powers are well settled. The owner receives for the lands he gives up their equivalent, i.e, that which they were worth to him in money. His property is therefore not diminished in amount, but to that extent it is compulsorily changed in form. But the equivalent is estimated on the value to him, and not on the value for the purchaser, and hence it has from the first been recognized as an absolute rule that this value is to be estimated as it stood before the grant of the compulsory powers. The owner is only to receive compensation based upon the market value of his lands as they stood before the scheme was authorized by which they; are put to public uses. Subject to that he is entitled to be paid the full price for his lands, and any and every element of value which they possess must be taken into consideration in so far as they increase the value to him.”
Now, in arriving at the net annual income of the proprietor or tenure-holder who is to be expropriated, the Act directs that from his gross annual assets deductions shall be made on account of the expenses of management and on account of works of benefit to the raiyats. The former deduction may amount to as much as 20 per cent., and the latter to as much as 12½ per cent, of the gross annual assets. In certain parts of the province proprietors or tenure-holders may be under a legal obligation to maintain irrigation works, but so far as I am aware, no proprietors or tenure-holders are under, a legal obligation to expend, as much or nearly as much as 12½ per cent, of the gross receipts from their estates or tenures on such a purpose. Again, while the impugned Act takes into, account the income derived from fruit bearing trees, it does not take into account the value of standing timber, still less, the existence of mineral deposits. As is shown by the affidavit which has been put in on behalf of the Maharaja of Chota Nagpur, who is the petitioner in M.J.C 232 of 1950, such deposits may be very valuable indeed. Finally, the number of years' purchase is to very from twenty years in the case of the smallest proprietors and tenure-holders to three years in the case of the plaintiffs. It is quite Obvious that it is impossible for the latter to find any investment which can give them 33 per cent, or indeed anything approaching that. Although, as I have pointed out, under the Constitution compensation need not necessarily be in money, nevertheless, it was, I have not doubt, intended by the Constituent Assembly when it enacted-Article 31(2) that whatever, compensation was made, it should be something which could fairly be said to be equivalent in value to the property taken over by the State.
Mr. P.R Das also attacked the impugned Act on the ground that the purpose for which the estates and tenures of his clients were to be taken over was not, in law, a public purpose. There is, Mr. Das points out, no recital in the impugned Act that it is enacted for a public purpose, nor is it possible to collect from what is contained in it the existence of any public purpose. All that the impugned Act does, Mr. Das says, is to augment the public revenues. Practically the whole of the culturable land in the province is, it is asserted, already in the possession of professional cultivators, who pay a rent which is fair rent, and who enjoy fixity of tenure and freedom of transfer. They will continue to pay the same rent as they do at present. It will merely be collected by another agency which may be less efficient and more ruthless than the old, and in order to meet the ever growing expenditure of the State, rents may soon have to be raised. On such grounds, Mr. Das invites us to say that, in the words of Lord Dunedin in Hamabai Framjee Petit v. Secretary of State for India, the scheme embodied in the impugned Act is not one “which will redound to public benefit.” In this part of his argument Mr. Das also relieved on Province of Bombay v. Khushaldas S. Advani, and on a number of passages in Cooley's Constitutional Limitations. It is one thing to say that the judicature is entitled to question the correctness of a decision by the executive that the purpose for which in exercise of a power conferred on it by the Legislature, it proposes to acquire property is a public purpose, which was what was decided in the Province of Bombay v. Khushaldas S. Advani to say that when, as here, the Legislature has itself decided to acquire property, the judicature may question the propriety of its decision, at all events, in cases where the legislation embodies a scheme designed to advance the general welfare. As to the American decisions cited, these cannot be of assistance and in fact, are merely likely to mislead. Under the American Constitution property of all kinds, including land, is sacrosanct. In Kent's Commentaries, fourteenth edition, Volume II, page 340, it is stated that “if they (i.e, the Legislature) should vacate a grant of property, or of a franchise, under the pretext of some public use or service, such cases would be gross abuses of their discretion, and fraudulent attacks on private right, and the law would be clearly unconstitutional and void.” But under our Constitution land, or certain kinds of landed property, are not sacrosanct. On the contrary the Constituent Assembly, by enacting clauses (4) and (6) of Article 31, gave their, express approval to legislation abolishing the. Permanent Settlement, and extinguishing certain rights in land. Whatever our own views may be, we must, in my opinion, regard the scheme embodied in the impugned Act as a scheme intended to benefit the public. We cannot shut our eyes to the patent fact that the makers of the Constitution regarded it as likely to do so. Whatever construction may eventually have to be put on the expression “public purpose” in Article 31(2) is immaterial. We are, in my opinion, estopped from saying that the acquisition of estates and tenures is not an acquisition for such a purpose. That it is, has been decided by the Constituent Assembly itself.
Finally, it has been contended by Mr. Das that the impugned Act is void as it is a piece of legislation which is expressly prohibited by Article 14 of the Constitution. Article 14 is based on, and largely reproduced, the language used in the fourteenth amendment to the Constitution of the United States of America. That amendment was adopted after the war of secession because, in the Southern States, the negro population had never enjoyed equality with the white race in the courts of law. The American Constitution is a very brief instrument couched in very general language, and the framers of it and also the framers of the amendments were content to leave a very great deal to the courts. In the period of very nearly a century which has elapsed since the fourteenth amendment was adopted the language used in it has been interpreted in an ever growing variety of ways in order to make it applicable to the rapidly changing conditions of American life. How far these decisions may legitimately be called in aid in construing Article 14 of our Constitution remains to be seen. The Supreme Court, in Charanjit Lal Choudhry v. The Union of India, decided on the 4th of December, 1950, has, however, held that Article 14 prohibits, as the Supreme Court of America has long since decided that the fourteenth amendment prohibits, legislation which is discriminatory and is hostile to an individual or class of individuals. Legislation which affects only one particular class is permissible so long as it does not discriminate against individuals within the class, and so long as it can be said that such a class does, in fact, exist that is, that there is something to distinguish the individual citizens composing it from all other citizens. It is, I think, clear that proprietors of estates and tenure-holders may be said to form a distinct class, in that they all enjoy an income, which is an unearned income, and that, they derive this unearned income from land, which economists have uniformly regarded as standing on a different footing from other kinds of property. The impugned Act, however, discriminates between individuals falling within the class which it affects. In fact, it divides the class into a large number of sub-classes, and to these, sub-classes, differential treatment is meted out. It is quite impossible to say that this sub-division is based on any rational grounds. On what principle, for instance, ought a proprietor or tenure-holder, whose net income is Rs. 20,000, to be given eight years' purchase, while a proprietor or tenure-holder, whose net income is Rs. 20,001 is given only six years' purchase? At one end of the scale are a vast number of proprietors and tenure-holders who are to be allowed twenty years' purchase. It is common knowledge that many small proprietors have a relatively large area of bakasht land in their estates and that, in recent years, they have had difficulty in collecting such rents as are payable to them. As the net income is to be computed, not on the income actually received, but on the income that ought to have been received if all raiyats had paid their rent, such small proprietors, who are to retain their bakasht land, are likely to receive adequate, and possibly more than adequate, compensation. At the other end of the scale are the great zamindars who are be allowed three years' purchase and as I have already pointed out, the result, at least in certain cases, will be that these men will not merely be deprived of their land, but will also be deprived of considerable sums of money which are due to them. The impugned Act confers power on the executive to take over estates and ten ares as and when it chooses. The Bihar Zamindari Abolition Act, 1948 which the impugned Act replaced, contained a provision that when any estate or tenure belonging to a particular category was taken over, all other estates and tenures belonging to that category should be taken over also. I can well understand that such a provision may have led to administrative difficulties. Nevertheless, the provision in the impugned Act, which confers the wide power it does on the executive, is clearly discriminatory in character, and there is an obvious danger, that, when the smaller estates come to be taken over and decisions as to whether particular estates should or should not be taken over have to be made on the recommendation, in the ultimate analysis, of quite subordinate officials, grave abuses may result. The difficulty which has been experienced in other countries in carrying out reforms, the object of which is to ensure that the whole of the land in the State will be in the possession of professional cultivators who are likely to make the best use of it, has been the difficulty of providing the funds necessary to expropriate the, landlords. The charges for interest on loans raised in order to provide the money necessary were, it has usually been felt, likely, to endanger the financial stability of the State. One extraordinary feature in the scheme embodied in the impugned Act is that it makes no provision whatever for the raising of money. 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 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 may receive compensation which will not be inadequate and may, quite possibly, in many cases, be more than adequate. The learned Attorney-General was unable to deny that this amounted to discrimination of a very flagrant kind, but put forward two arguments in support of his contention that nevertheless the validity of the impugned Act could not be assailed at present. In dealing with Yick Wo v. Peter Hopkings, on which Mr. P.R Das has strongly relied, the learned. Attorney-General pointed out that in that case there had already been discrimination, and suggested that, unless and until an estate or tenure had been actually taken over, the owner was not entitled to come to the courts and ask for relief. It is, no doubt true that Mathews, J., relied on the manner in which the ordinance had been administered as going to show that “though the law, itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution”. It is, however, clear that the ground on which the petitioners were ordered to be released from custody was that the ordinance, under which they had been imprisoned, was held to be unconstitutional and void and the decision was later so understood by the Supreme Court itself. [Vide Homer Adolph Plessy v. John H. Ferguson. The other argument put forward by the learned Attorney-General is that the impugned Act is, or is very much in the nature of a tax law, and that tax laws may operate inequitably, and yet nevertheless be constitutional. It seems to me quite impossible to say that the impugned Act is or is in the nature of a tax law. It cannot be regarded as a law imposing a levy on capital, and clearly, if it is so regarded, it is a levy, not on the whole capital or the persons affected, but only on a portion of their capital. The great zammdars, or some of them, may have invested much of the income which they have derived from their estates in stocks and shares, or in businesses of various kinds, and if they are now, deprived of their estates, may still have ample means left to them. On the other hand, there must be other zamindars belonging to the middle classes, who have used their sayings to enlarge their zamindaris. Such men may have little or no other property, and may, when their zamindaris are taken over, be reduced to poverty. In other words, if the impugned Act can at all be regarded as in the nature of a tax law imposing a levy on capital, it operates with such patent inequality that it would be void under Article 14 of the Constitution. It will serve no useful purpose to refer to the numerous American decisions which were cited, as for the most part they were cited in the Supreme Court and have been dealt with in the decision of the Supreme Court on which I rely. I ought, however, to make an exception in the case of two decisions, namely, George O. Campbell v. State of California and Jessie Norton Torrence Magoun v. Illinois Trust and Savings Bank. The question that arose in each of these cases was the validity of State legislation imposing a graduated tax on inheritances. The legislation was, in each case, upheld. But the ground on which it was upheld was that the State, in exercise of its plenary power to regulate inheritances, could take more from one class of heir than from another. Brewer, J., who delivered a dissenting judgment in the earlier case, observed, “It seems to be conceded that if this were a tax upon property such increase in the rate of taxation could not be sustained, but being a tax upon the succession it is held that a different rule prevails”, and concluded his judgment with the following remarks “…………by this status upon property passing in accordance with its statutes a tax is imposed, a tax unequal because not proportioned to the amount of the estate; unequal because based upon classification purely arbitrary, to wit, that of wealth a tax directly and intentionally made unequal. I think the Constitution of the United States forbids such inequality”. I must confess that have found it difficult to understand and have been unable to discover why Article 14 was inserted in the Constitution. So far as I am aware, there was in 1950, no class of persons anywhere in India who were subjected to such discrimination before the law as, in 1867, the victorious Northern States apprehended the negro population of the Southern States might be subjected to. Article 14 occurs at the beginning of a series of five articles which appear, under, the heading “Right to Equality” and having regard to the succeeding articles, I should have been disposed myself to think that what the makers of the Constitution had in mind were potential evils of the kind which the American people aimed at when they adopted the fourteenth amendment. There are a number of articles in the Constitution which rather express the ideals of the makers than aim at existing evil or evils which are likely to arise. The Supreme Court has, however, given to the article the extended interpretation which has been put on the fourteenth amendment in modern times in America. I am bound by that decision and am constrained to hold that the impugned Act is unconstitutional as it transgresses Article 14.
Section 32(2) of the impugned Act provides 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 negotiable or non-negotiable and non-transferable and be payable in forty equal instalments and shall carry interest at two and a half per centum per annum. Clause (p) of section 43(1) empowers the Provincial Government to make rules as to the “proportion in which compensation shall be payable in cash and in bonds and the manner of payment of such compensation.” These provisions are in direct contravention of clause (2) of Article 31 which requires that if payment is to be made in bonds, this provision must be made in the Act itself, and not in rules made under the Act. It is immaterial that the Provincial Government may intend to make payment in cash, but cannot at the moment foresee whether it may not eventually be necessary to make payment in bonds, and it is also immaterial that, if the Act were to provide for payment in money and had later to be amended, amendment might be a matter of perhaps insuperable difficulty. Mr. P.R Das, however, does not invite us merely to say that these provisions in the impugned Act, transgress clause (2) of Article 31. Mr. Das invites us to go a very great deal further. What the learned Counsel contends is that so wide a delegation of legislative power, whether contained in an Act relating to the acquisition of property for public purposes, or in any other Act on a subject within the legislative jurisdiction of the State, is impliedly prohibited by the Constitution. Further Mr. Das contends, these provisions are not severable from the rest of the impugned Act, and in consequence if they are void, the Act as a whole is necessarily void, and the provisions contained in clause (4) of Article 31 cannot validate it. Reliance was mainly placed by Mr. Das on the recent decision of the Supreme Court in the State of Bombay v. Narottamdas Jethabhai. It is to be observed that the Act, the validity of which was there challenged, was an Act made under the Constitution embodied in the Government of India Act, 1935, and its validity was upheld on the ground that it was a piece of conditional legislation, that is, that the Legislature had itself decided what the law should be and had merely left it to an external authority to decide when the law should be brought into operation. There is nothing in the judgment to suggest for a moment that when an Act delegating legislative power cannot properly be described as a piece of conditional legislation, the delegation is void and the Act is, or may be void as a whole. A decision which, in my opinion, is more in point is Archibald G. Hodge v. The Queen. That decision is, I think, more directly applicable because there was in it a real delegation of legislative power, that is of a power to make rules which should have the force of law, and not merely a power to decide when or in what local areas, an Act should come into operation. The validity of the delegation in that case was challenged on the ground that the Ontario Legislature was a creation of the British Parliament, and the maxim delegatus non-potest delegare applied. In repelling this contention Sir Barnes Peacock made the following observations:—
“It appears to their Lordships, however, that the objection thus raised by the appellants is founded on an entire misconception of the true character and position of the provincial Legislatures. They are in no sense delegates of or acting under, any mandate from the Imperial Parliament. When the British North America Act enacted that there should be a Legislature for Ontario and that its Legislative Assembly should have exclusive authority to make laws for the Province and for provincial purposes in relation to the matters enumerated in section 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by section 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local Legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Dominion would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make bylaws or resolutions as to subjects specified in the enactment and with the object of carrying the enactment into operation and effect.”
There is clearly no room for the application of the maxim delegatus non-potest delegare under the Indian Constitution. If a delegation of legislative power is prohibited it must be prohibited on quite another ground, namely, that in the Constitution, as indeed perhaps in every written Constitution, there is to some extent a separation of governmental powers, that is of the Legislature, the executive and the judiciary. The preamble to the Constitution no doubt states
“We the people of India, having solemnly resolved to constitute India into a Sovereign Democratic Republic………….do herein adopt, enact and give to ourselves this Constitution”
in the same way as the preamble to the American. Constitution states that
“We the people of the United States………do ordain and establish this Constitution for the United States of America”.
But the Indian Constitution, like the Constitution of Canada, which in its preamble contains a recital that the
“Provinces…………have expressed their desire to be federally united into one Dominion………with a Constitution similar in principle to that of the United Kingdom”
sets up a system of Parliamentary Cabinet Government as opposed to the system of Presidential Government in the United States. The contention has been put forward in several cases in the High Court of Australia that the separation of governmental powers under the Australian Constitution imposes limitations on the power of the Legislature to delegate legislative power. The leading decision is the Victorian Stevedoring and General Contracting Company, Limited v. Dignan in which very elaborate judgements were delivered by Dixon, J. and Evatt, J. It will serve no useful purpose for me to add to the length of this judgment by referring in detail to the grounds on which the decision was based. The conclusion arrived, at may be succinctly stated in the language used by Dixon, J. (page 101 of the report) that “a statute conferring upon the executive power to legislate upon some matter contained within one of the subjects of the legislative power of the Parliament is a law with respect, to that subject and a distribution of legislative, executive and judicial powers in the Constitution does not operate to restrain the power of the Parliament to make such a law”. The power to delegate legislative power, it has been said, is implied in the idea of parliamentary sovereignty itself. As at present advised, I am not prepared to say that such restrictions as may exist on this power under the constitution are greater than the very limited restriction which in the opinion of the High Court of Australia, exists on the Australian Legislatures. The impugned Act is an Act on a subject within the legislative jurisdiction of the Bihar Legislature, and the provisions which are now assailed must be regarded as containing merely a delegation of a power to legislate on what the Legislature considered, were points of detail relating to the scheme embodied in the impugned Act. It may have been unwise of the Legislature to delegate so wide a power to the executive without imposing some restriction so as itself to be able to control the exercise of the power as for instance, by providing that any rules made should be laid before Legislature and should not become operative unless and until they were confirmed by resolution. That, however, is a political matter, and not a matter for the courts.
