Appeal No 1222 of 1966
Appeal from the judgment and order dated March 14 1966 Appeal of the Punjab High Court Circuit Bench at Delhi in Civil Writ No 832 D of 1965
section V Gupte Solicitor General N section Bindra R H Dhebar and B R G K Achar for the appellant
M C Setalvad B C Dutt Santosh Chatterjee B Partha sarathy 0
C Mathur and Ravinder Narain for respondent No 1
B C Dutt Santosh Chatterjee Anand Prakash 0
C Mathur and Ravinder Narain for respondent No 2
The Judgment of the Court was delivered by Subba Rao C J
This appeal by certificate raises the question of the constitutional validity of the Metal Corporation of India Acquisition of Undertaking Act No XLIV of 1965 hereinafter called the Act
The relevant facts lie in a small compass
The 1st respondent The Metal Corporation of India Limited hereinafter called the Corporation was a limited company constituted under the Indian Companies Act having for its objects inter alia the development of zinc and lead mines at Zawar in the State of Rajasthan and the construction of a zinc smelter and other connected works for producing electrolytic zinc and by products
The Government was satisfied that it was necessary to acquire the said Corporation in public interest and on October 22 1965 the President of India 257 promulgated an Ordinance No 6 of 1965 providing for the acquisition of the Corporation by the Central Government
Pursuant to the said Ordinance on or about October 23 1965 the Central Government took over the possession control and administration of the said Corporation
The Corporation the 1st respondent and its Managing Director the 2nd respondent filed a Writ Petition under article 226 of the Constitution in the High Court of Judicature for the State of Punjab Circuit Bench at New Delhi being Petition No 631 D of 1965 challenging the validity of the said Ordinance
In the meantime the Parliament passed the Act on the same terms as contained in Ordinance No 6 of 1965 it received the assent of the President of India on December 12 1965
The respondent filed another writ petition in the said High Court being Writ Petition No 832 D of 1965 for a declaration that the Act was ultra vires the Constitution
The said High Court held that the Ordinance and the Act contravened the relevant provisions of article 31 of the Constitution and therefore were constitutionally void
The present appeal is preferred against the said judgment of the High Court
It will be convenient at this stage to read the relevant provisions of the Act
The preamble and the relevant provisions of the Act read Preamble
An Act to provide for the acquisition of the undertaking of the Metal Corporation of India Limited for the purpose of enabling the Central Government in the public interest to exploit to the fullest extent possible zinc and lead deposits in and around the Zawar area in the State of Rajasthan and to utilise those minerals in such manner as to subserve the common good Section 3
On the commencement of this Act the undertaking of the company shall by virtue of this Act be transferred to and vest in the Central Government
Section 10
1 The Central Government shall pay compensation to the company for the acquisition of the undertaking of the company and such compensation shall be determined in accordance with the principles specified in the Schedule and in the manner hereinafter set out that is to say 2 Notwithstanding that separate valuations are calculated under the principles specified in the Schedule in respect of the several matters referred to therein the 258 amount of compensation to be given shall be deemed to be a single compensation to be given for the undertaking as a whole
3 THE SCHEDULE Principles for determining compensation for acquisition of the undertaking
Paragraph I The compensation to be paid by the Central Government to the company in respect of the acquisition of the undertaking thereof shall be an amount equal to the sum total of the value of the properties and assets of the company on the date of commencement of this Act calculated in accordance with the provisions of paragraph II less the sum total of the liabilities and obligations of the company as on the said date calculated in accordance with the provisions of paragraph 111
Paragraph II a The market value of any land or buildings b the actual cost incurred by the company in acquiring any plant machinery or other equipment which has not been worked or used and is in good condition and the written down value determined in accordance with the provisions of the Income tax Act 1961 XLIII of 1961 of any other plant machinery or equipment c the market value of any shares securities or other investments held by the company d the total amount of the premium paid by the company in respect of all leasehold properties reduced in the case of each such premium by an amount which bears to such premium the same proportion as the expired term of the lease in respect of which such premium shall have been paid bears to the total term of the lease e the amount of debts due to the company whether secured or unsecured to the extent to which they are reasonably considered to be recoverable
f the amount of cash held by the company whether in deposit with a bank or otherwise g the value of all tangible assets and properties other than those failing within any of the preceding clauses
Paragraph III