I come now to what is the real crux of these cases, namely, the scope and the effect of clause (4) of Article 31 of the Constitution. It is easy enough to understand why clause (4) and also clause (6) were, inserted in Article 31. The reasons were substantially the reasons which had led the British Parliament, in enacting the Government of India Act, 1935, to deal in one way with land reform schemes which involved the payment of compensation and in another way with the acquisition of land for public purposes. It is a matter of the very greatest difficulty to assess the market value of Zamindari property which is extensive and which contains a great deal of standing timber or mineral deposits. The Courts have found an almost insuperable difficulty in dealing with cases of this kind arising under the Bihar Money-lenders' Act. Again, in carrying out a scheme of land reform, such as is embodied in the impugned Act, it is, or may be impracticable to give compensation in money or to give compensation which represents the market value of the property taken over. Indeed, there may be valid reasons for giving compensation which does not represent by any means so much as the market value, and is not in law an exact equivalent. It is obvious that if clauses (4) and (6) had not been inserted in Article 31, there would have been almost endless litigation. Mr. P.P Das for the plaintiffs contends that the real object of the Constituent Assembly was to prevent such litigation, and that it was intended that the compensation which was to be given should be something which could fairly be described as compensation by any reasonable layman, although not perhaps by a lawyer applying the principles embodied in the Land Acquisition Act. It cannot possibly, it is said, have been intended that certain persons affected by the Act should receive nothing or practically nothing at all. Nor can it have been intended that one co-owner of a property should receive three twentieths of the compensation given to another co-owner whose interest in the property was exactly the same, as his. Mr. Das went on to contend that, in so far as the impugned Act purported to lay down principles of compensation and yet produced results so palpably inequitable, it amounted to a fraud on the Constitution and that this Court was not merely entitled but was bound to declare it to be unconstitutional. In putting forward this argument Mr. Das, appears to have had in mind certain observations made by prominent members of the Constituent Assembly in the debate which took place when Article 31 was adopted. But we are not entitled to turn to these debates in order to discover what the language used by the Constituent Assembly in enacting clause (4) of Article 31 means. As Latham, C.J, observed in the State of South Australia v. The Commonwealth “Members of Parliament frequently have differing opinions, not only as to the merits and real objects of Bills presented, but as to their meaning. Neither the validity nor the interpretation of the statute passed by. Parliament can be allowed to depend upon what members, whether Ministers or not choose to say in Parliamentary debate.” Quite apart from this, this court is, under the Constitution either under a duty to interfere or under a duty to refrain from interfering. It has no discretion whatever in the matter. Mr. Das was on somewhat firmer ground when he contended that it was the duty of the advisors of the President to examine a land reform bill, or indeed any reserved bill from certain standpoints, and that, in this particular case, either there had been no such examination, or the President had been wrongly advised to give his assent. In so far as the assent of the President had been wrongly and improperly obtained a fraud had, Mr. Das again said, been committed on the Constitution and this court as the upholder of the Constitution, was bound to interfere. The reservation of bills for the assent of a higher authority is not a mere matter of procedure. It is an essential and important part of the law-making machinery set up by the Constitution. It is a device which has been used for many decades in the Constitutions of the colonies and dominions of the British Commonwealth and was used in the Constitution embodied in the Government of India Act, 1935. The position under the Indian Constitution is exactly the, same as under the Canadian Constitution, the reason no doubt being that in India, as in Canada, the States and the Union have, in an extensive field, concurrent powers of legislation. From a very early period in the development of the Canadian Constitution it was recognised that when a bill was reserved for the consideration of the Governor-General, it was the duty of the Law Officers of the Dominion to examine it with a view to ascertaining whether, in the first place, it was unconstitutional in whole or in part, and secondly, whether if assent was given to the bill the differences between the law obtaining in the province, to which the bill applied and the law obtaining in other provinces would be merely differences in point of detail rather than in principle. (See Egerton's Federations and Unions in the British Empire, footnote 2 at page 145). It may I think, safely be assumed that when bills are reserved by the Governors of the States in India for the consideration of the President, they are intended to be examined by the Law Officers of the Union from that standpoint. It is obviously desirable, that in matters over which the Union and the States, alike have legislative jurisdiction, there should be a certain degree of uniformity in legislation and also, that assent should not be given to a bill if there is any serious probability of its being eventually pronounced to be unconstitutional by the courts. clause (3) of Article 31 suggests that bills relating to the acquisition of property for public purposes are intended to be subjected to a more than ordinarily careful scrutiny of this kind. Bills on other subjects in the Concurrent List if assented to by the Governor, take effect, and if they do not conflict with provisions contained in an Act of Parliament, are constitutional. Bills relating to the acquisition of property for public purposes are however, to be wholly inoperative unless and until they have been assented to by the President. The President, Mr. Das says, has given his assent to three land reform bills passed by three State Legislatures. There is no uniformity in this legislation, and so far as the impugned Act is concerned, it, in certain cases at least provides for no compensation at all. Mr. Das concedes that a certain latitude was intended to be given to the President as, for instance if the provisions relating to compensation were such that a reasonable man, untrammelled by considerations which would, or might weigh with a lawyer, could or might, consider them as fair to the Zamindars and also to the State. But Mr. Das contends the latitude given has been greatly exceeded. The assent given to the bill has not been given in a proper exercise of the President's discretion in accordance with the principles which under the provisions of the Constitution relating to the reservation of bills. In this part of his argument Mr. Das referred to Maharaja Luchmeshwar Singh v. The Chairman of the Darbhanga Municipality and Mayor of Westminster v. London and North Western Railway Company The former decision is not in point, and the question that arose in the latter was whether or not a statutory body had exceeded the limits of the authority conferred on it. There is a palpable difficulty in the way of applying that decision in the present case. The broad principles on which assent is intended to be given to or withheld from a reserved bill may be easily deducible, but they are not specifically laid down in the Constitution. The result of this is that it is not open to the courts, to question the propriety of the President's action. Even under the pre. 1947 Constitution, in which the Governor-General was bound by his Instruments of Instructions to withhold his assent from certain bills, a bill assented to in contravention, of these instructions could not be challenged in the courts as unconstitutional on that ground [vide section 13(2) of the Government of India Act, 1935]. Again whatever may have been said in the debates in the Constituent Assembly, I am unable to accept the contention that, when anything in the nature of a fraud has been committed on the Constitution, there is some inherent power in the courts to interpose and prevent the fraud taking effect. As I said a moment ago, this court is under a duty either to pronounce the impugned Act as unconstitutional, or is, by reason of what is contained in Article 31(2) under a duty to refrain from doing so. It is, I think clear that the courts were not intended to obey and enforce this Act in precisely the same manner as the Courts in England are bound to obey and enforce any Act of Parliament. Before the Constitution was adopted the Legislature of the United Provinces had enacted a similar statute which under the Constitution in force during the interregnum between the 15th of August, 1947, and the 26th of January, 1950, it undoubtedly had power to enact. Nevertheless, the Constitutent Assembly, instead of inserting a proviso to Article 13(1) of the Constitution that the Statute should not be void when the Constitution came into operation chose instead to enact clause (6) of Article 31. Even if it had been intended that the Act should be subjected to scrutiny by the Law Officers of the Union still, if it was intended wholly to oust the jurisdiction of the courts, one would expect provision to have been made in Article 13(1). On the other hand, it is equally clear that it was intended to take away from the courts the power to pronounce that Act and also the impugned Act to be void on the ground that they do not “specify the principles on which and the manner in which, compensation is to be determined and given”. It may be said that a power conferred on the President to assent to and thereby render non-justiciable a bill which does not provide for compensation, or provides for wholly inadequate compensation, necessarily involves a power to assent to and thereby render non-justifiable a bill which gives relatively large compensation to one set of persons affected by it and little or no compensation to another set of persons. Article 31(4) does not however, in terms confer a power, on the President. What it does is to take away a right of action from the citizen. The plaintiffs may not be entitled to ask for relief oil the ground that the principles of compensation specified in the impugned Act are such that they will, in fact receive no compensation at all nor on the ground that the impugned Act does not specify how payment is to be made to them of the amount which is euphemistically described as compensation. They ask, however, in the_ alternative for relief on the ground that the impugned Act specifies different principles of compensation for different categories of persons affected by the Act, the sub-division of such persons into categories being wholly artificial or irrational one. They are not raising, a purely technical point but are complaining of a serious grievance. If the impugned Act had specified one set of principles of compensation applicable to all persons affected by the Act, and not different sets of principles the plaintiffs would have received much more and numerous other persons would have received much less. The bigger, zamindars are to be given little or no compensation in order that the smaller zamindars may be given adequate compensation. That is in invasion of the plaintiffs' right to equality as that right has been interpreted by the Supreme Court. I had occasion to point out earlier in this judgment that the basic principles on which compensation is given when land is compulsorily acquired for purposes of the State is that the owner shall not be compelled indirectly to contribute more than any other citizen to the expenditure incurred. There is nothing in Article 31(4) to suggest that the Constituent Assembly intended that in a scheme of land reforms involving the payment of compenastion this basic principle might be completely ignored. If, the State is prevented from invading the plaintiffs' right to equality, it is material that the State is indirectly prevented from invading their right to property which it could have invaded if it had not, in doing so, also invaded their right to equality. In my opinion, it is not. The one fundamental right cannot be said to be merely a part of the other; they are separate and distinct. It has also to be remembered that the impugned Act is not an Act which the Legislature has made and the President has assented to in the belief that it is a constitutional law. It is an unconstitutional law enacted in the belief that the right of the plaintiffs to challenge it and ask for relief from its operation has been taken away. The onus was on the State to show that this was so, and this onus has not been satisfactorily discharged.
In the result, then, I would answer the issues which have been raised in the following manner:
Issue no. 1::—
The subject-matter of the Bihar Land Reforms Act of 1950 (Bihar Act XXX of 1950) is a subject-matter within the legislative jurisdiction of the Bihar Legislature.
Issue nos. 2 and 4:—
The said Act is unconstitutional on the ground that it transgresses Article 14 of the Constitution and on no other ground. Clause (4) of Article 31 does not debar the court from entering into the question of compensation in order to decide whether or not the impugned Act offends, against Article 14.
Issue nos. 3 and 5:—
As the impugned Act is an unconstitutional Act, the properties of the plaintiffs have not vested in the State of Bihar. The plaintiffs are entitled to decrees declaring that the Act is unconstitutional and to an injunction restraining the defendants from taking possession of their properties. They are also entitled to their costs.
In the Miscellaneous Judicial Cases which have been heard along with the suits the ad interim injunctions which have already been issued, will be made permanent. The petitioners in each of these cases are also entitled to their costs. The hearing fee is assessed to ten gold mohurs in each case.
Reuben, J.:— I have had the advantage of perusing the judgment prepared by my learned brother Shearer, J., and agree with the conclusion at which he has arrived but, in view of the importance of the issues involved, I shall give my reasons separately.
The points urged before us may most conveniently be dealt with under the following heads:
(1) What is the effect of the assent of the President under Article 31, clause (4) of the Constitution of India? Is the impugned Act entitled to protection by reason of such assent?
(2) Is the impugned Act void for an absolute want of legislative power?
(3) Is the impugned Act void as contravening the Fundamental Right guaranteed by clause (1) of Article 31 of the Constitution?
(4) Is the impugned Act void as contravening clause (2) of Article 31 by making no provision for compensation?
(5) Is the impugned Act void as contravening clause (2) of Article 31 by the absence of public purpose?
(6) Is the impugned Act void as contravening Article 19, clause (1)(f) of the Constitution
(7) Is the impugned Act void as contravening Article 14 of the Constitution?
(8) Is the impugned Act void by reason of the delegation of legislative power?
(9) Is the impugned Act void as being a fraud on the Constitution?
(10) Is the impugned Act void as being unenforceable?
Point no. 1.—Clause (4) of Article 31 provides that, if a Bill pending in the Legislature of a State at the commencement of the Constitution has been reserved, after it has been passed by the Legislature, for the consideration of the President and 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 protection given by the assent under this clause is similar to that given by a certificate under clause (6) of Article 31 to a law of a State enacted not more than 18 months before the commencement of the Constitution, namely, that it shall not be called in question in any Court on the ground that—
“it contravenes the provisions of clause (2) of this Article or has contravened the provisions of sub-section (2) of Section 299 of the Government of India Act, 1935”.
The words “notwithstanding anything in this Constitution” do not appear in clause (6); for the purposes of this case it is not necessary to consider if the omission is intentional and what is the effect of it. Clause (2) of Article 31 reproduces with modifications sub-section (2) of section 299 and for convenience of comparison I place them side by side:—
section 299, sub-section (2).
Article 31, clause (2).
Neither the Dominion Legislature nor a provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in or in any company owning, any commercial or industrial undertaking, unless the law provides, for the payment of compensation for the property acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, it is to be determined.
No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial 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.
Clause (2) is wider in its application than sub-section (2) in so far as it extends to property, movable and immovable, and to the requisitioning of property as well as to the acquisition thereof; this difference is irrelevant for the present enquiry. We are concerned with the two requirements which according to these enactments are essential for the validity of legislation of the type contemplated, namely—
(1) the acquisition or taking possession must be “for public purposes”, and
(2) the law must provide for compensation for the property taken and 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.
Are both these requirements “provisions” within the meaning of clauses (4) and (6) of Article 31? This question was recently before a Special Bench of this Court in M.D Sir Kameshwar Singh v. Province Of Bihar* and Das, JJ., held that only the latter requirement is a “provision” of sub-section (2) of section 299 within the meaning of clause (6) of Article 31. According to both these learned Judges the requirement of a public purpose is assumed by the sub-section to be inherent in compulsory acquisition and, therefore, the certificate under clause (6) protects only against a contravention of the second requirement. The position is exactly the same in clause (2) of Article 31, a conclusion in which I am supported by the observation of Mukherjee, J., in Charanjit Lal v. Union of India:
“One limitation imposed upon acquisition or taking possession of private property which is implied in the clause is that such taking must be for public purpose.”
Hence, the protection under clause (4) of Article 31 extends only to contraventions of the provision relating to compensation. Its operation even to this limited extent and, if it operates, the extent of its operation have been challenged before us; I will deal with the challenge in the appropriate place in my Judgment.
On behalf of the Government, it has been urged by the learned Attorney-General that the question of public purpose and compensation does not arise and no protection under Article 31, clause (6) is necessary. According to him, the impugned Act has been enacted not under entry 36 of List II and entry 42 of List III but under entry 18 of List II:—
“Land, that is to say, rights in and over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.”.
It is true that in Megh Raj v. Allah Rakhia Lord Wright held that the corresponding item no. 21 in List II of the Government of India Act, 1935, should be interpreted in the widest sense and includes mortgages of land as an incidental and auxiliary subject, but he qualified his observation about wide construction by adding—
“unless for some reason it is cut down either by the terms of item 21 itself or by other bars of the Constitution, which has to be read as a whole”.
In that case there was no express provision in the Constitution relating to mortgages. Here, on the contrary, we have special items relating to acquisition of property both in the Union List and in the List relating to the State. Similarly, Gwyer, C.J, in United Provinces v. Atiqua Begum observed that the subjects dealt with in the three legislative Lists of the Government of India Act, 1935, are not “always” set out with scientific definition and observed that—
“each general word should be held to extend to all ancillary or subsidiary ‘matters which can fairly and reasonably be said to be comprehended in it’”.
We have, therefore, to read the Constitution as a whole and to take the entry in question along with the other entries. Doing so, what we find is a comprehensive entry under the main head “land” with sub-headings indicating what that main heading is intended to cover. Side by side with this we have special entries in all the three Lists relating to the acquisition or requisitioning of property. Similarly, in the Government of India Act, 1935, which immediately preceded the present Constitution, we find, an entry for acquisition of land in addition to the entry “Land”. Going further back to the earliest delimitation of legislative powers between the Central and the Provincial Legislatures contained in the Devolution Rules, 1920 we find:—
“Part I—Central Subjects.
16. Civil law, including laws regarding status, property, civil rights and liabilities, and civil procedure.
44. Immovable property acquired by, and maintained at the cost of the Governor-General in Council.
Part II—Provincial Subjects.
8. Land revenue administration, as described under the following heads, namely:—
(a) assessment and collection of land revenue;
(b) maintenance of land records, survey for revenue purposes, records-of-rights;
(c) laws regarding land tenures, relations of landlords and tenants, collection of rents;
(d) Courts of Wards, incumbered and attached estates;
(e) land improvement and agricultural loans;
(f) colonisation and disposal of Crown lauds and alienation land revenue; and
(g) management of Government estates.
15. Land acquisition:—Subject to legislation by the Indian legislature.”
Considering all this, the conclusion is irresistible that legislation regarding land acquisition does not come within the general entry 18 of List II.
Like the learned Attorney-General, Mr. N.C Chatterji has argued that Article 31(4) has no application to the impugned Act but with the opposite result, namely, that protection is necessary but it is not afforded by this provision. He relies on the fact that there are certain differences between the Bill which was pending in the Bihar Legislature at the commencement of the Constitution and the Bill as passed by the Legislature and assented to by the President. He has drawn our attention to four such differences. Clause (3), sub-clause (1) of the Bill then pending included a proviso which required the Provincial Government, when issuing a notification in respect of the estates or tenures of a proprietor or tenure-holder, to issue simultaneously such notification in respect of the estates or tenures of all other proprietors or tenure-holders falling within that income group. There is no such provision in the corresponding provision, section 3, sub-section (1) of the Act. Secondly, the proviso to section 13 of the Act empowers the State Government to entrust the management of the expropriated estates and tenures' to a gram panchayat. Under the corresponding proviso in the Bill, the management could also be entrusted to a co-operative society. Thirdly, clause 32, sub-clause (2) of the Bill made the compensation payable in bonds of guaranteed face value at maturity carrying interest at 2½ per cent, per annum with effect from a date to be prescribed by the State Government. The corresponding provision of the Act makes the compensation payable in forty equal instalments and the interest runs from the date of issue. Fourthly, section 33 of the Act and the corresponding provision in the Bill fix different dates up to which ad interim, interest will run. Article 31, clause (4) of the Constitution protects “any Bill pending at the commencement of this Constitution” which “has, after it has been passed………………., been reserved for the consideration of the President and has received his assent”. I do not see anything in this which requires that the Act as passed must be identical with the Bill that was pending at the commencement of the Constitution. The alterations to which Mr. Chatterji has drawn our attention are not such, in my opinion as to make the Act that was passed distinguishable from the Bill which was pending.
Point no. 2.—According to Mr. P.P Das, the legislative heads which cover legislation of this kind are entry 36 of List II and entry 42 of List III. I reproduce them below:—
“List II—State List.
36. Acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III.
List III—Concurrent List.
42. Principles on which compensation for property acquired or requisitioned for the purposes 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.”
He urges that these two entries taken together make the existence of a public purpose and the payment of compensation for the property acquired the basis and foundation of the power of legislation given under these entries. He would interpret the words “subject to the provisions of entry 42 of List III” as imposing upon legislation in exercise of the power conferred by entry 36 the necessity of making a provision for compensation. On this line of reasoning, he contends, the existence of a public purpose and the necessity for provision regarding compensation are requirements imposed on such legislation by the legislative heads and any contravention of these requirements is open to challenge, in spite of the President's assent under clause (4). He has, therefore, invited us to an examination of the question as to whether, these ingredients are present in the case before us and has contended that both these ingredients being absent, there was no jurisdiction to legislate.
Doubt is thrown upon Mr. Das's interpretation by entry 33 of the Union List which is:
“Acquisition or requisitioning of property for the purposes of the Union.”
Had the words on which Mr. Das has laid stress in entry 36 of the State List been intended to impose, the restriction suggested, we would have expected to find a similar provision in entry 33 of the Union List. It has been suggested that the difference between entry 33 of the Union List and entry 36 of the State List is due to bad drafting and oversight, but this is not borne out by the Draft Constitution prepared by the Drafting Committee of the Constituent Assembly in 1948. This shows two entries in the original draft:
“Union List— No. 43: Acquisition or requisitioning of property for the purposes of the Union”
“State List—Entry no. 9: Compulsory acquisition of land except for the purpose of the Union”;—
there was no separate entry in the Legislative Lists relating to compensation and the necessity of providing for compensation was imposed by Draft Article 24, clause (2), which, is substantially in the same terms as clause (2) of Article 31 of the Constitution. The Drafting Committee inserted draft entry 35 in the Concurrent List:
“The principles on which compensation is to be determined for property acquired or requisitioned for the purpose of the Union or a State”
and recommended the addition to the entries in the Union and the State Lists of the words:
“Subject to the provisions of List III with respect to regulation of the principles on which compensation is to be determined for property acquired or requisitioned for the purposes of the Union a State.”
The debates in the Constituent Assembly when these three entries in the Legislative Lists were considered and took their final form do not show why the suggested qualification of the entry in the Union List was dropped though the modification was made in the entry in the State List. A little consideration however, makes the reason clear. The entries in the original form in which they came up to the Drafting Committee spoke only of
“Acquisition or requisitioning of property”.
The payment of compensation for property acquired would necessarily come under this entry. As the entries stood, it would have been open to the State Legislature legislating under the entry in the State List to provide for compensation for the property acquired and, the legislation being on a matter in the exclusive list appertaining to the State, the State Legislature would be free of control by the Indian Parliament. It was felt that this was not desirable and, therefore, the modification suggested by the Drafting Committee in the State Legislative List was accepted. On the other hand, the modification was not necessary in the entry in the Union List, since it would make no difference whether the Indian Parliament legislates regarding compensation in respect of acquisition for the purposes of the Union in the Union List or in the Concurrent List.
On my construction of the entry in the State List, the words “subject to” have the effect of excluding from the legislative power under entry 36 of the State List matters covered by entry 42 of the Concurrent List. This interpretation is consistent with the meaning of this term in entries 17, 22, 23, 24 and 33 of the State List and a similar limitation on the powers of the State Legislature seems to be imposed in entries nos. 11, 26, 27 and 57 of the State List.
Under the Government of India Act, 1935, the power to legislate in respect of acquisition was vested entirely in the Provincial Legislature under item 9 of the Provincial List:
“Compulsory acquisition of land”
the Dominion being given power under section 127 of the Act to require the Province to acquire land on behalf of the Dominion for the purposes of the Dominion. Control over the Provincial Legislature was, however, retained by sub-section (3) of section 299, requiring sanction for introduction of the Bill in the Legislature, by the provision in sections 75 and 76 for assent to Bills and in section 77 for the disallowing of Acts and by directions to Governors and the Governor-General in their Instrument of Instructions.
Mr. Das approaches the interpretation of the qualifying clause in entry 36 in another way. He points out that, whereas section 299, sub-section (2) expressly related to legislative power and provided that the Legislature “shall not have power to make any law” for compulsory acquisition without complying with certain requirements, clause (2) of Article 31 provides that without such a provision no property “shall be taken possession of or acquired”, words affecting the operation of the law. Therefore, he urges, Article 31 merely lays down a fundamental right of a citizen of India and it is entry 42 of the Concurrent List which places a limitation on the legislative power of the State Legislature. According to him, the fundamental right guaranteed by this clause, that no person shall be deprived of his property save by authority of law, assumes the existence of an authority to make such a law and that authority is to be sought for in entry 36 of the State List read with entry 42 of the Concurrent List. I am not impressed, with the distinction pointed out between section 299 and Article 31. Article 31 occurs in Part III of the Constitution dealing with Fundamental Rights and Article 31, clause 2 in this Part provides that
“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.”
Reading this provision with the provisions of Article 31, there is a clear limitation on the legislative power of the State Legislature, and it is not necessary to derive this limitation from the entries in the legislative lists.
An attempt has been made to distinguish between the expression “subject to” as occurring in entries 11 and 26 of the State List and the same words in entry 36. It is argued that in the case of the former two entries the field of legislation is narrowed down by the exclusion of certain subjects from that field, but there is no such substraction in the case of entry 36 and the power of the State under this entry to acquire or requisition property extends to all properties within the State. The legislative field, however, must not be considered as extending only in the dimension of space. The legislative field under a particular entry extends to different topics ancillary or cognate to the subject matter named. Thus, in the case of acquisition under entry 9 of the Provincial List under the Government of India Act, 1935, it would extend to provision for giving compensation for the land acquired. The qualification of the corresponding entry in the present Constitution excludes from the field of legislation the topic of compensation and there is a cutting down as in the case of entries 11 and 26.
In my opinion, the legislative heads contained in entry 36 of the State List and entry 42 of the Concurrent List empower the Legislature to pass laws relating to the subject-matter contained, therein without placing any restrictions on the powers of the Legislature within the limits of those heads. As these entries stand, it would be open to the Legislature to legislate for acquisition without at the same time legislating about compensation. The limitation which makes provision about compensation essential is imposed by clause (2) of Article 31 read with clause (2) of Article 13. This requirement is therefore a “provision” of clause (2) of Article 31.