The total amount of liabilities and obligations incurred by the company in connection with 259 the formation management and administration of the undertaking and subsisting immediately before the commencement of this Act
 The gist of the said provisions may be given thus
The Act was made to acquire in public interest the undertaking of the Corporation On the commencement of the Act the undertaking was transferred and vested in the Central Government
Under section 10 of the Act the Government shall pay compensation to the undertaking as a whole but in the absence of an agreement between the Government and the Corporation the compensation payable to the Corporation has to be ascertained under the principles specified in the Schedule in respect of the several matters referred to therein
Paragraph 1 of the Schedule lays down the manner in which the compensation to be paid to the Corporation for the acquisition of the undertaking is to be ascertained
The said compensation shall be an amount equal to the sum total of the value of the properties and assets of the Corporation on the date of the commencement of the Act calculated in accordance with the provisions of paragraph It less the liabilities on the said date calculated in accordance with the provisions of paragraph III of the Schedule
Broadly the said paragraph lays down the principles for ascertaining the value of lands buildings machinery and equipment amounts due to the undertaking and other tangible assets and properties
The different clauses of the paragraph adopt different principles for valuation
But what is important for the present purpose is the principle embodied in cl
b of para II
It is in two parts the first provides for the valuation of plant machinery or other equipment which has not been worked or used and is in good condition and the second provides for the valuation of any other plant machinery or equipment
The former has to be valued at the actual cost incurred by the Corporation in acquiring the same and the latter at the writtendown value determined in accordance with the provisions of the Indian Income tax Act 1961
The High Court held on a construction of the said provisions that the principle contained in cl
b of paragraph 11 of the Schedule to the Act in respect of machinery etc cannot be called relevant to the determination of just equivalent  as it takes no notice of the notorious fact that prices have been steadily rising during the past several years particularly of imported machinery and plant
It also held that depreciation rule does not even pretend to determine the actual depreciation in a particular case and it is obvious that such depreciation has no real relationship with the actual value of any machinery at any particular point of time
On that reasoning it came to the conclusion having regard to the decision of this Court in Vajravelu vs Special Deputy Collector1 that the said provision in respect of machinery did
1  260 not lay down a principle for fixing compensation i e a just equivalent to the machinery acquired
The reasoning of the High Court was attacked by the learned Additional Solicitor General on the ground that it did not appreciate the true scope of the said decision of this Court and that in any view it went wrong in applying the principle of the said decision to the provisions of the Act
He contended that the Act laid down the broad principle that compensation shall be paid for the entire undertaking as a unit but provided different modes for the ascertainment of the value of different parts thereof in such a way that the deficiency in the valuation of one part was offset by the liberal valuation of the other part
In that view he contended the Act embodied a principle relevant to the ascertainment of compensation for the undertaking acquired and therefore the product worked out under the said principle pertained only to the realm of adequacy which was beyond the ken of judicial review
He added that compensation in article 31 of the Constitution meant that cornpensation which was regarded as just in the context of public acquisitions and that test was satisfied in the present case
Mr M C Setalvad learned counsel for the respondents contended that though under the Act compensation was to be given to the undertaking as one unit the Act laid down principles for arriving at the valuation of the parts to arrive at the valuation of the whole and that therefore every such principle should stand the test laid down by this Court
So judged the argument proceeded both the principles laid down in cl
b of para 11 of the Schedule had no nexus to the ascertainment of compensation for the machinery acquired for in the case of unused machinery its cost price was the guide and in the case of used machinery its written down value was the criterion and that both the methods were arbitrary
We find it difficult to appreciate the arguments of the learned Solicitor General
It is true that under section 10 of the Act the Central Government shall pay compensation for the acquisition of the undertaking to the Corporation and the said compensation arrived at in the manner prescribed in the Schedule to the Act shall be deemed to be a single compensation to be given to the undertaking as a whole
But it will be noticed that though a single compensation for the undertaking is given the said compensation shall be deter mined in accordance with the principles specified in the Schedule