Another approach to the same conclusion, namely, that there is no legislative authority for this Act, was attempted by way of Articles 245 and 13 of the Constitution. Article 245 provides that, subject to the provisions of the Constitution, the Legislature of a State may make laws for the whole or any part of the State, and clause (2) of Article 13 that all laws of the State which take away or abridge the Fundamental Rights conferred by Part III shall to the extent, of the contravention be void. The argument is that the impugned Act is void because it contravenes the Fundamental Right to property under clause (2) of Article 31. The answer to the contention is that a limitation on the Fundamental Right is imposed by clause (4) of Article 31 and legislation will not be open to attack under clause 13 if it keeps within that limitation.
Yet another line of attack is that the Act is purely confiscatory and not covered by any entry in the Legislative Lists. In support of this contention reliance has been placed on an observation of Shearer, J., in Kameshwar Singh v. Province of Bihar. That was a decision under the Government of India Act of 1935, the relevant legislative entry in which was:
“Compulsory acquisition of land” (entry 9 in List II)
and the Act impugned was not in the nature of acquisition but merely sought to place zamindaris under State management for a period of time. The Act with which we are concerned, on the other hand, is for the nationalisation of land. It seeks to put the Government in the place of the present owners of the land. It transfers to Government the rights of the proprietors and tenure-holders. Even where lands in their immediate possession are left with them the nature of their rights in the lands are altered; such rights as they had are transferred to the State Government and they become tenants under the Government. The transaction, therefore, even in respect of these lands is an acquisition of their interests with a re-letting of the property to them. In my view, what is done by this Act comes within item 36 of List II of the Constitution. Two Bills with similar objects were before the State Legislatures at the time when the Constituent Assembly considered and passed Article 31, one in Madras and the other in the United Provinces. Besides this in Bihar the Bihar Abolition of Zamindaris Act, 1948, had received the assent of the Governor-General in July 1948. It was to protect these pieces of legislation that safeguards were provided in clauses (4) and (6) of Article 31. The legislation in question was of a type new to this country but it was not of a type that had not been thought of previously. Provision relating to such legislation is contained in sub-section (3) of section 299 of the Government of India Act, 1935, and the limitation placed by this sub-section on the power of passing such legislation assumed that there was power to pass such legislation. The Constituent Assembly similarly placed restrictions on such legislation in Article 31 and made provision to protect certain legislation, of this kind. In these circumstances. I find it difficult to hold that the Constituent Assembly did not provide any legislative head within which such legislation is included.
Point no. 3.—Mr. Das formulated a ground which, he urged, goes to the root of the impugned legislation. The Constituent Assembly, he urges, in enacting in Article 31 that no person shall be deprived of his property save by authority of “law” meant by that word not the particular statute enacted to make the acquisition but the general law of the land the lex-terrœ of the Magna Charta, the common law of England as introduced into India in the guise of rules of equity, justice and good conscience; the impugned Act is contrary to the law in this sense and hence it is void under Article 31, clause (1). In view of the Supreme Court having repelled a similar contention regarding the word “law” in Article 21 of the Constitution in A.K Gopalan v. State Of Madras., Mr. Das did not press his contention in this Court but reserved his right to press the point at a later stage if necessity arises.
He contended, however, that the word “law” in this provision must at least mean a valid law, for
“An unconstitutional Act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed”. [Norton v. Snelby County.]
Under the constitution, he contends, there is no power to legilate for acquisition without a public purpose. Hence, if the Court is satisfied that there is no public purpose in the present case, the assent of the President cannot save the legislation. To this extent, I accept the contention and it will be necessary in the proper place to consider whether a public purpose has been made out.
Point no. 4.—The contention is that the word “law” in Article 31, clause (4) means a valid law and that where the Bill that was passed by the Legislature offends against clause (2) of that Article it is not a “law” at all and therefore cannot be saved by the assent of the President; clause (4) assumes the existence of a law which can be saved by his assent whereas, if clause (2) is contravened, there is no law to be saved. This interpretation would have the effect of making clause (4) nugatory. From the context it is clear that the word cannot be read in this strict sense, for the protection given by clause (4) assumes that the “law” is open to attack and therefore is not law in the strict sense. The word seems to have been used as a compendious way of describing legislation which has passed through the Legislature of a State and has not yet received assent. A similar use of the word “law” is to be found in the Government of India Act, 1915, section SOA, sub-section (3), which provides that the local legislature shall not: without the previous consent of the Governor-General consider any “law” relating to any of the subjects detailed in the sub-section. In clause (3) of Article 31 also, we find “law” being used in this sense for this clause speaks of a law being reserved for the consideration of the President and receiving his assent though it does not become a “law” in the strict sense till it has received his assent. I may also mention Article 13, clause (2) of the Constitution which speaks of a “law” made in contravention of the clause as being “void”.
Point no. 5.—I have held above that the assent of the President under Article 31, clause (4), does not protect the Act against attack on the ground that there is no public purpose. It is therefore necessary to enquire if there was a public purpose. The proper attitude of the Courts in such an investigation has been considered, frequently, by the American Courts and may be taken as well established. Every intendment is in favour of the constitutionality of the impugned Act; it will be presumed to be valid unless its invalidity is plain and apparent [United States v. Gettysburg Electric Railway Company]. Where the Legislature has declared the purpose to be a public one by implication, if not by express words, its decision is entitled to deference unless it is shown to involve an impossibility. [Old Dominion Land Company v. United States of America.]. Any departure from this judicial-restraint would result in Courts deciding on what, is and is not a governmental function and in their validating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable, in other fields [United States Ex. Rel. T.Y.A v. Welch]. Weaver sums up the position thus:
“What constitutes a public use is largely a question for the legislature and the Courts will not interfere except to enquire whether the legislature could reasonably have considered the use a public one.” [P. Weaver's Constitutional Law and its Administration.]
The first question is: What is a public purpose? The position is well illustrated by the words of Batchelor, J., approved by Lord Dunedin in Hamabai Framjee Petit v. Secretary of State for India:
“General definitions are I think rather to be avoided where the avoidance possible, and I make no attempt to define precisely the extent of the phrase public purposes in the lease: His 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.”
I accept Mr. Das's contention that the acquisition of private property to increase public, revenue is not acquisition for a, public purpose purposes [Willis on Constitutional Law, page 817]: that is a matter in the domain of favation??? and legislative for that purpose would come under other legislative entries. This does not affect the impugned Act the effect of which may be to increase public revenues but only incidentally the real object of the Act being the nationalisation of the land. Continuing Mr. Das has strewed that “public purpose” must be something definite and specific and drew our attention to several American authorities in support of this contention of which I need refer only to Weaver:
“Eminent domain is generally defined as the right or power of a sovereign State to condemn private property for some particular public, use for the purpose of promoting the general welfare and to appropriate the ownership or possession of such property for such use upon paying the owner duel compensation. It embraces all cases where, by the authority of the State, the property of the individual is appropriated for public good without the consent of the owner for the purpose of devoting it to some particular use either by the State itself or by a corporation, public or private, or by an individual” (page 541).
“The Courts, however, require that the use shall be fixed and definite” (page 546).
“The extent of the power is limited by the necessities of the particular public purpose or use in the land sought to be condemned” (page 549).
The italics are mine. Mr. Das has particularly stressed that mere State policy does not constitute a public purpose:
“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” [Cooley's Constitutional Limitations, page 744].
In connection with the authorities cited it is well to keep in mind the words of the learned author of Cooley's Constitutional Limitations prefacing his investigation of the meaning of “public use” in the sphere of eminent domain:
“We find ourselves somewhat at sea, however, when we undertake to define, in the light of the judicial decisions, what constitutes a public use” (page 1129).
He appropriately ends his investigation with a judicial pronouncement from Missouri, that—
“no satisfactory definition of the term ‘public use’ has ever been Achieved by the Courts” (page 1139).
In applying these citations it is necessary to remember that they relate to the; exercise of the right of eminent domain in a setting of political ideas very different from those which he behind the impugned, Act. They relate to ordinary cases of compulsory acquisition of land such as we have known in this country ever since Bengal Regulation I of 1824, that is, the acquisition of particular land for a particular public purpose. The legislation now before us is of an entirely different type. It aims at the nationalization of land and at bringing Government face to face with the cultivator or the person in direct occupation of land. The authorities cited, therefore, will not furnish any real guidance in deciding whether there is a “public purpose” in the present case and we have to proceed primarily on the provisions of the Constitution.
Some idea of the meaning of this expression is furnished by the legislative heads relating to acquisition in the Seventh Schedule to the Constitution. Items 33 of the Union List and 36 of the State List speak of
“purposes of the Union”
and item 42 of the Concurrent List speaks of
“purposes of the Union, or of a State or……… any other public; purpose”.
Therefore, acquisition for a purpose of the Union or for a purpose of a State is acquisition for a public purpose.
The intention appears to be to give the term “public purpose” a wide and comprehensive meaning. Another indication of the extent of that meaning is given by clause (5) of Article 19 which empowers a State to make laws imposing reasonable restrictions on the exercise of the right of acquiring, holding and disposing of property
“either for the interests of the general public or for the protection of the interests of any Scheduled Tribe”.
Clause (2) of Article 23 uses the expression “public purposes” in connection with the imposition of compulsory service by the State; thus applying the term to the domain of police power as the American Jurists call it. Hence, the investigation should be on the lines whether the legislation is designed for the performance of any functions of the State or of the. Union and whether it aims at the securing of benefit, to the general public of the State.
The expression “public use” in the 5th amendment to the American Constitution has given rise to divergent views in that country. According to the earlier view, there must be a use by the public. The later and more liberal view takes it as sufficient if there is a general benefit to the public. The adoption by our Constituent Assembly of the expression “public purpose points to a preference for the later view. The word “purpose” is wider in its connotation than the word “use”. It is connected with the intention of the Legislature whereas “use” points to the result of the legislation. We have seen that even when the Courts had to interpret the words “public use” they have taken the attitude that the Court must defer to the judgment of the Legislature unless it is shown to involve an impossibility. The use of the word “purpose” has a similar effect. Hence, I do not think that the authority of the Court extends to determining whether the legislation will achieve the end intended.
The impugned Act does not speak in express terms of any public purpose. The preamble and the long title merely recite the necessity for providing for the transference to the State of the interests of proprietors and tenure-holders in land and of the mortgagees and lessees of such interests including interests in trees, forests, etc., and to provide for the constitution of a Land Commission for the State of Bihar with powers to advise the State Government on the agrarian policy to be pursued consequent on such transference. The Act took the place of the Bihar Abolition of Zamindaris Act, and the Bill by which it was introduced into the Legislature was prefaced by a Statement of Objects and Reasons explaining only why the proposed substitution was, to be made, namely, the necessity for providing for the collection of rents in the acquired zamindaris by gram panchayats and co-operative societies and for the establishment of a body of officials and non-officials to advise the State Government in matters of land administration. For the objects and reasons underlying the Act, therefore, we have to go back to the Bill by which the Bihar Abolition of Zamindaris Act was introduced in 1947. This states:
“It is the policy of Government in the interest of the raiyats and for the general material and social advancement of the Province to remove all intermediaries between Government and raiyats. Without a radical change in the system of land tenure no co-ordinated plan of agricultural reconstruction can be undertaken with a fair rent, fixity of tenure, proper maintenance of local irrigation Systems and consequent increase of crop yield and extension of cultivation. It is essential for the good of the inhabitants of the Province that the maximum result from planned exploitation of the land and water resources of Bihar should be obtained. For this purpose it is essential to get rid of the middleman and to bring Government into direct touch with the raiyat. For this reason Government have decided that the time has come to do away with the existing outmoded agricultural frame word known as the Zamindari system and to replace it by a raiyatwari system analogous to that of Bombay and Madras Provinces.”
The idea in short is to remove the middleman. In the Act, apart from the establishment of the Land Commission whose functions are purely advisory and a provision for the making over of collection of rent to gram panchayats, there is no express provision for the other reforms mentioned.
Looking at the terms of the Act, therefore, it appears that all that the Act provides for is the transference of the interests of proprietors and tenure-holders to the Government with the underlying idea that the Government will thereby be able to provide better conditions under which the cultivators and other direct occupiers of the land may use the land and thus contribute to the general welfare of the State. The question whether this merely amounts to a public policy and not to a public purpose, has been answered by the Constituent Assembly itself. Legislation of the type which we are considering, namely, the Bihar Abolition of Zamindaris Act, 1948, was before the Constituent Assembly at the time when the Constitution was being framed. Bills relating to such legislation were pending in the Legislatures of the Province of Madras and United Provinces. The Constituent Assembly provided protection for both these classes of legislation by means of clauses (4) and (6) of Article 31. From Article 31, clause (2), it is clear that the Constituent Assembly considered two requirements as essential for compulsory acquisition, namely, a public purpose and provision for compensation. The protection which the Constituent Assembly gave under clauses (4) and (6) were 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 Constituent 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.
Point no. 6.—It is urged that under Article 19(1)(f) all citizens have the Fundamental Right to acquire, hold and dispose of property and that a State can only Impose reasonable, restrictions on that Right within the meaning of clause (5) of that Article. In view of the decision of the Supreme Court in the case of A.K Gopalan regarding the relation between Article 21 of the Constitution and the Fundamental Right of free, movement guaranteed by Article 19(1)(d), there appears to be no substance in this point. Under the impugned legislation what is being done is that the property of the zamindars, tenure-holders and other persons is being taken away and is being vested in the State. No question, therefore, arises of placing restrictions on the right of any subject to hold that property. The impugned legislation must stand or fall on the provisions of Article 31.
Point no. 7.—Article 14 of the Constitution provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The meaning and effect of the guarantee of equal protection of the laws is thus set out by Willis in his work on Constitutional Law:
“The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. ‘It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed’. ‘The inhibition of the amendment…………… was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation’. It does not take from the States the power, to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis.”
This passage has been approved by Fazl Ali, J., as a correct exposition of the principles underlying this guarantee in the case of Charanjit Lal. His Lordship laid particular emphasis on the principle that—
“a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed”.
Mukherjea, J.:— with whom Kania, C.J, agreed, took substantially the same view. According to him, classification
“must always rest on some real and substantial distinction bearing a reasonable and just relation to the things in respect to which the classification is made; and classification made without any substantial basis should be regarded as invalid”.
Patanjali Sastri, J. similarly emphasised that the basis of the classification must, have
“a just and reasonable relation to the object which the legislature has in view”.
Mr. Das would have us go further and hold as unconstitutional the conferring of an arbitrary and unguided discretion by section 3 of the impugned Act on the State Government, giving it absolute discretion whenever it pleases to take action under the Act against whichever proprietor or tenure-holder it selects. In the opinion of the Court delivered by Matthews, J., in Yick Wo v. Hopkins there is more than one passage which supports the contention of Mr. Das, but the case was one, not merely of a grant of unguided discretion but also of an unjust and discriminatory exercise of that discretion against the petitioners-in-error, and it is on these facts that the petitioners-in-error were discharged from custody. Our attention was drawn to Plessy v. Ferguson(3), in which Brown, J., spoke of the decision in Yick Wo v. Hopkins as holding that the impugned Ordinance was unconstitutional if it gave the municipal authorities an arbitrary discretion. His Lordship's observation was obiter, as he was concerned not with the grant of an arbitrary discretion but with a discrimination alleged to be made by the impugned statute itself. Further, his Lordship's observation should be read with the passage that immediately precedes:—
“The reply to all this is that every exercise of the police power must be reasonable and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class.”
Also, his Lordship pointed out that in that case the impugned Ordinance was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race. A different view of the decision in Yick Wo v. Hopkins was taken in New York ex rel, Lieberman v. Van De Carr:—
“These cases leave in no doubt the proposition that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power of the State is not violative of rights secured by the 14th Amendment.
There is no presumption that the power will be arbitrarily exercised, and when it is shown to be thus exercised against the individual, under sanction of State authority this Court has not hesitated to interfere for his protection, when the case has come before it in such manner as to authorise the interference of a Federal Court. Yick Wo v. Hopkins.”
This is in agreement with the observation of Kania, C.J, with whom Fazl Ali and Patanjali Sastri, JJ., agreed, in the case of N.B Khare (Dr.) v. State Of Delhi:
“Moreover, this whole argument is based on the assumption that the Provincial Government when making the order will not perform its duty and may abuse the provisions of the section in my opinion it is improper to start with such an assumption and decide the legality of an Act on that basis. Abuse of the power given by a law sometimes occurs but the nation inasmuch as action under the Act has been validity of the law cannot be contested because of such an apprehension”
B.K Mukherjea and Mahajan, JJ., Though they disagreed with the learned Chief Justice and the other two learned Judges regarding the reasonableness of the discretionary power given to the State Government by the impugned Act, proceeded on an examination whether the circumstances in stifled the conferring of such a power of restricting the liberty of free movement and not on the basis that the conferring of unguided discretion is by itself unconstitutional.
Applying the principle to the present case I am not Prepared to say that the conferring of this power on the State Government was unreasonable. There is a large number of estates and tenures in the State and it is impossible for the State to acquire all of them at one time. Nor was it possible for the Legislature to lay down any order in which the estates and tenures should be acquired. An attempt was made to regulate this and section 3 of the Bihar Abolition of Zamindaris Act, 1948, contained a proviso inserted at the instance of the President:
“Provided that where the Provincial Government proposes to issue such notification in respect of the estates or tenures of a proprietor or tenure-holder whose gross annual income in the opinion of the Collector exceeds a particular amount, the Provincial Government shall issue simultaneously such notification in respect of the estates or tenures of all other proprietors or tenure-holders falling within that income group.”
This proviso was included in the Bihar Land Reforms Bill of 1949 when it was first introduced into the Assembly on the 30th of December 1949 but was omitted by the Assembly and does not appear in the Bill passed on the 20th of April 1950. The reasons for which the proviso was omitted do not appear but the omission does not affect the validity of the discretion, vested in the Government. The restriction imposed by the proviso was merely a rough attempt to ensure equality of treatment by insisting that, when the property of a particular proprietor or tenure-holder is acquired, the property of all other proprietors or tenure-holders having an equal or greater gross annual income must be acquired also. The result of such a provision might well be extremely inconvenient for administrative reasons. If the object of the Act was to be attained, namely, to bring the State Government into direct touch with the occupiers of the land, it would be necessary in respect of each estate acquired to acquire at one time all the intermediate interests therein. Under the operation of the proviso, however, such action in one estate would necessitate the immediate acquisition of the intermediate interests of the same standing throughout the State of Bihar. In other words, the proviso, if retained, would have meant that in order to effect the object of the Legislature the State would have to acquire all intermediate interests in the land at one time throughout the State, thus defeating the object of the discretionary power given to the Government.
It has been suggested that here we have a case not merely of a delegation of absolute discretion but also of an exercise of arbitrary and unfair discrimination in as much as action under the Act has been taken only in respect of the zamindari properties and tenures held by the three plaintiffs in the suits before us. I was at first impressed by this argument. For instance, in notification no. 5068-L.R. Act. T.R.D 20 dated the 25th of September 1950 relating to the Maharajadhiraj of Darbhanga we find that his proprietary interest in a large number of estates extending to a fractional share in one instance as small as 2 gandas 2 kauris, has been acquired and yet the interests of his co-sharers have been left; untouched. But it must be remembered that the notifications in respect of these three persons were the very first steps taken by the State Government in administering the Act. It was necessary that the Government should begin somewhere and after taking stock of the situation, proceed gradually to acquire other properties in accordance with administrative convenience. The notification relating to the Darbhanga Raj shows that the immediate effect would have been to put the Government in the place of the Maharajadhiraj in a larger number of estates in which he was the sole proprietor. It would only be after getting into this position that the Government would be able to ascertain the nature and particulars of the subordinate tenures therein and to acquire them. It may be that similar considerations influenced the Government in their choice of the other two persons in respect of whom they have proceeded. The Court must presume that, the action of the Government was constitutional and if unfair discrimination is alleged it is for the persons alleging it to establish the fact.
The plaintiffs are on a stronger ground when they attack the constitutionality of the classification made in sections 23 and 24 of the Act, relating to the computation of the net income and the compensation respectively.
According to section 22, “gross assets” of a proprietor means the aggregate of the rents including cesses which were payable in respect of the estate to such proprietor for the previous agricultural year by the tenure-holders and raiyats holding immediately under him. The term includes certain national sums in respect of lands left in the possession of the proprietor, gairmazrua malik, zamindari offices, etc. Section 23 provides for the computation of a net income by the deduction from the gross assets of pertain amount as representing expenditure necessary to be met by the proprietor in the ordinary course, for example, land revenue, agricultural income-tax, income-tax in respect of non-agricultural income and so on. Among other items to be deducted are the cost of management at the following rates:—
“Amount of gross asset.
Rate.
(i) Where the gross asset does not exceed Rs. 2,000.
5 per centum of such gross asset;
(ii) where the gross asset exceeds Rs. 2,000 but does not exceed Rs. 5,000.
7½ per centum of such gross asset;
(iii) where the gross asset exceeds Rs. 5,000 but does not exceed Rs. 10,000.
10 per centum of such gross asset;
(iv) where the gross asset exceeds 12½ Rs. 10,000 but does not exceed Rs. 15,000.
per centum of such gross asset;
(v) where the gross asset exceeds Rs. 15,000.
Not less than 15 and not more than 20 per centum of such gross asset,”
and the cost of works of benefit to the raiyats of such estate or tenure at the following rates:—.
“Amount of gross asset.
Rate.
(i) Where the gross asset does not exceed Rs. 5,000.
4 per centum of such gross asset;
(ii) where the gross asset exceeds Rs. 5,000 but does not exceed Rs. 10,000.
6 per centum of such gross asset;
(iii) where the gross asset exceeds Rs. 10,000 but does not exceed Rs. 15,000.
8 per centum of such gross asset;
(iv) where the gross asset exceeds Rs. 15,000 but does not exceed Rs. 20,000.
10 per centum of such gross asset;
(v) where the gross asset exceeds Rs. 20,000.
12½ per centum of such gross asset.”
The small proprietors and tenure-holders may be assumed to be managing their properties personally or with the help of the members of their families and their wealtheir fellows to employ low-paid or highly paid staff according to their means. This will explain the graded rates at which the cost of management is to be assessed on estates according to their gross assets, though it is debatable whether as the size of the estate increases the proportion which the cost of management will bear to the gross assets of the estate will continue to increase. I fail, however, to see any obvious connection between the costs of works of benefit to the raiyats and the amount of the gross assets of the estate. The term “works of benefit” is vague and I find it difficult to understand what it is intended to mean. In the State it is not usual for agricultural tenants to enter into agreements with their landlords requiring the latter to provide for beneficial works and it is only in districts like Gaya, where a complicated system of irrigation is necessary, that a custom prevails under which the landlords become responsible for maintaining works of irrigation. That the landlord discharged this duty was ensured in the old days by making the rent payable for the land a produce rent, thus giving a direct interest in keeping up the irrigation works. There is now the Bihar and Orissa Private Irrigation Works Act, 1922 (Bihar and Orissa Act V of 1922), under which the duty can be enforced by proper action. Anything that may be done by the landlord for the raiyats beyond the maintenance of works of irrigation is largely a matter of charity and good feeling. The monetary value of such work as the landlord may do for the benefit of his raiyats would therefore depend not on the gross assets of his estate but on his generosity and on the income available to him after meeting his necessary expenses. The provision made in section 23 is not a case of enforced charity. The deductions proposed to be made are not deductions of, money intended to be applied to works of benefit to the raiyats; they are deductions by which the net income of the proprietor, which is to be the basis of calculating the compensation payable to him, is to be reduced. The effect of the provision is that the deduction under this head from the gross assets will vary from 4 per cent in the case of small proprietors to 12½ per cent, in the case of large proprietors. The conclusion is forced on one that these Reductions are provided for reducing the amount of the compensation that the State will have to pay for the property acquired, and that the classification has been so made that the reduction will be proportionally greater in the case of the big proprietors than in the case of the small proprietors.
The inequality between the two classes of proprietors will be further swelled by the application of the rates prescribed in section 24 to which I now proceed. This section deals with the computation of the compensation to be paid for the property acquired. It prescribes that after the net income has been computed under section 23 the compensation officer shall prepare a compensation roll determining the amount of compensation in respect of each proprietor or tenure-holder, as the case may be, at certain multiples of the net income specified in the section. The multiples vary from twenty times where the net income does not exceed 500 rupees to three times where the net income exceeds one lakh of rupees. I can see no reasonable basis on which this application of different multiples to net incomes of differing amounts can be justified. The learned Attorney-General has made an attempt to support it by reliance on a principle which, has been applied to progressive-taxation (vide Willis's Constitutional Law, page 597), a principle that is commonly applied in India in the sphere of income-tax. He points out that, unlike the American Constitution, the Constitution of India provides for “Compensation”, not for “just compensation”. It is not possible, he urges for the States to pay full compensation and the Constituent Assembly deliberately avoided the use of the word “just”. He urges that, this being so, the Legislature was justified in distributing the loss between the expropriated proprietors and tenure-holders according to the rule obtaining for progressive taxation, namely that a person better able to pay should pay in a larger proportion than a person with smaller means.
I cannot agree that the omission of the word “just” has the effect contended for. The word “compensation” in respect of compulsory acquisition of property had a well accepted legal significance at the time when the Constituent Assembly framed the Constitution of India. In Lucas and Chesterfield Gas and Water, In re, Fletcher Moulton, L.J, defined it as the equivalent of the lands acquired, i.e
“that which they were worth to him (the expropriated owner) in money”.
This definition is accepted by the Privy Council [Cedars Rapids Manufacturing and Power Company v. Lacoste] though it does not agree with Fletcher Moulton, L.J, as to the principles on which the monetary value is to be computed [Gajapatiraju v. Revenue Divisional Officer]. According to the Judicial Committee in Fraser v. City of Fraserville(4), the compensation payable is to be based on—
“the value to the seller of the property in its actual condition at the time of expropriation with all its existing advantages and with all its possibilities, but excluding any advantages due to the carrying out of the scheme for which the property is compulsorily acquired.”
The principles according to which the compensation was to be assessed in India were set out in the Land Acquisition Act, 1894 (Act I of 1894), and it has always been well understood that the compensation represents the money value of the property acquired. In fact, it is usual to give the owner something more than the value of the property by way of a solatium for the compulsory nature of the acquisition. When the Constituent Assembly used the word “compensation”, it must be taken to have used it in the accepted sense as representing the money value of the property. The giving of compensation for property compulsorily acquired was considered to be of sufficient importance to be guaranteed by a provision in the Part of the Constitution dealing with Fundamental Rights. It does not appear likely that the Constituent Assembly would by that very provision empower the legislature to give as compensation such amount, as it thinks proper without any reference to the real value of the property acquired.
We have been invited by the learned Advocate-General of Bihar to hold that the power given to the Legislature to legislate with regard to the principles on which compensation for the property acquired is to be determined makes the matter of compensation non-justiciable. The very fact that this matter has been included in Part III of the Constitution and that it has been thought necessary to provide protection to such, legislation under clauses (4) and (6) of Article 31 shows that the matter was intended to be justiciable. What clause (2) requires is provision for compensation and the Courts are entitled to enquire, subject to clause (4); whether the payment for which the impugned legislation provides is “compensation” within the meaning of this clause. I cannot accept the contention that by reason of the omission of the word “just” the State Legislature is entitled to provide for payment to the expropriated proprietors and tenure-holders of “compensation” less in value than the monetary equivalent of the expropriated properties, and therefore to distribute the loss between the expropriated proprietors and tenure-holders in accordance with their respective abilities to bear the loss. It seems to me that the insertion of the word “just” in clause (2) of Article 31 would not have made any difference. In support of my conclusion I cite the words of Brewer, J., in Monongahela Navigation Co. v. United States:
“The noun ‘compensation’, standing by itself, carries the idea of an equivalent. Thus we speak of damages by way of compensation, or compensatory damages, as distinguished from punitive or exemplary damages, the former being the equivalent for the injury done, and the latter imposed by way of punishment. So that if the adjective just had been omitted, and the provision was simply that property should not be taken without compensation, the natural import of the language would be that the compensation should be the equivalent of the property. And this is made emphatic by the adjective ‘just’.”
To the same effect is this passage from Nichols on Eminent Domain, Volume III, at page 29:
“Many of the State Constitutions require that the compensation shall be ‘just’, ‘reasonable’ or ‘adequate’, but these words are mere epithets rather than qualifications and add nothing to the meaning. The phrase ‘just compensation’ means the value of the land taken and the damage, if any, to land not taken. More than this it does not imply. The adjective ‘just’ only emphasises what would be true if omitted, namely, that the compensation should be the equivalent of the property. It has been said in this regard that it is difficult to imagine an ‘unjust compensation’. The word ‘just’ is used evidently to intensify the meaning of the word ‘compensation’, to convey the idea that the equivalent to be rendered for property taken shall be real, substantial, full and ample, and that ‘no legislature can diminish by one jot the rotund expression of the constitution’. Substantially the same meaning is attributed to the term ‘due compensation’ and ‘adequate compensation’.”
Our attention has been drawn to the following observation about the corresponding expression ‘just terms’ in the Constitution of the Australian Commonwealth:—
“It is submitted that the view that a Commonwealth Act authorising acquisition of property and fixing a nominal sum for compensation would be a valid enactment, is correct. No measure of justice is laid down in the Constitution, and it is not conceivable that the Court would question the judgment of Parliament on this matter. But, if the Commonwealth passed an Act seizing property without fixing or referring to compensation or terms at all, this would undoubtedly be ultra vires, for such an Act could not be described as a law with respect to ‘the acquisition of property on just terms’ at all; it would require no investigation by the Court into questions of policy to see that such an enactment was not within the Commonwealth legislative power.”
(Wynes's Legislative and Executive Powers in Australia, page 248.)
This is merely a submission of the learned author and is not supported by any authority. On the contrary, the majority of the Judges in The Minister of State for the Army v. Dalziel considered, and answered in the negative the question whether the compensation provided for by Reg. 60 H of the National Security (General) Regulations was “just terms” within the meaning of the Constitution of the Commonwealth.
Willis in his book on Constitutional law of the United States notes that in the sphere of eminent domain the problem of classification is not so important as in the spheres of police power and taxation and that as between the latter two spheres a wider discretion is allowed by the Supreme Court under taxation than is given under police power. The extent of the discretion permitted is indicated by the following passage occurring at pages 802-803 of this book:
“Taxation is reasonable when it is for a public purpose. Nothing else is required to make it reasonable. For taxation to be due process of law as a matter of substance it does not have to be levied on the theory of protection, or benefits, or ability to pay, or public need, or physical power, but only for a public purpose. Ability to pay, or special benefits, may be sufficient basis for classification, but neither is required for due process of law. It is not essential to the validity of taxation that taxes be levied according to rules of abstract justice. Neither strict justice nor absolute equality is attainable. It is impossible to prevent the escape of some property from taxation while other property is being taxed twice. Owners may be taxed on property which has ceased to exist or which they have ceased to own. This cannot be prevented. All that the Constitution requires is that taxes shall be for a public purpose.”
Nevertheless, in the very passage relied on by the learned Attorney-General, Willis mentions the existence of a doubt as to whether a progressive property tax would be constitutional or not. It will, therefore, be relevant to consider some cases of this nature. In Cumberland Coal Co. v. Board of Revision, it was held that the deliberate and systematic assessment for taxation of all the coal lands in a township at the same sum per acre, notwithstanding differences in actual and market value due to distances from transportation facilities and other factors was a contravention of the right of equal treatment under amendment xiv inasmuch as some owners were assessed on the full value of their properties and others at a smaller value. In Stewart Dry Goods Co. v. Lewis, a gross sales tax which classified vendors for the imposition of a varying rate of taxation solely by reference to the volume of their transactions was held to violate the equality clause. In Cotting v. Godard the impugned Ordinance fixed the charges which could be made by Stockyard operators whose volumes of business exceeded certain limits. It was held that this was a contravention of the equality clause as the regulation of the operator's charges was not to be measured by the aggregate of his profits but by the value to the person charged of the service rendered. The principle underlying these cases is the principle emphasized by the Supreme Court in the case of Charanjit Lal, namely that classification is permissible but it must be on a principle which bears some relation to the object sought to be attained. The object of the legislation here impugned is the giving of compensation, that is, something which will represent the value in money of the property that is being acquired. It cannot be said to be a reasonable classification which assesses that value at twenty times the net income in the case of the poor man and three times in the case of the rich man. The difference between taxation and eminent domain is thus defined by Weaver at pages 543-544 of this Constitutional Law and its administration:—
“Under Taxation the individual is required to make an enforced contribution of money or property as his share of the burden for the support of the Government. Property taken under eminent domain is so much beyond the owner's share of the burden of government, and for this reason he is entitled to compensation.”
This explains why the principle of progressive taxation does not apply to compensation for land acquired. In my opinion, therefore, the objection that this provision contravenes the equality clause must be allowed.
It has been suggested that the assent of the President under clause (4) of Article 31 precludes the Court from going into the question of compensation and, therefore, from considering whether the provision regarding compensation contravenes Article 14. I do not think the assent has this effect. The protection afforded by this clause is strictly confined to the ground that the impugned legislation “contravenes the provisions of clause (2)”. The only “provision” of clause (2) is that the impugned law must provide for compensation for the property taken possession of or acquired and 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. It is not for the absence of any of these essentials that the impugned Act is here being questioned.
Another line of approach on the point of inequality is suggested by the following observation of Brewer, J., in Reagan v. Farmer Loan & Trust Co..—.
“The equal protection of the laws, which by the 14th Amendment, no State can deny to the individual, forbids legislation, in whatever form it may be enacted; by which the property of one individual is without compensation wrested from him for the benefit of another, or of the public. This, as has been often observed, is a government of law, and not a government of men, and it must never be forgotten that under such a government, with its constitutional limitations and guarantees, the forms of law and the machinery of government, with all their reach and power, must in their actual workings stop on the hither side of the unnecessary and uncompensated taking or destruction of any private property, legally acquired and legally held.”
On this line of reasoning, it may be contended that if the Court on an examination of the terms of the impugned statute considers that the payment provided for by that statute is not compensation, the statute is void on the ground of discrimination. I shall not follow up this line, as it was not taken in the arguments before us. Also, I am doubtful whether in view of the President's assent under clause (4) of Article 31, this Court can enquire whether the payment provided for is compensation.
For the reasons I have given above, I hold that there is a contravention of the Fundamental Right under Article 14.
The question then arises what is the effect of the conclusion I have come to. Does it invalidate only the particular provision in which the contravention occurs? Or, does it invalidate the Act as a whole? In my opinion, it has the latter effect. The contravention, which I have found relates to the determination and payment of compensation. The entire scheme of the Act is that the property of the landlords and tenure-holders is to be acquired and in exchange therefor they are to get compensation either in cash or in bonds payable in forty equal instalments. On my finding, the provisions relating to the determination of the amount of compensation are void. Therefore, an essential element of the Act disappears and the remainder cannot survive. I do not think that the assent of the President under Article 31(4) helps to save the Act, for I cannot take the view that the assent covers a case in which the provisions relating to compensation are found to be void. I have two reasons for this view. Firstly, I rely on the importance which the Constituent Assembly evidently attached to the giving of compensation in payment for property acquired. The existence of such, a provision and of a public purpose were regarded by the Constituent Assembly as essential for a compulsory acquisition by law. It is not conceivable that the Constituent Assembly could have intended by clauses (4) and (6) of Article 31 to protect a total absence of provision for compensation. This is corroborated by the fact that in the Bills and in the Act which these two clauses were designed to protect there was provision for compensation. All that clauses (4) and (6) do is to empower the President to decide whether the sum so provided is compensation or not and, to this extent these two clauses make his decision non-justiciable. This is why I have refrained, except so far as was necessary for determining the point of inequality, from considering whether the sum to be determined according to the principles provided in the Act is compensation, as that term is understood in law. My second reason is allied to my first reason. The Constituent Assembly, as I have said, attached great importance to the provision for compensation but, instead of making it justiciable, entrusted to the President the power to decide finally whether, it is compensation. The President by giving his assent under clause (4) or the certificate under clause (6), gives his approval to that provision. If, however, it is found that, for some reason unconnected with clause (2) of Article 31, the provision is void, an essential part of the Act has gone and the statute is no longer “the law” assented to or certified by the President.
Point no. 8.—sub-section (2) of section 32 provides:
“The amount of compensation so payable in terms of a 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-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 centum per annum with effect from the date of issue.”
The corresponding provision in the rule-making section is section 43(2):
“In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—
(p) 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 is contended that this provision amounts to a delegation of legislative power to the State Government. An objection on this ground was dealt with by the Supreme Court in State of Bombay v. Narottamdas Jethabhai. Their Lordships were considering the Bombay City Civil Court Act, 1948, which empowered the Bombay City Civil Court to entertain suits and proceedings of a value up to Rs. 10,000. The point at issue was the validity of section 4 of the Act, which empowered the Provincial. Government to invest the City Civil Court with jurisdiction to receive, try and dispose of all suits and other proceedings of a Civil nature arising within Greater Bombay and of such value not exceeding Rs. 25,000 as might be specified in the notification. Mukherjea, J., observed—
“I have no hesitation in holding that the legislature in empowering the Provincial Government to invest the City Court, by notification, with jurisdiction of such value not exceeding Rs. 25,000 as may be specified in the notification, has not delegated its legislative authority to the Provincial Government. The provision relates only to the enforcement of the policy which the Legislature itself has laid down. The law was full and complete when it left the legislative Chamber permitting the Provincial Government to increase the pecuniary jurisdiction of the City Court up to a certain amount which was specified in the statute itself. What the Provincial Government is to do is not to make any law, it has to execute the will of the Legislature by determining the time at which and the extent to which within the limits fixed by the Legislature, the jurisdiction of the Court should be extended. This is a species of conditional legislation which comes directly within the principle enunciated by the Judicial Committee in The Queen v. Burah where the taking effect of a particular provision of law is made to depend upon determination of certain facts and conditions by an outside authority.”
Mahajan, J., With whom Fazl Ali, J., substantially agreed, pointed out that the Bombay Legislature must have applied its mind to the question of extending the City Civil Court's pecuniary jurisdiction up to Rs. 25,000 when it fixed that limit; by limiting the jurisdiction initially to Rs. 10,000 and empowering the Provincial Government to increase that jurisdiction, it merely gave the Provincial Government power to determine the circumstances under which the enhanced powers should be given to the City Civil Court;—
“The vital matters of policy having been determined, the actual execution of that policy was left to the Provincial Government.”
Similarly, Das, J., with whom Patanjali Sastri, J., agreed, observed that, in enacting section 4, the Legislature itself decided that it is fit and proper to extend the pecuniary jurisdiction of the new Court, not necessarily and at, all events or all at once but if and when the Provincial Government should think it desirable to do so; it was wrong to say that the Legislature had not applied its mind or laid down any policy and the very fact that the extension of pecuniary jurisdiction should not exceed Rs. 25,000 indicated a decision that the jurisdiction of the Court should be limited to this extent.
The test applied was; was the legislation full and complete when it left the legislative Chamber? Did the Legislature apply its mind to the subject matter of the legislation and lay down a policy, merely leaving duties of an executive character to the State Government? The legislative powers vested in the State Legislature were to make provisions relating inter alia to “the form and manner” in which compensation is to be given. The impugned sub-section relates to “the form and manner” in which compensation is to be given. The Act provides that compensation may be given in cash or by deferred payment or partly in cash and partly by deferred payment. These are not the only forms in which compensation can be given. Thus under sub-section (3) of section 31 of the Land Acquisition Act, 1894 (Act of 1894), other property may, be given in exchange, or there may be a remission of Government, dues on other lands. In deciding on the particular forms between which the State Government may choose the legislature has applied its mind to the question and has prescribed the limits within which the State Government may exercise the discretion vested in it. So also as regards the manner in which is compensation shall be given the Act contains elaborate directions regarding payment. The term payment and its derivatives have been used widely and seem to cover the delivery of cash as well as the making over of the bonds, if any. It is further provided that, if there are bonds they will be redeemed in 40 equal instalments, but it is left to the State Government to determine the intervals between the instalments. That is to say, the legislature has determined that the bonds must be redeemable, and that the instalments should be of a particular size. It has left it to the legislature to decide when those instalments will be paid. Further, the legislature has provided that the bonds shall “carry” interest at 2½ per cent per annum leaving it to the legislature to decide when and at what intervals the interest will be paid. Finally, it has provided that if bonds are issued, they may be negotiable or non-negotiable, as the State Government may decide. The matters left to the discretion of the State are matters dependent on the condition of the State finances and on political and economic considerations of which the State Government may be taken to be a proper judge. The discretion given is very wide and at first I was inclined to doubt its constitutionality but, on a careful examination, I think that it satisfies the test in Narottamdas's case In these circumstances, it is not necessary to consider the wider question as to the power of the legislature to authorise the executive to perform “a function which, if not subordinate, would be essentially legislative” [Victorian Stevedoring and General Contracting Company Proprietary Limited and Meaks v. Dignan]
Point no. 9—The argument is that the Bihar Legislature committed a fraud on the Constitution by pretending to comply with clause (2) of Article 31 and to provide for compensation, although in fact the sums determined by those principles as payable to the expropriated proprietors and tenure-holders are not compensation. This point necessarily involves an, investigation of the question whether the sums determined by the principles laid down in the Act are compensation or not, an investigation which I have held that the Court is precluded, from making by reason of the assent under clause (4) of Article 31 of the Constitution. Apart from this consideration, I think there is no substance in the contention. There is no fraud on the Constitution because the Bihar Legislature had done exactly what the Constituent Assembly intended. The Constituent Assembly was anxious that legislation of the class to which the impugned Act belongs should be protected from challenge in the Courts so far as provision for compensation is concerned. Therefore, it entrusted the President with the responsibility for determining whether this essential of legislation for the acquisition of property was complied with. The Bill passed by the Bihar Legislature was duly submitted to the President for his scrutiny and we may take it that, when the President gave his assent, he was satisfied that there was provision for compensation. That the sum determinable under the provisions of the Act might not be compensation as understood by the Court is irrelevant.