Under the Schedule the compensation for the entire undertaking shall be the amount equal to the sum total of the value of the properties and assets of the Corporation calculated in accordance with the provisions of para II of the Schedule
Under the said para 11 different principles are laid down for ascertaining the value of different parts of the undertaking
If all the said principles laid down in para 11 of the Schedule do not provide for the just equivalent 261 of all the parts of the undertaking mentioned therein the sum total also cannot obviously be a just equivalent of the undertaking
So too if some of them do not provide for a just equivalent and others do so the sum total cannot equally be a just equivalent to the undertaking
In the case of the undertaking in question the machinery is the most valuable part of the undertaking
Apropos the unused machinery in good condition how can the price for which the said machinery was purchased years ago possibly represent its price at the time of its acquisition A simple illustration will disclose the irrelevance of the principle
Suppose in 1950 a machinery was purchased for Rs 100 and for some reasons the same has not been used in the working of the undertaking but has been maintained in good condition
That machinery has not become obsolescent and still can be used effectively
If purchased in open market it will cost the owner Rs 1000
A compensation of Rs 100 for that machinery cannot be said to be a just equivalent of it
It is common knowledge that there has been an upward spiral in prices of the machinery in recent years
The cost price of a machinery purchased about ten years ago is a consideration not relevant for fixing compensation for its acquisition in 1965
The principle must be such as to enable the ascertainment of its price at or about the time of its acquisition
Nor the doctrine of written down value accepted in the Income tax law can afford any guide for ascertaining the compensation for the used machinery acquired under the Act
Under the general scheme of the Income tax Act the income is to be charged regardless of the diminution in the value of the capital
But the rigor of this hard principle is mitigated by the Act granting allowances in respect of depreciation in the value of certain assets such as machinery buildings plant furniture etc
These allowances are worked out on a notional basis for giving relief to the income tax assessee
This artificial rule of depreciation evolved for income tax purposes has no relation to the value of the said assets
To illustrate a machinery was purchased in the year 1950 for Rs 1000
The aggregate of all the depreciation allowances made year after year for ten years may exhaust the sum of Rs 1000 with the result after the tenth year the assessee will not be entitled to any depreciation
From this it cannot be said that after the tenth year the machinery has no value
Indeed a machinery purchased for Rs 1000 in 1950 because of subsequent rise in
prices may be sold in 1965 for Rs 10000
But the application of the principle laid down in cl
b of para 11 of the Schedule to the Act in regard to used machinery gives the owner no compensation at all
Yet the Government takes the machinery worth Rs 10000 gratis
This illustration exposes the extreme arbitrariness of the principle
It is therefore manifest that the two principles of valuation embodied in cl
b of para II of the Schedule to the Act are not relevant to the fixing of compensation for the machinery at
the time of its acquisition under the Act
The argument of the 262 learned Additional Solicitor General that the working out of all the principles in respect of different parts of the undertaking would result in a product which would fairly represent in the context of public acquisitions the just equivalent to the undertaking acquired is purely based on a surmise for it is not shown that the working out of any one or more of the principles would give a higher compensation to some parts of the undertaking so that the excess paid under one head would offset the deficiency under another head
Nor can the doctrine of inherent worth of a machinery has any relevance in the matter of giving compensation for its acquisition at a particular point of time for the simple reason that the worth of an article depends upon the market conditions obtaining at the time of its acquisition
It is impossible to predicate irrespective of such conditions that a particular machinery has a fixed value
for all times
Four decisions of this Court laid down the principles applicable to the present case
Indeed but for the said decisions we would have posted this case before a Constitution Bench of five Judges
But as this appeal involves only the application of the construction put upon article 31 of the Constitution by this Court in the said decisions we did not resort to that course
The first of them is The State of West Bengal vs Mrs Bela Banerjee 1
There the validity of the West Bengal Land Development and Planning Act 1948 was under scrutiny
Section 8 thereof provided that compensation to be awarded for compulsory acquisition to owners of land was not to exceed the market value as on December 31 1946
This Court held that the said Act was ultra vires the Constitution and void under article 322 thereof