Point no. 10.—The enforceability of the Act has been attacked on the ground that sub-section (2) of section 32 does not fix the intervals at which the forty equal instalments become payable. The omission to fix the intervals is really relevant under point no. 8. Either this is conditional legislation and the State Government may lawfully determine what the period is to be or it is a delegation of legislative power. In view of the Conclusion which I have arrived at there, this point is of no importance.
I am now in a position to record my findings on the issues framed.
Issue no. 1.—Is the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950) ultra vires the legislative powers of the State of Bihar?
Answer.—The Act is covered by entry 36 of Lists II and III in the Seventh Schedule to the Constitution. It is, therefore, not ultra vires of the legislative powers of the State Legislature.
Issue no. 2.—Is the said Act unconstitutional, unreasonable, inoperative and void if or the reasons mentioned in paragraph 5 of the plaint or any of them?
Answer.—The Act is void on the ground that it contravenes the provisions of Article 14 of the Constitution.
Issue no. 3.—Have the properties of the plaintiff vested in the State of Bihar under the said Act? If so, have they so vested under the authority of law?
Answer.—It follows from the finding on issue no. 2 that the properties of the plaintiffs have not vested in the State of Bihar.
Issue no. 4.—Can any question regarding compensation or principles for the determination and giving of compensation be raised in this suit in view of the assent of the President under clause (4) of Article 31 of the Constitution?
Answer.—The assent protects the Act from challenge on the ground that it contravenes the provision of clause (2) of Article 31. There can be no challenge regarding the adequacy of the compensation or the correctness of the principles prescribed by the Act for determining the compensation or of the manner in which the statute directs that the compensation is to be given. The assent does not protect the Act if there is no provision for compensation. It does not protect the Act from attack on a ground not arising under clause (2) of Article 31.
Issue no. 5.—Is the plaintiff entitled to any of the reliefs prayed for?
Answer.—The plaintiffs are entitled to have their suits decreed as proposed by Sheerer, J.
Das, J.:— The Act which is impugned in all these cases is the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950). For brevity and convenience, I shall hereinafter refer to it as the impugned Act. I venture to think that a brief history of the impugned legislation will not be out of place here.
History of the legislation.—An Act called the Bihar Abolition of Zamindaris Act, 1948 (Bihar Act XVIII of 1949) was passed by the Bihar Legislature, and received the assent of the Governor-General on the 6th of July 1949. This assent was first published in the Bihar Gazette, Extraordinary, of the 22nd July, 1949. That Act, which was the predecessor of the impugned Act, contained provisions similar to the provisions, of the impugned Act; but as the former Act was repealed by the latter, I confine myself to the impugned legislation only.
On the 9th of December 1949, the Bihar Land Reforms Bill was published under rule 83 of the Bihar Legislative Assembly Rules. On the 30th of December 1949, the Bill was introduced and referred to a Select Committee. On the 31st January 1950, the report of the Select Committee on the Bihar Land Reforms Bill, 1949, was submitted, and the same was published on the 1st of February 1950. On the 20th of April 1950, the Bill was passed by the Assembly. On the 4th of May 1950, the Bill was passed with certain amendments by the Council. On the 9th of May 1950, the Bill was finally passed by both Houses of the Bihar Legislature. On the 11th of September 1950, it received the assent of the President of India. On the 3rd October 1950, a Bill called the Bihar Land Reforms (Amendment) Bill, 1950, purporting to amend the long title of, the preamble to, and certain provisions of the impugned Act was introduced; this amending Bill was not, however, proceeded with, did not pass through all the stages of legislation, and remained a still-born child. On the 25th of September 1950, the impugned. Act with the assent of the President of India was first published. On that date, certain other notifications were also published: first, there was a notification under sub-section (3) of section 1 of the Act stating that the Act shall come into force on the 25th of September 1950; and then there were other notifications under sub-section (1) of section 3 of the impugned Act stating that the estates and tenures, described in certain schedules to the notifications, belonging to some of the leading landlords of the State including the Maharajadhiraj Sir Kameshwar Singh Bahadur of Darbhanga, have with effect from the 25th of September 1950, passed to and become vested in the State of Bihar under the provisions of the impugned Act.
A summary of the impugned Act.—It is now necessary to give a summary of the provisions of the impugned Act. The Act is divided into eight chapters, and contains forty-three sections. The long title and preamble are practically the same, and the latter reads—
“Whereas it is expedient to provide for the transference to the State of the interests of proprietors and tenure-holders in land and of the mortgagees and lessees of such interests including interests in trees, forests, fisheries, jalkars, ferries, hats, bazars, mines and minerals, and to provide for the constitution of a Land Commission for the State of Bihar with powers to advise the State Government on the agrarian policy to be pursued by the State Government consequent upon such transference and for other matters connected therewith, etc.”
The recital in the preamble has an important bearing on the question, to be discussed later, of the aims, objects or purposes of the Act: the two important objects for which the Act provides, as stated in the preamble, are—(1) transference to the State of the interests of proprietors and tenure-holders in land and of the mortgagees and lessees of such interests; and (2) the constitution of a Land Commission with powers to advise the State Government on the agrarian policy to be pursued by the State.
Chapter I deals with certain preliminary matters. Under section 1(3), the Act comes into force on such date as the State Government may by notification appoint. Section 2 is the definition or interpretation section. According to clause (h) of that section, “date of vesting” means the date of publication in the Official Gazette of the notification under sub-section (1) of section 3 in respect of the estate or tenure. Clauses (i) and (q) define ‘estate’ and ‘tenure’, and the important point to note about them is that they include a share in or of an estate or tenure, so that transference of a share in an estate or tenure is permissible. The expressions ‘lease’ (in relation to mines and minerals) and ‘mine’ have an artificial meaning, the former including a sub-lease, prospecting lease and even an agreement to lease and the latter meaning an excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on. It is not necessary to refer here to the other clauses of the definition section.
Chapter II is headed “Vesting of an Estate or Tenure in the State and its consequences”. It comprises sections 3 to 12. Section 3 is important. Under sub-section (1) of that section, the State Government may, from time to time, by notification, declare that the estates or tenures of a proprietor or tenure-holder, specified in the notification, have passed to and become vested in the State. Two points need to be stated here: one is that the sub-section gives the State Government an unfettered discretion or power to declare that the estates or tenures of a proprietor or tenure-holder have passed and become vested in the State, so that it may pick and choose; the second is that the declaration is in respect of the estates or tenures of a proprietor or tenure-holder—in other words, if the proprietor or tenure holder has only a share in the estate or tenure, it is that share which vests in the State. If the proprietor or tenure-holder has shares in more estates or tenures than one, all those shares pass on the making of the declaration in respect of that proprietor or tenure-holder. As the learned Advocate-General of Bihar put it, the scheme in sub-section (1) of section 3 is that a notification is to be made in respect of the estates or tenures of a proprietor or tenure-holder (the italics are mine): the transference to State-ownership is not estate by estate or tenure by tenure, but rather proprietor by proprietor or tenure-holder by tenure-holder. Section states the consequences of vesting; in brief, these are—
(a) the entire interest of the proprietor or tenure-bolder, free from incumbrance, including sub-soil rights, etc., passes to the State;
(b) all arrears of rent, royalty, etc., vest in the State;
(c) the liability to pay arrears of revenue and cesses does not, however, cease, and these can be recovered from the compensation money payable;
(d) all suits and proceedings to recover money, the payment of which is secured by a mortgage or charge on the estate or tenure are barred;
(e) the estate or tenure is not liable to attachment or sale;
(f) the Collector has the right to take charge and possession; and
(g) the Collector has the power to make certain enquiries, and set aside the settlement or lease of any land comprised in the estate or tenure made or created any time after the 1st day of January 1946.
Sections 5, 6 and 7 relate to—(1) homesteads, (2) lands in the khas possession of the proprietor or tenure-holder for agricultural or horticultural purposes, and (3) buildings or structures together with lands on which they stand in the possession of the proprietors and tenure-holders and used as golas, factories or mills, etc. These properties the proprietor or tenure-holder is entitled to retain, homesteads free of rent, but the other properties subject to the payment of rent as may be determined by the Collector in the prescribed manner. Section 8 provides an appeal against the order of the Collector. Sections 9, 10, 11 and 12 deal with mines and minerals. The mines which are being directly worked by the proprietor or tenure-holder shall be deemed to have been leased by the State Government to the proprietor or tenure-holder; the terms and conditions being settled by agreement between the parties and in the absence of any such agreement, by a Mines Tribunal appointed under section 12. Section 10 deals with subsisting, leases of mines and minerals comprised in the estate or tenure or any part thereof. These again will be deemed to have been leased by the State Government to the holder of the subsisting lease, the terms and conditions being the same as the terms and conditions of the subsisting lease, subject, however, to an important condition. The condition is that the State Government may terminate the lease if in its opinion the holder of the lease had not done any prospecting or development work, apparently without payment of any compensation to the lessee. The holder of any subsisting lease of mines and minerals is precluded from claiming damages from the outgoing proprietor or tenure-holder. Section 11 vests in the State all buildings and lands not included in the lease but which are in the use and occupation of the lessee for purposes connected with the working or extraction of the mines and minerals comprised in the lease.
Chapter III contains only one section, section 13, which says that all estates and tenures vested in the State shall be managed according to the rules for the management of Government estates. In a proviso to the section, there is a reference to a Gram Panchayat, and the State Government may, on such terms and conditions as it may fix, entrust the management of estates and tenures to the Executive Committee of, a Gram Panchayat.
Chapter IV which contains sections 14 to 18 deals with secured creditors, the determination of their claims by a Claims Officer, appeal against the decision of the Claims Officer, and the constitution of a Board for hearing such appeals.
Chapter V is important, and deals with the assessment of compensation. The assessment appears to be based primarily on income—income falling in two main categories, namely—(1) income from rents, cesses, etc., and (2) income from mines and minerals. Section 19 relates to the appointment of a Compensation Officer who will make the assessment. Section 20 says that in preparing an assessment every proprietor or tenure-holder shall be treated separately, and for the purposes of assessment the interests of the proprietor, or tenure-holder in all estates and tenures shall be treated jointly, in other words, the Act again proceeds, as I have already explained, proprietor by proprietor or tenure-holder by tenure-holder; sections 22 and 23 explain how the net income of a proprietor or tenure-holder in respect of Tents and cesses is to be computed; section 22 explains what is meant by “gross assets”, and section 23 explains how the net income is to be calculated by making certain deductions from the gross assets. In the gross assets enter such items as the aggregate of rents and cesses payable by raiyats, aggregate of rents determined by the Collector for certain kinds of land, gross income from fisheries, trees, jalkars, ferries, hats, bazars and sairati interests, gross income from forests calculated on the basis of average annual income of twenty-five agricultural years, and gross annual income of the previous agricultural year from any other interest. The deductions to be made under section 23 are land revenue, the sum payable as agricultural income-tax any sum payable as income-tax under the Indian Income-tax Act, Chaukidari tax, cost of management at certain rates to be presently mentioned, and lastly cost of works of benefit to the raiyats at certain rates laid down in the section. Now, the cost of management varies according to, and is dependent on, the gross assets. There is a slab system consisting of five slabs, beginning at the lower end with a case where the gross asset does not exceed Rs. 2,000 and ending at the upper end with the case where the gross asset exceeds Rs. 15,000. There is a similar (but not same) slab system with regard to the cost of works of benefit to the raiyats. The lowest slab consists of an estate or tenure where the gross assets does not exceed Rs. 5,000. The highest slab is that of an estate or tenure where the gross asset exceeds Rs. 20,000. The rates vary according to the slabs. In the highest slab, the deduction for the cost of management is not less than 15 per cent and not more than 20 per cent of the gross asset; and for the cost of works of benefit of the raiyats, the deduction is 12½ per cent of the gross asset.
Then, there is section 24 which introduces a third slab system. When the net income computed in the manner laid down in section 23 has been determined, the rate of compensation payable is a multiple of the net income. There are eleven slabs; in the lowest rung of the ladder is the case where the net income does not exceed Rs. 500, and in the highest rung is the case where the net income exceeds Rs. 1,00,000. The highest compensation payable is twenty times the net income; and the lowest is three times the net income; the lower the income, the higher is the compensation. With regard to arrears of rent, royalty, cess, etc., which also vest in the State, there is a provision that 50 per cent shall be paid and added to the compensation. From the compensation money are to be deducted any arrears of land revenue, the amounts to be paid in satisfaction of the claims of creditors, etc. With regard to mines and minerals, a computation is to be made of the gross income and net income from royalties, and the gross income and net income from mines worked directly by the proprietor or tenure-holder; thereafter, the amount of compensation payable shall be determined by agreement, if possible, but if no agreement is possible, then by a Tribunal.
It is worthy of note that there is no provision for payment, of compensation in respect of the following (a) unopened and undeveloped mines and minerals from which there is no present income; (b) trees in the shape of standing timber which do not yield any present income, but which may be of great value when felled; and (c) half the arrears of rent which vest in and are recoverable by the State.
Chapter VI deals with payment of compensation. Section 32(2) lays down that the amount of compensation shall be paid in cash or in bonds for partly in cash and partly in bonds; the bonds shall be either negotiable or non-negotiable and nontransferable and be payable in forty equal instalments, and shall carry interest at 2½ per cent per annum with effect from the date of issue. The section does not state at what intervals of time, the forty equal instalments shall be payable, nor does it lay down the proportion, if the compensation is to be paid partly in cash and partly in bonds. All these seem to have been left to be determined by the State Government by rules made under section 43 of the Act. Section 33 provides for making ad interim payments to a proprietor or tenure-holder.
Chapter VII deals with the constitution of a Bihar Land Commission. The only function of the Commission will be to advise the State Government generally with regard to the agrarian policy which the State Government should follow in administering the system of land revenue in the State. The function is purely advisory, and the State Government will not be bound by the opinion of the Land Commission.
[Chapter VIII is the last chapter, which contains miscellaneous provisions. Section 36 empowers the State Government to direct that any power which is conferred on it by the Act shall be exercised or discharged by any officer or authority Subordinate to the State Government. Section 43, another important section in this chapter, gives the State Government power to make rules on many matters including the proportion in which the 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.
Legislative competence: absence of power in the Legislature which enacted the impugned Act.—Now, the principal point for decision in these cases is if the impugned Act is unconstitutional. It has been contended that it is unconstitutional on various grounds. The first ground, which goes to the very root of the matter, is that the impugned legislation is ultra vires the Legislature which enacted it. Mr. P.R Das, appearing for the plaintiffs in Title Suits nos. 1 and 2 of 1951 and the petitioners in some of the miscellaneous judicial cases, put his arguments on this part of his case, so far as I have been able to appreciate them, in the following way. Article 245 of the Constitution, inter alia, states—
“Subject to the provisions of tin's Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State”.
Article 246 and the Articles which follow that Article relate to what is known as distribution of legislative powers. Put briefly, the position is that Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I of the Seventh Schedule (called the Union List); Parliament and, subject to the power mentioned above, the Legislature of any State specified in Part A or Part B of the First Schedule have power to make laws with respect to any of the matters enumerated in List III of the Seventh Schedule (called the Concurrent List); subject to the above powers, the Legislature of any State specified in Part A or Part B of the First Schedule has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II (called the State List). For our present purpose, it is not necessary to refer to the provisions of the Articles which follow Article 246, I go straight to the Seventh Schedule and the three Lists. Mr. P.R Das has referred to entry 36 of the State List which reads:
“Acquisition or requisition of property except for the purposes of the Union subject to the provisions of entry 42 of List III.”.
Entry 42 of the Concurrent List reads:
“Principles on which compensation for property acquired or requisition for the purposes 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.”
The contention of Mr. Das, stated very briefly, is that the power to make a law for acquisition of property under entry 36 above, is subject to the provisions of entry 42 of the Concurrent List, and the expression “subject to” means—(a) that the law so made must be for a public purpose, and (b) must determine the principles on which compensation for the property acquired is to be paid, and the form and manner in which such compensation is to be given. His argument is that the impugned Act compulsorily acquires the interests of proprietors and tenure-holders in land; but it is neither for a public: purpose, nor does it lay down the principles, form and manner of “compensation”, as that word is understood in law. According to him, the word “compensation” has a known legal significance and the Constituent Assembly must have used the term in that sense when it talked of principles, form and manner of compensation in entry 42. He has referred to the observations of Fletcher Moulton, L.J in In Re an Arbitration between Lucas and the Chesterfield Gas and Water Board. The observations are—
“The principles upon which compensation is assessed when land is taken under compulsory powers are well settled. The owner receives for the lands he gives up their equivalent, i.e, that which they were worth to him in money. His property is therefore not diminished in amount, but to that extent it is compulsorily changed in form. But the equivalent is estimated on the value to him, and not on the value to the purchaser, and hence it has from the first been recognised as an absolute rule that this value is to be estimated as it stood before the grant of the compulsory powers. The owner is only to receive compensation based upon the market value of his lands as they stood before the scheme was authorised by which they are put to public uses. Subject to that he is entitled to be paid the full price for his lands, and any and every element of value which they possess must be taken into consideration in so far as they increase the value to him.”
This meaning of the word “compensation” was accepted in many subsequent decisions, and it is not necessary to refer to them all. What Mr. Das contends is that by reason of the use of the expression “subject to” in entry 36 of the, State List, the power to make a law by a State Legislature under that entry is subject to certain conditions or qualifications, which qualifications or conditions are stated in entry 42 of the Concurrent List. His argument is that those conditions or qualifications not having been fulfilled, the impugned Act is ultra vires the Legislature which enacted it.
It would, I think, be convenient if I state here the reply of the learned Attorney-General, who appeared for the State of Bihar, with regard to this part of the case. The learned Attorney-General has based his reply primarily on two grounds; firstly, he contends that the impugned Act was made not necessarily under entry 36 of the State List, but under entry 18 of that List; secondly, assuming that the impugned Act was made under entry 36, the expression “subject to” occurring in that entry has not the meaning which Mr. Das gives to it. The learned Attorney-General states that the expression “subject to” merely restricts or cuts down the field of legislation, but does not import any conditions or qualifications. According to him, the idea was to put principles of compensation, etc., in the concurrent field of legislation, so as to attract the operation of Article 254 of the Constitution and make such legislation liable to control of Parliament. He has referred to various other entries in the three Lists where the expression “subject to” or a similar expression is used, and has contended that the expression has not the meaning suggested by Mr. P.R Das.
Having stated, in brief, the respective arguments on behalf of the parties before us, I now proceed to consider them and give my decision thereon.
The Constitution of India is an organic, basic statute, made by the Constituent Assembly representing the people of India. It constitutes India, as the preamble states, into a Sovereign Democratic Republic. It is not merely a mechanism under which laws are to be made but is something more than that: it creates and defines the essential foundation, general framework and structure of the States and their Union; it provides the rules in accordance with which powers of sovereignty are to be exercised; it embodies the ideals and aspirations of a nation; it lays down fundamental rights and provides remedies for enforcement of such rights in other words, it seeks to shape and mould the growth of the political, social and economic life of the nation. It is now well-settled that such a charter or document is not to be construed in any narrow and pedantic sense. It is true that the rules which apply to the interpretation of other statutes, apply equally to the interpretation of a constitutional enactment; but the application of those rules must always have reference to the subject matter of the enactment itself. (See the observations of Gwyer, C.J in In the matter of the Central Provinces and Berar Sales of Motor Spirit and Lubricant Taxation Act, 1938. Keeping the above rules in mind, I propose to examine the relevant provisions of the Constitution of India.
The power of the legislature to legislate on a subject, particularly in a written, federal constitution where there must be a nice balance of jurisdictions, can be looked at from two points of view—affirmative and negative. The conferment of the power is the affirmative aspect; a restraint or restriction on the exercise of the power is the negative aspect. It is important to remember that restraint may be imposed in different ways—by introducing words of limitation in the very entry which confers the power, or by substantive provisions to which the power to legislate is made subject, or even by delimiting the field of legislation. This distinction between the conferment of power and the restraint on power to which I am now referring is, I think, important in dealing with the arguments of the parties on this part of the case. The contention of Mr. Das is that the entry which confers the power itself imposes limitations; the argument of the learned Attorney-General is that the restrictions, if any, on the exercise of the power are to be found not in the legislative entries, but elsewhere, e.g, in the chapter on fundamental rights. Ordinarily, this distinction may be of little or no importance; because whether there is absence of power or the power has been exceeded by ignoring certain restraints, the result is the same, namely, the law made is unconstitutional. But there is a meaning and purpose in making the distinction in these cases; this arises because of clause (4) of Article 31 of the Constitution of India. I shall, later on, discuss the meaning and effect of clause (4) of Article 31. But it is clear that clause (4) seeks to get over a contravention of at least, one fundamental right, viz., that stated in clause (2) of Article 31. Mr. P.R Das is naturally anxious to steer clear, of clause (4) of Article 31, and has accordingly raised the more fundamental plea of absence of power. The learned Attorney-General is equally anxious to steer clear of that legislative entry which relates to compulsory acquisition of property by stating that the impugned Act is legislation, under entry 18 of the State List rather than entry 36. Both, if I may say so without meaning any disrespect, are extreme views; though expounded with consummate skill and rare advocacy. Entry 21 of List II of the Seventh Schedule of the Government of India Act, 1935, which corresponded to entry 18 of the State List of the Constitution of India, was considered by a Special Bench of this Court, of which, I was a member, in M.D Sir Kameshwar Singh v. Province Of Bihar*. The decisions bearing on the interpretation of that entry were also referred to therein, including the decision in Megh Raj v. Allah Rakhia. In the case of Thakur Jagannath Baksh Singh v. The United Provinces, Lord Wright pointed out that “to regulate the relations of landlord and tenant and thereby diminish rights, hitherto exercised by the landlord in connection with his land, is different from compulsory acquisition of the land”. He made those observations with reference to Section 299 of the Government of India Act, 1935, which dealt with compulsory acquisition of land, etc. Ordinarily, it is not important to know whether a legislature having plenary power to legislate on more subjects than one has exercised that power under one entry or the other: because if the power is there, it does not very much matter under what head it comes. Speaking generally, a comprehensive enactment like the impugned Act will probably come under several heads of legislation. If and when, however, there is a conflict of power or jurisdiction or the question of any restraint on power comes in, then it becomes important to know under what head or entry the power has been exercised. The pith and substance doctrine has often been resorted to, to resolve a conflict of jurisdiction. The true nature and scope of the enactment is, in my opinion, a relevant consideration in determining the question whether it comes under one head of legislation or the other, when the question of an absence of power or exceeding a restraint on power arises. In the classic case of Gallagher v. Lynn, the question that arose for consideration was whether certain limitations imposed on the power to legislate by the Parliament of Northern Ireland for the peace, order and good Government of Northern Ireland were exceeded or not one of the limitations being that the Parliament of Northern Ireland did not have power to make laws in respect of trade with any place out of the part of Ireland within their jurisdiction except so far as trade might be affected by the exercise of the powers of taxation, etc. The question was answered with reference to the true nature and character of the legislation. Lord Atkin said as follows:
“If, on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorised field. The legislation must not under the guise of dealing with one matter in fact encroach upon the forbidden field.”
The following observations of Latham, C.J in Bank of New South Wales v. The Commonwealth are, I think, relevant:
“In determining the validity of a law it is in the first place obviously necessary to construe the law and to determine its operation and effect (that is, to decide what the Act actually does), and in the second place to determine the relation of that which the Act does to a subject matter in respect of which it is contended that the relevant Parliament has power to make laws. A power to make laws with respect to a subject matter is a power to make laws which in reality and substance are laws upon the subject matter. It is not enough that a law should refer to the subject matter or apply to the subject matter; for example, income-tax laws apply to clergymen and to hotel-keepers as members of the public; but no one would describe an income-tax law as being, for that reason, a law with respect to clergymen or hotel-keeper. Building regulations apply to buildings erected for or by banks; but such regulations could not properly be described as laws with respect to banks or to banking.”
The point which I wish to emphasise, is that the limitation on the power of legislation may arise by reason of restrictions imposed within the entry which confers the power; and when the question of exceeding such a restriction arises, it is relevant to consider the true nature and character of the legislation.
In my view, in its true nature, scope and effect, the impugned Act is acquisition of property in the sense that it transfers to the State the entire or totality of interests of proprietors and tenure-holders in land and of the mortgagees and lessess of such interests, even though such transference be part of a general; scheme of land reform or a stage in the evolution of a new system of land tenure; it is still acquisition of property, though different from acquisition simpliciter. I think that it is no answer to say that entry 18 of the State List is comprehensive enough to include—rights, in or over land; land tenures including the relation of landlord and tenant; and the collection of rents. Entry 18 is undoubtedly very comprehensive, but the different entries in the State must be read together, in a broad and liberal spirit no doubt, but not so as to make one entry cancel or override another entry or make another entry meaningless. I am aware of the view expressed in several decisions that the entries are not mutually exclusive, and a certain amount of over-lapping is unavoidable when such a lengthy enumeration of subjects, as has been made in the Seventh Schedule, is attempted in a constitutional enactment. But if the comprehensive entry relating to land, etc. includes compulsory acquisition of land, it was unnecessary or meaningless to have an entry for compulsory acquisition. There are other general entries, such as. ‘Forests’, ‘Inns and inn-keepers’. I do not think that it can be argued with any show of reason that those general entries can be called to aid in support of legislation for acquisition of private forests, private inns or other kinds of private property. As was pointed out by Spens, C.J in Kunwar Lal Singh v. Central Provinces and Berar, acquisition implies that there must be an actual transference of and it must be possible to indicate some person or body to whom is or are transferred, the land or right in land.
Compulsory acquisition of property for a public purpose has a long legislative history behind it, which goes back to more than hundred years (see Bengal Regulation I of 1824). Even when the first classification of legislative subjects was attempted under the Devolution Rules made under the Government of India Act, 1919, (which introduced in India Provincial autonomy of a limited type, then commonly called dyarchy), “Land Revenue Administration including land tenures, collection of rent, etc., was distinguished and kept separate from ‘Land acquisition’. Since then, compulsory acquisition of property for a public purpose has always been a separate subject of legislation, and I do not think that the Constitution of India has made any departure from this long standing legislative practice.
I think the fact that the Bill was passed by the Legislature for the consideration of the President shows that it was considered to be in hit by clause (2) of Article 31 and the assent of the President was considered necessary under clause (3) of the said Article.
I hold, therefore, that the impugned Act is substantially referable to entry 36 of the State List, and entry 42 of the Concurrent List, so far it is necessary to enquire into the legislative entries under which it is enacted, even though the compulsory acquisition authorised by it be part of a general scheme of land reform.
But does that mean that the Legislature which enacted it had no power to enact it, by reason of the expression subject to in entry 36 and the provisions of entry 42. I think that the answer must be in the negative.
It is necessary to bear in mind the narrow scope of the argument of Mr. P.R Das on this point. For his argument, on the point of absence of power, he is not invoking the aid of any of the Articles in Part III (Fundamental Rights) of the Constitution of India. Article 13 of the Constitution states that all laws in force immediately before the commencement of the Constitution, in so far as they are inconsistent with any of the fundamental rights, shall, to the extent of such inconsistency, be void. It further states that the State, shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of clause (2) of Article 13 shall, to the extent of the contravention, be void. Article 245 which I quoted in an earlier part of this judgment, states clearly that the power to make laws is
“subject to the provisions of this Constitution”.
Article 31, clauses (1) and (2) read together, guarantees a fundamental right, namely, that no person shall be deprived of his property save by authority of law and that no property, movable or immovable, shall be taken possession of or acquired for public purposes finder any law authorizing: the taking of such possession unless the law provides for compensation for the property 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. To me, it seems clear that the provisions of Article 31, clauses (1) and (2), read with Articles 13 and 245, are a restraint on the power of law-making with regard to compulsory acquisition of property. On the question of absence of power, Mr. Das does not rely on those provisions, though must make it clear (to avoid any misunderstanding) that Mr. Das does rely on Article 13 and some other Articles in part III of the Constitution, for another branch of his argument which I shall presently consider. For his contention that the impugned legislation is ultra vires the legislature which enacted it. Mr. Das relies principally on the use of the expression “subject to” in entry 36, and the provisions of entry 42 of List III. I do not think that the expression “subject to” has the meaning sought to be given to it by Mr. Das. That expression has been used in several other entries where the meaning is not open to any doubt. Take, for example, entry 11 of List II. It relates to education including universities, subject to the provisions of entries 63, 64, 65 and 66 of List I. Those entries relate to the Benares Hindu University, the Aligarh Muslim University, the Delhi University, institutions for scientific or technical education, etc. The obvious meaning is that the State may make a law with respect to education including universities, but not with regard to the universities or institutions mentioned in entries 63, 64, etc., of List I. The same meaning can be gathered from many other entries. There is, I think, intrinsic evidence in the Constitution itself to show that the expression “subject to” has not the, meaning, sought to be given to it by Mr. Das. Clause (4) of Article 31 itself furnishes such evidence. If Mr. Das is right, then clause (4) of Article 31 becomes meaningless, as it cannot cure, the, defect of an initial, absence of legislative power. Take again clause (5), of Article 31. That clause says that nothing in clause (2) shall affect, among other things, 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, etc. If there is no power to legislate by reason of the use of the expression “subject to” in entry 36, then clause (5) of Article 31 becomes meaningless and cannot cure a defect of initial absence of power. Then there is another reason. Item 33 of List I refers to acquisition of property for the purposes of the Union. There is no such expression as “subject to” in this entry. If the contention of Mr. Das is accepted, then the position comes to this that a law made for the acquisition of property for the purpose's, of the Union is not subject to the provisions of entry, 42 of List III. I do not think that, it was ever intended that acquisition of property for, State purposes should be placed on a different footing from acquisition of property for Union purposes, in the sense suggested by Mr. Das.
I think that the argument of Mr. Das has been put in rather on extreme form, and the proper answer to the question is this all that expression “subject to” means is that, principles of compensation, etc., which have to be laid down for compulsory acquisition of property by reason of the provisions in Part III of the Constitution relate to and are a matter within the concurrent field of legislation, and a law relating thereto made by a State will attract the operation of Article 254 of the Constitution. I do not think that the expression “subject to” has any, other meaning; nor do I agree with Mr. N.C Chatterji, who followed Mr. Das in one of the cases, that, the expression “subject to” should be interpreted by reference to decisions relating to ordinary commercial or contractual transactions. Therefore, the correct position is that the proper legislature enacted the impugned legislation, and there was no initial absence of power in the sense in which Mr. Das wishes to infer it from the provisions of entry 36 of List II and entry 42 of List III. There are restrictions on the power to make laws with regard to acquisition of property, but those restrictions are to be found elsewhere in the Constitution. The question of those restrictions and how far they or any of them have been ignored or exceeded will be considered by me when I take up the question of fundamental rights, with particular reference to clause (4) of Article 31.
Purpose of the impugned Act; whether public purpose or not.—But before I do so, there is another point which must be dealt with. Mr. Das has contended that the impugned legislation compulsorily acquires the interests of proprietors and tenure-holders in land, but envisages no public purpose for such acquisition. It is contended that in the absence of a public purpose, the law is invalid.
In Sir Kameshwar Singh v. The Province of Bihar, I had expressed the following views with regard to sub-section (2) of Section 299 of the Government of India Act, 1935:—
“The effect of the two parts of the sub-section read together is clearly this it is not open to any legislature to make any law authorizing the compulsory acquisition of land unless the following two conditions are fulfilled. The first or rather inherent condition is that the compulsory acquisition must be for public purpose. It is true that sub-section (2) of section 299, as worded, does not, strictly speaking, make ‘public purpose’ a condition precedent, but rather assumes that compulsory acquisition can be for public purposes only, it makes ‘public purposes’, inherent in compulsory acquisition.”
I referred to the history of legislation on the subject of compulsory acquisition of property, and pointed out that the principle that such acquisition is made for “purposes of general convenience to the community or arrangement of public-utility” was always recognised in India. I think that the position is the same under the present Constitution of India. Entry 33 of List I talks of
“Acquisition or requisitioning of property for the purposes of the Union”.
Entry 36 of List II says,
“Acquisition or requisitioning of property, except for the purposes; of the Union, subject to the provisions of entry 42 of List III”.
Entry 42 of List III talks of
“Principles on which compensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose is to be determined, etc.”.
Three purposes are mentioned in these entries: (1) purposes of the Union; (2) purposes of the State; and (3) any other public purpose. The use of the word ‘other’ indicates that the purposes of the Union or of a State are also public purposes. Article 31 of the Constitution, which relates to compulsory acquisition of property says in clause (1):
“No person shall be deprived of his property save by authority of law.”
Clause (2) reads:
“No property, movable or immovable, including any interest in or in any company owning any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under arty 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.”
Clause (2), strictly speaking does not, in express words, make ‘public purposes’ a condition precedent to compulsory acquisition, but rather assumes that such acquisition can be for public purposes only; it does so by necessary implication. In dealing with Article 31, his Lordship Mukherjea, J., in Charanjit Lal Chowdhury v. The Union of India observed, as follows:—
“It is a right inherent in every sovereign to take an appropriate private property belonging to individual citizens for public use. This right, which is described as eminent domain in American law, is like the power of taxation, an off-spring of political necessity, and it is supposed to be based upon an implied reservation by Government that private property acquired by its citizens, under its protection may be taken or its use controlled for public benefit irrespective of the wishes of the owner. Article 31(2) of the Constitution prescribes a twofold limit within which such superior right of the State should be exercised. One limitation imposed upon acquisition or taking possession of private property which is implied in the clause is that such taking must be for public purpose. The other condition is that no property can be taken, unless the law which authorizes such appropriation contains a provision for payment of compensation in the manner laid down in the clause.”
There is thus, high authority for the contention of Mr. Das that an inherent condition of any legislation for compulsory acquisition of private property by the State is that it must be for a public purpose.
The right of eminent domain has been stated, by American jurists to be the power of the sovereign to take property for public use without the owner's consent. Nichols in his Law of Eminent Domain (volume I, page 2) thus, states the meaning of the power in its irreducible terms:—
(a) power, to take;
(b) without the owner's consent; and
(c) for the public use.
Willis has pointed out that the right of eminent domain is “an implied power of the federal government, implied either from the limitation in the Fifth Amendment, or because necessary and proper to carry out other express powers of the federal government, or implied from the grant of legislative power”— (Willis on Constitutional Law, Chapter XXVIII, page 814). The Fifth Amendment to the United States Constitution contains the limitation
“nor shall private property be taken for a public use, without, just compensation”,
and all the State constitutions in America, except three (Kansas, New Hampshire and North Carolina), contain in express prohibitions against the taking of private property for public use without compensation. Willis observes:—
“Since three States have no express limitation, and other States might not apply their express limitations as due process would be applied by the United States Supreme Court, it became important to decide whether or not the due process clause as a matter of substance protects personal liberty against social control so far as concerns eminent domain. The United States Supreme Court has definitely held that the due process clause does have this effect. It has held that it applies to State action so that States cannot take private property, for a public use without compensation, and that private property cannot be taken for a private use even upon the payment of compensation either by the States or by; the Federal Government. These cases make the due process clause cover not only the scope, of the express limitation in the Fifth Amendment, but everything else involved in eminent domain. It is due process of law to take private property for a public use whenever just compensation is made. This is, therefore, constitutional social control” (Willis on Constitutional Law, Chapter XXVIII, pages 814-15.)
Nichols has pointed out that the term “dominium, eminens” (eminent domain) seems to have been originated in 1625 by Hugo Grotius, who wrote of this power in his work, “De Jure Belli et Pacis”. He has further pointed out that the definitions and discussions of this right by political writers of the seventeenth and eighteenth centuries in Europe are of great importance in determining the extent of the power of eminent domain under American constitutions, for it is known that the authors of American constitutions were familiar with those writings.
I have referred to these observations not for any academic or pedantic purpose. My purpose is to show that the idea of “public use or public purpose” as an inherent or implied condition to the compulsory acquisition of private property by the State owed its origin in America to politico-historical reasons; the idea was further developed by reason of the limitation in the Fifth Amendment and the due process clause in the American Constitutions in a way which was peculiar to America. This must be borne in mind while considering American, decisions; otherwise, there is a danger in following them or relying on commentaries made thereon by eminent American jurists, with regard to a constitution where the due process clause was deliberately omitted. The ideas which entered into the American political heritage of the eighteenth century exercised considerable influence over the makers of the American Constitutions, and the American decisions must be construed against the background of those ideas.
The expression “public use” or “public purpose” has not been defined. Mr. Das has contended that it must be particular, fixed and definite. He has referred to Weaver on “Constitutional Law and its Administration”, where the learned commentator has said:
“What constitutes a public use is largely a question for the legislature, and the courts will not interfere except to inquire whether the legislature could reasonably have considered the use a public one. Generally, the phrase is not limited to business] necessity and ordinary convenience, but may extend to matters of public health, recreation and enjoyment. It may include not, only the present demands of the public, but also those which may be fairly anticipated in the future. The courts, however, require that the use shall be fixed and definite. It must be one in which the public actually has an interest, and the terms and manner of enjoyment must be within the control of the State.” (Weaver on Constitutional Law and its Administration at page 546.)
Cooley in Constitutional Limitations thus summarised the position:
“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’ — ‘occupation’. A more liberal and more flexible meaning makes its 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 expected, the more limited application of the principle appears 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 interdependence 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 formerly.” (Cooley's Constitutional Limitations, Volume II, page 1139-1140.)
I have already referred to the two purposes which are mentioned in the preamble of the impugned Act. In an affidavit filed on behalf of the State of Bihar, three other objects or purposes are suggested. It is alleged therein that the landlords as a class neglected to maintain the irrigation system, failed to bring to cultivation culturable waste lands and frittered away forests and mineral resources of the State. The suggestion is that when the interests of the proprietors and tenure-holders are transferred to the State, the State will be able to look after irrigation works, bring culturable waste lands to cultivation and conserve forests and mineral resources. Mr. Das has challenged the correctness of these allegations made in the affidavit referred to above, and has drawn our attention to several affidavits filed on behalf of his clients. He has pointed out that there never was any general or absolute duty on the landlords to maintain irrigation works, but such maintenance was a matter of custom or contractual incident of the tenancy. He, has also drawn our attention to the Bihar Private Irrigation Works Act under which it was open to the State Government to take necessary action in the matter of maintenance of works of irrigation. With regard to forests, he has drawn our attention to the affidavit of one Parmeshwar Prasad Sinha which showed how forests in possession of the State were damaged or destroyed. He has pointed out that in the Land Revenue Administration Report of 1945–1946, the number of recorded proprietors of estates was 845,103, and the number of recorded tenure-holders was 490,816. He pointed out that the area of culturable waste lands was very small; and in any view, there was already in the statute book an Act called the Waste Lands Reclamation Act (Act XVI of 1946) under which it was possible to take necessary action by the State. The sum and substance of Mr. Das's contention is that the transference of the interests of the proprietors and tenure-holders to the State by the impugned Act has not been shown to be for any public purpose; within the meaning of that expression as understood in American decisions and in the commentaries of, American Jurists. He has pointed out that there is no provision in the impugned Act for an equitable distribution of land; nor for cultivation of waste lands, if any. He has stated that, in spite of the deduction for cost of works of benefit to the raiyats (which deduction, according to him, is meant only for the purpose of artificially reducing the compensation), the impugned Act does not compel Government to spend a pice for the benefit of raiyats. It provides, just for transference of interests, followed possibly by augmentation of public revenues. According to him, if the purpose be to augment public revenues, that would not be a public purpose within the meaning of that expression. (See Willis on Constitutional Law, page 817, line 2.)
This question whether there is any public purpose for the impugned Act has caused me considerable anxiety. In Sir Kameshwar Singh v. The Province of Bihar, we had occasion to deal with the Bihar State Management of Estates and Tenures Act (Act XXI of 1948). I referred therein to the decision in Hamabhai Framjee Petit v. Secretary of State where it was observed:
“Whatever else the expression may mean it 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.”
That was a case, as has been rightly pointed out by the learned Attorney-General, regarding the meaning of the expression “public purpose” occurring in a lease by the. East India Company, and not in the Act of a sovereign legislature. After referring to the various provisions of the Bihar State Management of Estates and Tenures Act, 1949, I said:
“I have very carefully considered the provisions of the impugned Act, but find it very difficult to hold that the acquisition or deprivation of rights in land therein provided was for a public purpose. No public purpose as envisaged by the tests mentioned above is apparent either from the preamble or the provisions of the impugned Act. The provisions of the impugned Act do not benefit the State pecuniarily. It is conceded by Mr. Lalnarain Sinha that the State gets no benefit. The tenants get no benefit either: the provision for irrigation costs is highly problematic or hypothetical. I can find nothing in the provisions to avoid conflicts between landlords and tenants or give larger rights to tenants. As far as one can make out, the impugned Act is intended either as an experiment, without incurring any cost, of large scale management of estates, or as a confiscation of rights, in land, without payment of compensation.”
That Act, in the view which I held, was a mere pejorative imitation of the Chota Nagpur Encumbered Estates Act, 1876, and provided for a number of things possession, deprivation, repudiation, etc.— without any scheme of land reform or full-scale acquisition of property for land reform. In those circumstances, I expressed the view that there was no apparent or real public purpose behind it. At the same time I guarded myself against saying that in no circumstances could there be a public purpose in acquiring zamindaris or in acquiring the interest of intermediaries or rent collectors, either in exercise of the right of eminent domain or in exercise of the police powers of the State. I made it quite clear that all that I said in that case about a public purpose related solely to the provisions of the Act which was under consideration in the case.
The learned. Attorney-General has contended before us that in dealing with the Act of a sovereign legislature, the expression “public purpose” must, be interpreted in a liberal and comprehensive sense. In my opinion, the learned Attorney-General is right. I have already referred to the three entries in the Legislative Lists which show that purposes of the Union and purposes of the State stand on the same footing as other public purposes. This, by itself, would enlarge the meaning of the expression “public purpose”; in any case, would give it a meaning wider than what was arrived at in America by the due process clause. In the Australian Constitution, the Commonwealth Parliament is empowered by section 51(xxxi) of the Constitution to make laws with respect to:
“The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws,”
I have underlined the words which I consider to be of some importance. Union purposes or State purposes would, in my opinion, be somewhat similar to the words used in the placitum quoted above. Dealing with this power of the Commonwealth Parliament in Australia, Dr. Wynes says as follows:
“Probably, sub-section (xxxi) both widens and limits the conditions of exercise of the power which would otherwise come within the incidental power—enlarges it to cover cases of direct acquisition, simpliciter without the necessity of mere acquisition as part of a scheme, and limits, the conditions of exercise to take ‘on just terms’.”
“The Commonwealth power is limited in two respects: (a) the acquisition is to be ‘on just terms’ and (b) it must be in respect of some purpose in respect of which the Parliament has power to make laws.” (See Wynes on Legislative and Executive Powers in Australia, pages 247-248.)
On the question of the purpose of acquisition, the Commonwealth power is limited by the provision that the acquisition must be for some purpose with respect to which Parliament has power to make laws, while in America the power of eminent domain is limited to taking for a public use (or purpose), and what is public use is a question cognizable by the Courts in the State as well as in the United States, in accordance with a line of decisions which refined and developed the due process clause. Dr. Wynes then says:
“The suggestion that the Commonwealth power is probably limited to acquisition for public purposes, that the test of validity is whether the acquisition is for a ‘public purpose’ and that the American cases as to what is a public purpose may be applicable in Australia, is submitted to be clearly incorrect. The subtle refinements and distinctions which are perceptible in the numerous American cases on this matter are not applicable in this country, where the sole test is whether the property has been acquired for a purpose in respect of which the Commonwealth has legislative power.”
Even without going to the length suggested by Dr. Wynes, it is permissible, I think, to hold, on the words used in entry 33 of List I, entry 36 of List II and entry 42 of List III, that the connotation of the expression “public purpose” in the Indian Constitution is fairly wide—and comprehensive, because it embraces all purposes of the Union or a State. It cannot, I think, be denied that acquisition of intermediate interests in land as part of a scheme of land reform is a legitimate and valid State purpose. The learned Attorney-General has drawn our attention to the use of the expression “public purpose” in other Darts of the Constitution, e.g, in Article 23(2) of the Constitution. Clause (2) of Article 23 is in the nature of a proviso or exception to clause (1) of Article 23, which prohibits traffic in human beings and begar and other similar form of forced labour. Clause (2) States that nothing in the Article shall prevent the State, from imposing compulsory service for public purposes. It is obvious that the expression “public purposes” occurring in clause (2) is used in a wide and comprehensive sense.
Another point to, be kept in mind is that “public purpose” with reference to direct acquisition simpliciter of the property of an individual must stand on a somewhat different footing from, that of acquisition of property of a class of individuals as part of a general scheme. In the former case, the purpose must be fairly obvious to everybody. In Province of Bombay v. Khushaldas S. Advani, his Lordship Fazl Ali, J., made the following observations with regard to such cases:
“Indeed, it appears to me that in a large majority of cases no inquiry should be necessary as the existence of a public purpose would be self-evident or obvious, and a mere reference to the purpose will make any one say this is of course a public purpose.”
His Lordship further pointed out that “since the question as to whether it is necessary or expedient to acquire land (given a public purpose) has been left entirely to the satisfaction of the Provincial Government, the opinion formed by it, provided it was formed in good faith, cannot be questioned: but the same cannot be said with regard to the decision of the executive as to the existence of a public purpose, which is the foundation of its power and is a condition precedent to its exercise”. It is to be remembered, however, that these observations were made by his Lordship in respect of the power of the executive, with reference to the words used in section 3 of the Bombay Land Acquisition Ordinance. The validity of the Ordinance itself was not the subject matter of that decision.
In the class of cases where acquisition of property of a large number of individuals is being made as part of a general scheme, say, of land reform, there must necessarily be some difference of opinion as to whether the scheme is for the general benefit or not. Such a difference of opinion has existed with regard to the Permanent Settlement for a very long time. In the course of arguments before as, repeated references were made to the Report of the Land Revenue Commission, Bengal (Floud Commission), and observations of learned authors who had occasion to consider the merits and demerits of the two systems of land tenure known as zamindari and rayatwari. At pages 41 to 43 of the Report, is set out the majority view of the Floud Commission. The majority concludes as follows:
“A majority of the Commission have, also come to the conclusion that the zamindari system has developed so many defects that it has ceased to serve any national interest. No half measures will satisfactorily remedy its defects. Provided that a practicable scheme can he demised to acquire the interests of all classes of rent-receivers on reasonable terms, the policy should be to aim at bringing the actual cultivators into the position of tenants holding directly under Government.”.
Some of the defects of the zamindari system were mentioned by Baden-Powell in his Land systems of British India, Volume I page 407. It is I think, unnecessary to refer to all the documents which have been, placed before us with regard to the history of landlordism or the merits and demerits of the two systems of land tenure. We have been referred to the resolution of the Government of India dated the 16th of January 1902, the final report of the Famine Enquiry Commission of 1946 and various other documents. It is, I think, unnecessary to consider these documents, because I do not think that it is our duty to investigate into the question whether a particular scheme of reform is good or bad. The position, as I understand it, is that it is a question for the appropriate legislature and the Courts will only enquire whether the legislature could reasonably have considered such, a scheme as the transference of the interests of proprietors and tenure-holders in land to the State, to be a public purpose. It is clear to me that the legislature could do so: it could take the view that such transference was necessary as part of a general scheme of land reform, or as a stage in the evolution of a better system of land, revenue, or even as a step towards better management and cultivation of land. Whether the legislature is right or wrong is not for us to decide; for us the test is—could the legislature reasonably take such a view?
One must, I think, bear in mind that the Constitution of India was made in 1950, by which year the conception of social control all the world over had undergone very considerable change. Even in countries other than India similar schemes of social control had raised constitutional questions. As one American author put it, “every legal system for a living society, even when embodied in a written constitution, must itself be alive. It is not merely the imprisonment of the past; it is also the unfolding of the future”. Justice Holmes declared in 1904, “Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine” Missouri, K. & T.R Co. v. May.
I had examined such statutes as the Bank of England Act, 1946 (9 & 10 Geo. Ch. 27) and the Coal Industry Nationalisation Act, 1946 (9 & 10 Geo. 6 Ch. 59), which were passed in England in recent years as part of a scheme of nationalisation. In England, there is no written constitution, and Parliament, is sovereign. The public purpose for enactments of the nature referred to above, cannot, I think, be determined in the same way or by the same standard as the purpose of a direct acquisition simpliciter of the property of an individual.
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. Furthermore, there is indication that the Constituent Assembly, representing the people of India which made the Constitution, was itself aware of the existence of legislation of the nature of the 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. The learned Attorney-General has referred to the debates in the Constituent Assembly to show that the Bihar Abolition of Zamindaris Bill, 1949, and certain other Bills of a similar nature were also pending in other State Legislatures at the time when the Constituent Assembly was discussing the provisions of Article 31. I agree that neither the validity nor the interpretation of a statute can be allowed to depend upon what members, whether Ministers or not, choose to say in Parliamentary debates. But the debates can be looked into for ascertaining historical facts, viz., that certain Bills were pending at the time when Article 31 was being considered, and that clause (4) of Article 31 referred to such Bills. If the legislation then pending was not for a public purpose, it was, indeed, surprising that the Constituent Assembly tried to save such legislation by means of the provisions 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 [see Old Dominion Land Co. v. United States of America].
For the reasons given above, I hold that the impugned Act does not fall for want of a public purpose.
Fundamental Rights: contravention, if any, and the effect of clause (4) of Article 31.—I now proceed to consider if any of the provisions in Part III (Fundamental Rights) of the Constitution of India, have been contravened by the impugned Act, and if so, with what effect, I shall also consider to what extent clause (4) of Article 31 prevents us from calling in question the impugned Act on the ground of any such contravention.
Mr. Das has contended—(1) that the impugned Act contravenes the provisions of Article 19(1)(f) of the Constitution, and is not saved by clause (5) of the said. Article; (2) that it contravenes Article 31(1) of the Constitution, and is not saved by clause (4) of the said Article; and (3) that it contravenes the provisions of Article 14 of the Constitution, and is accordingly void under Article 13(2) of the Constitution. The first two contentions can, I think, be disposed of easily. In Kameshwar Singh v. The Province of Bihar, I had pointed out that when the property itself is acquired by the State, the right mentioned in Article 19(1)(f) can have no application; because the provisions of Article 31 are in the nature of special provisions, and the general right to freedom must yield to the special provisions relating to acquisition of property. I still adhere to that view. Even assuming that Article 19 refers to a matter different from the subject matter of Article 31, I do not think that there is any scope for the application of the provisions of Article 19(1)(f) in a case where the property itself has been acquired for public purposes. When the property itself has been acquired, how can the citizen say that he still has the right to acquire, hold and dispose of the property? In the view which I have taken it is unnecessary to decide whether clause (5) of Article 19 saves the impugned Act or not; that question does not really arise.
As to Article 31(1), the contention of Mr. Das is that the words “by authority of law” do not mean the particular law which expropriates, but means the general law, the lex terroe of the Magna Charta. Mr. Das conceded, however, that in view of the decision of the Supreme Court in Gopalan's case, be was not in a position to press this contention in this Court, but would reserve his right to press the point at a later stage if and when the occasion, arises. There is one other point in this connection. If it were held that the impugned Act authorises compulsory acquisition of private property without a public purpose, the Act may be held invalid under clause (1) of Article 31, provided clauses (1) and (2) of Article 31 are and can be read together. The word ‘law’ in Article 31 does not appear to have been used in exactly in the same sense in all the clauses: the context makes that quite clear. In clause (1) of Article 31, the expression ‘law’ must, I think, mean a valid law. If public purpose is an implied or inherent condition to legislation on the subject of compulsory acquisition of private property by the State, then a law which is made in contravention of this implied condition, will not be a valid law within the meaning of clause (1) of Article 31 of the Constitution. I am further of the view that an invalidity of that nature will not be cured by the assent of the President. This point of view I explained in some detail in Kameshwar Singh's case, and I have no desire to repeat what I said there. However, that question does not really arise in view of my finding on ‘public purpose’, and it is unnecessary to say anything more about the vexed question if clauses (1) and (2) of Article 31 should be construed conjunctively or disjunctively, or if the expression ‘deprived’ in clause (1) means deprivation of a nature other than by acquisition.
Now, remains the third contention, viz., whether the impugned Act contravenes Article 14 of the Constitution and if so, with what effect. This is the most important question in these cases, and requires a very careful consideration.
Article 14 of the Constitution appears to be based on the Fourteenth Amendment to the Constitution of the United States of America, which Amendment was adopted soon after the close of the Civil War in America, and had its origin in the purpose to secure to the people of the coloured race the full enjoyment of their civil rights. The relevant portion of the Fourteenth Amendment reads:—
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due, process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In the Indian Constitution Article 14 reads—.
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
It has been stated that the equality of rights is a basic principle of republicanism (Weaver on Constitutional Law, page 393). A classic exposition of the principle occurs in a judgment of Justice Field; given as far back as 1884, in Barbier v. Connolly. The learned Judge said:—
“This clause undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty or arbitrary spoliation of property but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue, their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one except as applied to the same, pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and conditions, and in the administration of criminal justice no different or higher punishment should be imposed upon, one than such as is prescribed to all for like offences.”
A large number of American decisions on the question were cited at the Bar; but we are, to some extent, relieved from the duty of considering all these decisions in detail, in view of the decision of the Supreme Court of India in Charanjit Lal Chowdhury v. Union of India, where a number of the same American decisions as were cited before us, were considered, and certain principles were approved. These principles are summarized by Willis in a paragraph headed “and Effect of the Guaranty”, at page 579 in the Constitutional Law of the United States. His Lordship Fazl Ali, J., of the Supreme Court of India accepted the summary as a correct statement of the law on the equal protection clause in the American Constitution [vide Charanjitial v. Union of India. Three of these principles referred to by Willis have a direct bearing on the question before us. These three principles are—
(1) The guaranty of the equal protection of the laws means the protection of equal laws.
(2) It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction; it merely requires, that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed.
(3) Mathematical nicety and perfect equality are not required, and one who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis.
I now proceed to consider the arguments advanced before us on this part of the case in the light of the principles stated above. Mr. Das has contended that section 3 of the impugned Act gives an arbitrary and naked power to the State Government, untrammelled by any considerations, to pick and choose estates or tenures of any particular proprietor or tenure-holders and say that they have passed to and become vested in the State, while no action is taken against other proprietors or tenure-holders standing in like circumstances and conditions. It is stated that, as a matter of fact, the estates and tenures of some of the big landlords have only been notified so far. Mr. Das has referred to certain affidavits filed on behalf of his clients. In one of the affidavits (that of Lakshman Nidhi), a statement of the gross income, etc., has been made, and the statement shows that the net income from the estates and tenures of the Maharajadhiraj, calculated under the provisions of the impugned Act, will be in the neighbourhood of three lakhs only. On that basis, the compensation payable to him will be about ten lakhs. A statement of the arrears, of rent payable to the Maharajadhiraj, the estimated value of the standing timber in the estates of the Maharajadhiraj, a statement showing details of land settlement from the 2nd of January 1946, etc., have also been put in. The statement of arrears shows that the balance outstanding at the end of 1357 Fasli was in the neighbourhood of thirty lakhs. It is stated that even deducting fifty per cent, the State Government will get from arrears of rent more than what it will have to pay as compensation; in other words, half the arrears of rent are made to pay for all the estates and tenures of the Maharajadhiraj Bahadur. In Miscellaneous Judicial Case no. 239 of 1950 of which the petitioner is Raja Prithichand Lal Choudhury, an affidavit discloses that the gross assets amount to Rs. 10 lakhs and odd, whereas the deductions as per the impugned Act will exceed the gross assets. These statements have not been controverted, and Mr. Das contends that they show how section 3 will operate in practice. He states that the State Government will take, at the beginning, the estates and tenures of such landlords only to whom very little compensation is to be made or to whom the payment can be made from the arrears of rent or other accumulated resources; thus, the estates of these big landlords will be made to pay for other smaller estates where the scale of compensation payable is higher and there are no arrears of rent or other resources. The contention of Mr. Das is that the Reflect of section 3 has to be considered in the light of these facts and circumstances, and if so considered, the effect is to give arbitrary power to the State Government to pick and choose a power which is not a reasonable discretion, but which clearly contravenes the equality provision of the Indian Constitution. Mr. Das placed strong reliance on the decision in Yick Wo v. Peter Hopkins, where the plaintiff in error was a native of China who had been found, guilty of a violation of certain ordinances, which made it unlawful for any person or persons to establish, maintain or carry on a laundry within the corporate limits of the City and County of San Francisco without having first obtained the consent of a board of supervisors, except the same be located in a building constructed either of brick or stone, etc. The Supreme Court of California considered the ordinance as vesting in the board of supervisors, a not unusual discretion in granting or withholding their assent to the use of wooden buildings as laundries, to be exercised in reference to the circumstances of each case, with a view to the protection of the public against the dangers of fire. The Supreme Court of America held otherwise, and Matthews, J. who delivered the opinion of the Court, said as follows:—
“We are not able to concur in that interpretation of the power conferred upon the supervisors. There is nothing in the ordinances which points to such a regulation of the business of keeping and conducting laundries. They seem intended to confer, and actually do confer, not a discretion to be exercised upon a consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent, not only as to places, but as to persons.”
The learned Attorney-General sought to distinguish this decision on the footing that Matthews, J., based his decision not on the invalidity of the 3 ordinances, but on the ground of discrimination in actual operation of the ordinances. It is true that Matthews, J., said:
“In the present case, we are not obliged to reason from the probable to the actual and pass upon the validity of the ordinances complained of as tried merely by the opportunities which their terms, afford of unequal and unjust discrimination in their administration. For the cases present the ordinances in actual operation, and the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion that whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration, and thus representing the State itself, with mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the Fourteenth Amendment to the Constitution of the United States. Though the law itself be fair on its face and impartial in appearance, yet if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to maker unjust and illegal discriminations between persons in similar circumstances, material to their rights, the a denial of equal justice is still within the prohibition of the Constitution.”
But if the judgment is read as a whole, it would appear that the ordinances themselves were held to be invalid, and Matthews, J., referred with approval to the decision in Baltimore v. Redecke, which, held that where the legislature commits to the unrestrained will of a single public officer the power to notify every person who employs a steam engine in the prosecution of any business in the City of Baltimore to cease to do so, and by providing compulsory fines for every day's disobedience of such notice and order of removal, renders his power over the use of steam in that city practically absolute, so that he may prohibit its use altogether, the legislature practically gives a single individual uncontrolled power, and thus violates the principle that equal protection of the laws is a pledge of the protection of equal laws. The decision was so understood by the Supreme Court itself in Homer Adolph Plessy v. John H. Ferguson, where it was observed—
“Thus in Yick Wo v. Hopkins, it was held by this Court that a municipal ordinance of the City of San Francisco to regulate the carrying on a public laundries within the limits of the municipality violated the provisions of the Constitution if it conferred upon the municipal authorities arbitrary power, at their own will and without regard to discretion, in the legal sense of the term, to give or withhold consent as to persons or places without regard to the competency of persons applying, or propriety of the places selected for the carrying on of the business.”
The learned Attorney-General has sought to justify section 3 on the ground of administrative convenience, and has relied on the decision People of State of New York ex re. Simon Lieberman v. John E. Van De Carr, Warden. I do not think that decision really helps the learned Attorney-General. The question in that case was the validity of section 6 of the Sanitary Code of New York. The section was as follows:—
“Section 66.—No milk shall be received, held, kept, either for sale or delivered in the city of New York, without a permit in writing from the board of health, and subject to the conditions thereof.”
The contention of Counsel for the plaintiff in error was not that a business so directly affecting the health of the inhabitants of the city as the furnishing of milk might not be the subject of regulation under the authority of the State, but that the court of appeals of New York had sustained this right of regulation to the extent of authorizing the board of health to exercise arbitrary power in the selection of those it might see fit to permit to sell milk under section quoted; and thus construed, it worked the deprivation of the plaintiff in error's liberty and property without due process of law. This contention was repelled, and Day, J., who delivered the opinion of the court, said:—
“We do not so understand the decision of the highest court of New York. As we read it, the authority sustained is the grant of power to issue or withhold permits in the honest exercise of a reasonable discretion. In the opinion of the appellate division, whose judgment was affirmed in the court of appeals, it was said: ‘Such regulations, however, should be uniform, and the board should not act arbitrarily; and if this section of the Sanitary Code vested in them arbitrary power to license one dealer (in a lawful commodity) and refuse a license to another similarly situated, undoubtedly it would be invalid [Yick Wo v. Hopkins]; but such was not its purpose, nor is that its fair construction.”
It appears to me that there is no real conflict between the decision in Yick Wo's case and the decision which Day, J., gave in People of the State of New York ex rel. Simon Lieberman's case. The question was really one of construction of section 66 of the Sanitary Code of the city of New York, and it was held that all that section 66 did was to authorise the exercise of a reasonable discretion.
In the case before us, the position is different. I agree that with the best of intentions, it would, be impossible for the State Government to take over all the estates and tenures at the same time; nor do they propose to do so. The process of taking over will: undoubtedly spread over a number of years. In the meantime there is bound to be unequal treatment. The impugned Act does not prescribe any safeguards or rules, nor does it lay down any stages, indicative of how the process is to be worked out. On the contrary, it leaves the whole matter to the unfettered discretion of the State Government. Even in respect of the same estate or tenure, the operation of section 3 will result in an invidious distinction the interest of one co-sharer will be taken while the interest of other co-sharers will remain intact, because the scheme of section 3 is to take not estate by estate but proprietor by proprietor. On what reasonable basis can such a distinction be supported? I can find none. In the estates and tenures of the plaintiff Maharajadhiraj, there are, it is stated, several co-sharers who have been left unaffected. The affidavits of thirteen such co-sharers have been filed before us. I should have thought that, administratively, it would be more convenient to acquire the entire interest in one estate before proceeding to take another. It should be made clear that some of these co-sharers are co-sharers in the parent estate or tenure and not in subordinate tenures, so that the argument that unless the parent estate is taken subordinate tenures cannot be taken will not hold water. If there were anything in the impugned Act to show that section 3 was meant to get over or adjust administrative inconvenience or that in actual operation it would have that effect, one might hold that the discretion given by section 3 was a reasonable discretion. I am aware that every fact which it is possible for us to assume, must be assumed in favour of the constitutionality of an enactment; but giving my best consideration to all the facts and circumstances, I am of the view that it is not possible to sustain section 3 on the ground that it gives a reasonable discretion to the State Government. On the contrary, it seems to me that, having regard to the scheme of operation of section 3, it gives such an unrestrained power that it is bound to result in discrimination between members of the same class standing in like circumstances and conditions; in other words, it denies the protection of equal laws.
The other ground of inequality which Mr. P.R Das has urged, relates primarily to the three slab systems in sections 23 and 24 of the impugned Act. That ground has been so fully covered by my learned brother Reuben, J., that I shall not be justified in repeating all that he has said, except to state that I respectfully agree with him on this point and make a few additional observations. The three slabs work unequally in various ways, and it is difficult to justify them on the principle of reasonable classification, as was sought to be done by the learned Attorney-General. Take, for example, the deduction in clause (f) of section 23, viz.,—
“cost of works of benefit to the raiyats of the estate or tenure”.
The impugned Act does not contain any provision for spending any amount for the benefit of the raiyats, and it is difficult to avoid the inference, contended for by Mr. Das, that the deduction is an arbitrary one made solely for the purpose of artificially reducing the amount of compensation. There are some big estates in Bihar where a substantial part of the value or wealth of the estate lies in unworked mineral deposits or in forests consisting of standing timber from which there is very little present income. Two such estates are the estates of the Maharaja of Chota Nagpur and the Raja of Ramgarh. Affidavits have been filed on behalf of one of these estates to show the value of its unworked mineral deposits. It is well known that there are very few raiyats in forest lands or on lands under which there are mineral deposits; yet these proprietors will have to submit to a heavy deduction on account of the “cost of works of benefit to the raiyats”, though there may be fewer raiyats in their estates than in other estates of thickly populated areas. I agree that proprietors and tenure holders may be treated as a class, but within the class itself the impugned Act authorizes grossly unequal treatment. It is well settled that the principle of, classification must have some reference to the purpose or object of the legislation. The legislature has, indeed, a wide discretion in the matter of distinctions to be made, and the members of legislature know best the needs of the public for which the distinctions are to be made. But the legislature is not entitled to make a distinction or classification which is clearly unreasonable and arbitrary. The purpose or object of the slab systems, I take it, is to give some equivalent in money (be it adequate or inadequate) for the property which is being acquired; that equivalent, according to the object of the legislation, should bear some relation to the value of the property taken; but it is based on income artificially and arbitrarily arrived at, resulting in unequal treatment of persons standing in like conditions and circumstances except in the matter of largeness or smallness of their interest. One typical example of the inequality is in the deduction of income-tax. All through the impugned Act, the assumption is as if income-tax is a tax on property instead of being a tax on income. In section 25(2) the net income from royalties is to be calculated by deducting from gross-income income-tax paid thereon, though income-tax is paid on total income and not on income from a particular source only: the result of this provision will again be unequal treatment.
Therefore, it would be wrong to draw an analogy between the impugned Act and a tax law which imposes a tax on income on a progressive basis. Our attention has been drawn to some of the American decisions on inheritance tax law, in some of which a distinction was made between blood relations and strangers: Cornelius K.G Billings v. People of the State of Illinois; Jessie Norton Torrence Magoun v. Illinois Trust and Savings Bank. The distinction was upheld on the ground that the tax was not on money, but on the right to inherit, and might be graded according to the value of the inheritance or according to the relation of the person, who was, inheriting, to the deceased holder of the property. In effect, it was held that such tax was not property tax at all. There is one other decision which, I think, is important—Cumberland Coal Company v. Board of Revision of Tax Assessments in Greene County, Pennsylvania. The decision was given in seven cases which related to assessment for taxation of the coal lands in several townships. It appears that the commissioners assessed all coal in the same township at the same valuation, regardless of the remoteness or accessibility of the said coal to the market, cost of operation, means of transportation, etc.; it was held that a system was deliberately adopted which ignored differences in actual values so that property in the same class as that of the complaining, tax-payer was valued at the same, figure as the property of other owners which had an actual value admittedly higher. The decision in Carles U. Cotting and Francis Lee Higginson v. A.A Godard is important in the sense that it affirmed the principle earlier laid down that an arbitrary selection can never be justified by calling it classification. It was observed:
“But while recognising to the full extent the impossibility of an imposition of duties and Obligations mathematically equal upon all, and also recognizing the right of classification of industries and occupations, we must nevertheless always remember that the equal protection of the laws is guaranteed, and that such equal protection: is denied when upon one of two parties engaged in the same kind of business and under the same conditions burdens are cast which are not cast upon the other. There can be no pretence, that a stock-yard which receives 99 head of cattle per day a year is not doing precisely the same business as one receiving 101 head of cattle per day each year. It is the same business in all its essential elements, and the only difference is that one does more business than the other. But the receipt of an extra head of cattle per day does not change the character of the business. If once the door is opened to the affirmance of the proposition that a State may regulate one who does much business, while not regulating another who does the same but less business, then all significance in the guaranty of the equal protection of the laws is lost.”
These observations apply with equal force to the impugned Act.
Apart from the slab systems, there are other instances of unequal treatment in the impugned Act. A proprietor or tenure-holder whose estate consists mostly of undeveloped or unworked mines is treated differently from other proprietors or tenure-holders, because he gets no compensation whatsoever for unworked or undeveloped mines. There is similar inequality of treatment with regard to standing timber. Even in the matter of arrears of rent, the proprietors of larger estates and tenures are put in a different position from the proprietors or tenure-holders of smaller estates. In the same estate or tenure, one co-sharer may be put in a different position from another, at the unrestrained will of the executive. Section 10(2) authorises the State Government to terminate leases, apparently without payment of compensation, when the lessee has not done any prospecting or development work before the date of the commencement of the Act. This is clearly enough, an arbitrary distinction between one set of lessees and another, based on no reasonable classification. Even amongst secured creditors whose claims are to be paid out of compensation money, there is distinction: see clause (5) of section 24.
For all these various reasons, I hold that the impugned Act contravenes the provisions of Article 14 of the Constitution of India, and is accordingly void. In my opinion, the whole Act is void, because the provisions which contravene the fundamental right guaranteed under Article 14 cannot be extricated from other provisions of the impugned Act.
I now turn to clause (4) of Article 31 of the Constitution to consider the question whether that clause prevents us from calling the impugned Act in question. Clause (4) reads as follows:—
“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).”
It is not disputed that the Bihar Land Reforms Bill which ripened into the impugned Act was pending at the commencement of the Constitution in the legislature of Bihar. It is not also disputed that the Bill was reserved for the consideration of the President and received his assent. Mr. Das has urged two points firstly, he has emphasised the word law occurring in clause (4), and has contended that the impugned Act, not being valid law for one reason or another, does not come within the meaning of the expression law occurring in clause (4); secondly, he has contended that the only ground on which the impugned Act cannot be called in question under, clause (4) is that it contravenes the provisions of clause (2), According to him the assent of the President will not save the impugned Act if it contravenes some provisions other than those of clause (2) of Article 31. I do not think that his first-contention is correct. I have already stated that the word law has been used in different senses in the different clauses of Article 31, and the context makes that quite clear. The second contention of Mr. Das, however, appears to me to be correct. In express terms, clause (4) of Article 31 says that
“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)”.
If the intention were that the law so assented to shall not be called in question on any ground whatsoever, the Constituent Assembly could have easily said so. On the contrary, they seemed to have deliberately confined the clause to one and one ground only, viz., that the law contravenes the provisions of clause (2). The effect of the assent of the President, therefore, is nothing more than this that the impugned Act cannot be called in question on the ground that it contravenes clause (2) of Article 31; if, however, the impugned Act contravenes, as I have found that it does, the provisions of Article 14 of the Constitution, the assent of the President does not prohibit us from calling the impugned Act in question on that ground. It has been contended before us on behalf of the State of Bihar that the inequality if any, relates to the matter of compensation only, and if the Constituent Assembly intended to save the impugned Act from being called in question on the ground of inadequacy of compensation, it must follow, by necessary implication, that the Constituent Assembly intended to save the impugned Act from any inequality in the matter of compensation. In my view, which I have already explained, the inequality is not confined to the matter of compensation only. Even if I were to hold that the inequality relates only to the matter of compensation, I do not think that would prevent us from calling the impugned Act in question on the ground that it contravenes the fundamental right guaranteed by the provisions of Article 14. Clause (4) of Article 31 seeks to cut down a fundamental right and must, in my opinion, be construed strictly. The learned Advocate-General of Bihar, who followed the learned Attorney-General, for the State of Bihar, drew our attention to the words “notwithstanding anything in this Constitution” occurring in clause (4) of Article 31, but which did not occur in clause (6), and contended that those words enlarged the effect of the operative portion of the clause. He contended, that the meaning of those words was that notwithstanding the provisions of Article 14, the law assented to by the President could not be called in question. I am not prepared to accept this argument as correct. The words “notwithstanding, anything in this Constitution” cannot have the effect of enlarging the operative portion of the clause which, in clear terms, mentions one and one ground, only, namely, the ground arising out of the contravention of the provisions of clause (2) of Article 31.
The learned Advocate-General of Bihar also contended that, apart from clause (4) altogether, clause (2) of Article 31 read with entry 42 of List III showed that it was open to the legislature to specify whatever principles it chose to specify for determining the compensation the legislature has, in its wisdom, chosen to fix certain principles, and it is not open to the court to sit in judgment over the legislature. He states that in the matter of compensation, there is a difference between the American Constitution and the Indian Constitution; and except on the ground of fraud, it is not open to the Court to adjudicate on the reasonableness or otherwise of the principles specified for compensation. There is some difference in the wording of entry 42 of List III and that of clause (2) of Article 31, which is not material for the purpose of this argument. But I think that there are two good reasons why the contention of the learned Advocate-General of Bihar cannot be accepted. Firstly, the word ‘compensation’ has a legal significance which cannot be ignored. It is to be remembered that Article 31(2) is a guaranteed fundamental right for the enforcement of which a remedy is provided. It can hardly have been the intention of the Constituent Assembly that a fundamental right guaranteed by the Constitution shall not be justiciable. [For this part of the argument I am ignoring clause (4), which does make one ground of contravention non-justiciable.] Secondly, it is, no doubt, correct to say that the legislature can specify the principles on which compensation is to be given, but in specifying those principles, the legislature must obey the other provisions in Part III of the Constitution. It is not open to the legislature to say that I have been given the right to specify the principles, and therefore, it is open to me to fix principles in contravention of Article 14 of the Constitution. If that were the view to be accepted, then the fundamental rights guaranteed by the provisions in Part III of the Constitution would be utterly meaningless. As stated in Article 245 of the Constitution, which I have earlier quoted, the power to make laws by the legislature of a State is “subject to the provisions of this Constitution”. It is, I think, correct that clause (4) of Article 31 was enacted to save certain Bills relating to compulsory acquisition of property as part of a general scheme of land reform, from being later called in question on the ground of inadequacy of compensation. But I do not think that there was any intention to save such Bills from contraventions other than the particular contravention referred to in the operative portion of clause (4). In any view, the intention, as expressed in the words used in clause (4), is clear enough. It prevents the Court from calling in question the impugned Act on the ground that it contravenes the provisions of clause (2) of Article 31; it does not prevent the court from calling in question the impugned Act on any other ground.
Therefore, my view is that clause (4) of Article 31 does not save the impugned Act.
Delegated Legislation.—Mr. Das has raised the further contention that the impugned Act is bad by reason of a delegation of legislative power. He has referred particularly to section 32(2), and clause (p) of sub-section (2) of section 43 of the impugned Act. His contention may be briefly summarised thus: under entry 42 of List III the State Legislature can make a law with respect to, inter alia, “the form and the manner” in which compensation for property acquired for the purpose of a State is to be given; in the impugned Act, particularly in the sections referred to above, the State Legislature has not itself made a law with respect to “the form and the manner” in which compensation is to be given, but has left the law-making entirely, or in substance, to the State Government. It is contended that this is delegation of legislative power.
It must be made clear here that the argument of Mr. Das on this point has no reference to clause (2) of Article 31 which requires, inter alia, that the law must provide the manner in which compensation is to be given. It is one thing to say that the impugned Act contravenes clause (2) of Article 31; but it is quite a different thing to say that the impugned Act is bad by reason of a delegation of legislative power. Therefore, we have to consider this question of delegation of legislative power, irrespective of clause (2) of Article 31.
This question of delegated legislation is a question of some complexity, and not always easy to answer. I am constrained to admit that I have veered from one point of view to another on this question, and have made up mind after a good deal of hesitation. If I had felt that our decision in these cases was final, I would have been content to rest my decision on the other findings which I have given; but as our decision is subject to appeal, it is desirable that I should record my finding on this question as well.
For facility of understanding, I am placing below, side by side under two heads, what the legislature has itself determined and what it has left to the State Government in the matter of ‘the form and manner’ of the compensation to be given under the impugned Act:—
What the Legislature has itself determined.
What the Legislature has left to the Executive.
1. The amount of compensation shall be paid in one of, three alternative forms:
(a) in cash, or
(b) in bonds, or
(c) partly in cash and partly in bonds.
1. The State Government is to decide which of the three alternative forms to adopt, and if alternative (c) is adopted, to determine the proportion.
2. The bonds shall be either negotiable, or non-negotiable and non-transferable.
2. The State Government is to decide which of the two alternatives (as to the nature of the bonds) to adopt.
3. The bonds shall be payable in forty equal instalments.
3. The State Government is to fix the period of the instalments.
4. The bonds shall carry interest at 2½ per centum per annum.
4. The State Government is to determine at what periods the payment of interest will be made.
It would, I think, be wrong to say that the legislature has not, at all, applied its mind or has left the exercise of the legislative power entirely to the, executive. It has given the executive (meaning the State Government) a somewhat unusual and wide discretion; but wide though the discretion is, it still has limits which have been fixed by the legislature, and those limits cannot be transgressed by the State Government. In other words, the discretion or power given to the State Government is not an unlimited discretion or power. It may well be that the legislature thought fit to leave that discretion to the State Government, because the State Government would be in the best position to know in what shape and to what extent the financial resources of the State would be able to bear the burden of compensation, if and when it falls on the State Government to bear that burden.
This question of delegated legislation has been the subject of many judicial decisions, which were considered by a Special Bench of this Court in K.L Potdar v. D.P Kajriwal. I do not propose to refer to them all. I shall refer to only two decisions; one is the decision of the Supreme Court of India in the State of Bombay v. Narottamdas Jethabhai, in which their Lordships distinguished the earlier decision of the Federal Court in Jatindra Nath Gupta v. Province of Bihar, and re-affirmed the principles laid down, in Queen v. Burah. The other decision is the Australian case of Victorian Stevedoring and General Contracting Company Proprietary, Ltd. v. Dignan(5), which was relied on the Full, Bench decision referred to above. If I may say so with respect, a very lucid exposition of the doctrine of delegated legislation will be found in the judgment of Dixon, J., in the Australian case referred to above. Dixon, J., traced the origin of the doctrine from (a) the theory of separation of powers in a written constitution, and (b) the well-known maxim delegata potestas non potest delegare. I think that it is well-settled that the maxim referred to above has no application to sovereign legislative bodies under the Indian Constitution. The Privy Council has said in a number of cases that within the limits of their jurisdictions, the State (previously Provincial) legislatures have plenary power. This view was expressed in Burah's case as far back as 1878, and has now been re-affirmied by the Supreme Court of India. With regard to the doctrine of ‘the separation of powers’, it has always been a difficult task to make a distinction between a law requiring compliance with directions upon some specified subject which the administration thinks proper to give and a law investing the administration with authority to legislate upon the same subject. In Field v. Clarke Judge Ranney was quoted as stating the distinction thus:—
“The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.”
The matter has been out somewhat differently in English decisions where it has been held that “a general power of legislation belonging to a legislature constituted under a rigid constitution does not enable it by any form of enactment to create and arm with general legislative authority a new legislative power not created or authorised by the instrument by which it is established”. [see R.V Burah and In re Initiative and Referendum Act]. Perhaps, the truth of the matter is that the doctrine of the separation of powers and its logical consequences were not accepted in the British Colonial legislative theory and practice to the extent to which they were accepted in America, even though some of the colonies (or dominions) had written constitutions with a separation of powers. In the Australian decision referred to above. Dixon, J., said:
“I, therefore, retain the opinion which I expressed in the earlier case [Huddart Parkar, Ltd.] that Roche v. Kronheimer did decide that a statute conferring upon the executive a power to legislate upon some matters contained within one of the subjects of the legislative, power of the Parliament is a law with respect to that subject, and that the distribution of legislative, executive and judicial powers in the Constitution does not operate to restrain the power of the Parliament to make such a law. This does not mean that a law confining authority to the Executive will be valid, however extensive or vague the subject matter may be, if it does not fall outside the boundaries of Federal power. There may be such a width or such an uncertainty of the subject matter to be handed over that the enactment attempting it is not a law with respect to any particular head or heads of legislative power.”
Evatt, J., put the matter still more succinctly in the following observations:—
“On final analysis, therefore, the Parliament of the Commonwealth is not competent to ‘abdicate’ its powers of legislation. This is not because Parliament is bound to perform any or all of its legislative powers or functions, for it may elect not to do so; and not because the doctrine of separation of powers prevents Parliament from granting authority to other bodies to make laws or by-laws and thereby exercise legislative power, for it does so in almost every statute; but because each and every one of the laws passed by Parliament must answer the description of a law upon one or more of the subject matters stated in the Constitution. A law by which Parliament gave all its law-making authority to another body would, he had merely because it would fail to pass the test last mentioned.”
In the case of our Supreme Court referred to above [The State of Bombay v. Narottamdas Jethabhai] the broad question whether it is permissible for the Legislatures, Central or Provincial, while acting within their legislative fields, to delegate their legislative powers was raised but not decided. It is, therefore, still an open question if we can go as far as Dixon and Evatt, JJ., went in the Australian case. But it is clear that our Supreme Court reaffirmed, the principles of Burah's case. His Lordship Das, J., analysed the principles in Burah's case with reference to the various sections of Act XXII of 1869. Sections 1 and 8 came under one head; section 9 said:
“The said Lieutenant-Governor may from time to time, by notification in the Calcutta Gazette, extend mutatis mutandis all or any of the provisions contained in the other sections of this Act to the Jaintia Hills, the Naga Hills and to such portion of the Khasi Hills as for the time being forms part of British India.
Every such notification shall specify the boundaries of the territories to which it applies.”
Referring to this section, Lord Selborne observed:
“The Legislature decided that it was fit and proper that the adjoining district of the Khasi and Jaintia Hills should also be removed from the jurisdiction of the existing Courts, and brought under the same provisions with the Garo Hills, not necessarily and at all events, but if and when the Lieutenant-Governor should think it desirable to do so; and that it was also possible that it might be expedient that not all, but some only, of those provisions should be applied to that adjoining district. And accordingly the Legislature entrusted, for these purposes also, a discretionary power to the Lieutenant-Governor.”
If it was open to the Legislature to entrust a discretionary power to the Lieutenant-Governor in such wide terms as to extend mutatis mutandis all or any of the provisions contained in other sections of the Act to certain areas, I do not see why such discretionary power as has been left by the impugned. Act to the State Government, should be held bad on the ground of delegated legislation. Other instances of a still wider discretion left to the executive, can, be given, but I do not think it necessary to multiply instances [see Powell v. Apollo Candle Co., Ltd. and Hodge v. Queen].
Applying the principles laid down in these decisions, I would hold that the impugned Act, though it leaves a fairly wide discretionary power to the, State Government in the matter of the form and manner of compensation, settles the legislative policy, lays down the limits of the discretion but confides to the State Government certain powers to carry out the details of the objects of the enactment: therefore, it is not invalid on the ground of delegated legislation.
I must, however, express my feeling that if the principle of doctrine of separation of powers as explained and accepted in some of the American decisions were to be applied with all its logical rigour to the Legislatures under the Indian Constitution, it would be difficult to uphold the impugned legislation or other legislation of a similar nature.
Mr. Das has commented that some, of the provisions are so drafted that they are unworkable, and has particularly referred to sub-section (2) of section 32 which does not fix the intervals at which the forty equal instalments become payable. It appears that the matter has been left to the rule-making power of the State Government—the validity of which has already been discussed on the question of delegated legislation. There are probably other drafting defects; but the question which we are now considering is whether the impugned Act is unconstitutional, and the criticism that a particular provision may be unworkable has no direct bearing on the constitutionality of the enactment.
Fraud on the Constitution.—Lastly, it was contended that the impugned Act, and the assent of the President were a fraud on the Constitution. This point has been effectively dealt with by my learned brother Reuben, J., and I have nothing further to add.
Conclusion.—For the reasons given above, I have arrived at the same conclusion as my learned brethren that the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950) is unconstitutional, though not for identical reasons. I have attempted to set out above the reasons which have led me to the conclusion at which I have arrived, and also answered the issues raised in these cases.
Accordingly, I agree to the orders proposed by my learned brother Shearer, J.
Suits decreed.
Rules made absolute.
G.N.P
sub-section (2) of section 299