In that context Patanjali Sastri CJ observed Turning now to the provisions relating to compensation under the impugned Act it will be seen that the latter part of the proviso to section 8 limits the amount of compensation so as not to exceed the market value of the land on December 31 1946 no matter when the land is acquired
Considering that the impugned Act is a permanent enactment and lands may be acquired under it many years after it came into force the fixing of the market value on December 31 1946 as the ceiling on compensation without reference
to the value of the land at the time of the acquisition is arbitrary and cannot be regarded as due compliance in letter and spirit with the requirement of article 312
 The above decision was followed by this Court in State of Madras vs D Namasivaya Mudaliar2
There the respondents were owners of certain lands which were to be compulsorily acquired under 1   564
2   945 2 63 Madras Lignite Acquisition of Land Act 1953
The Act came into force on August 20 1953 before article 31 of the Constitution was amended by the Constitution Fourth Amendment Act 1955
By the said Act compensation for the acquisition of lignite bearing bands under the Land Acquisition Act was to be assessed on the market value of the land prevailing on August 28 1947 and not on he date on which the notification was issued under section 41 of the and Acquisition Act
It also provided that in awarding compensation the value of non agricultural improvements commenced since April 28 1947 would not be taken into consideration
This Court held that the said Act was bad because it contravened article 312 of the Constitution as it stood before the Constitution Fourth Amendment Act 1955
This Court speaking through Shah J observed Assuming that in appropriate cases fixation of a date anterior to the publication of the notification under section 41 for ascertainment of market value of the land to be acquired may not always be regarded as a violation of the constitutional guarantee in the absence of evidence that compensation assessed on the basis of market value on such anterior date awards to the expropriated owner a just monetary value of his property at the date on which his interest is extinguished the provisions of the Act arbitrarily fixing compensation based on the market value at a date many years before the notification under section 41 was issued cannot be regarded as valid Then the learned Judge proceeded to state To deny to the owner of the land compensation at rates which justly indemnify him for his loss by awarding him compensation at rates prevailing ten years before the date on which the notification under section 41 was issued amounts in the circumstances to a flagrant infringement of the fundamental right of the owner of the land under article 312 as it stood when the Act was enacted
 These two decisions turned upon the construction of article 312 of the Constitution before the Constitution Fourth Amendment Act 1955
These cases laid down two propositions 1 Compensation under article 312 of the Constitution means a just equivalent of what the owner has been deprived of  and 2 the value of land at an anterior date is presumed to be no compensation within the meaning of the said Article
After the Constitution Fourth Amendment Act 1955 this Court had to construe in two decisions he amended provision of article 312 vis a vis the expression compensation found therein
The first decision is that in Vajravelu 264 vs Special Deputy Collector1
There this Court observed at p 625 626 A scrutiny of the amended Article discloses that it accepted the meaning of the expressions compensation and principles as defined by this Court in Mrs Bela Banerjee s case2 lm0
And it held that if the compensation is illusory or if the principles prescribed are irrelevant to the value of the property at or about the time of its acquisition it can be said that the Legislature committed a fraud on power and therefore the law is bad
One of the illustrations given at p 627 is relevant to the present enquiry and that is as follows  if a law lays down principles which are not relevant  to the property acquired or to the value of the property at or about the time it is acquired it may be said that they are not principles contemplated by article 312 of the Constitution
If a law says  that though it house is acquired in 1960 its value in 1930 should be given  the principles do not pertain to the domain of adequacy but are principles unconnected to the value of the property acquired
 Applying these principles this Court in Jeejeebhoy vs Assistant Collector3 held that the fixation of an anterior date for the ascertainment of the value of the property acquired without reference to any relevant considerations which necessitated the fixing of an earlier date for the purpose of ascertaining the real value is arbitrary
On that ground this Court held that the Land Acquisition Bombay Amendment Act 1948 did not provide for payment of just equivalent of what the owner was deprived of as it provided for the ascertainment of compensation on the basis of the value of lands acquired as on January 1 1948 and not as on the date on which the section 4 notification under the 1894 Act was issued
The relevant aspect of the legal position evolved by the said decisions may be stated thus Under article 312 of the Constitution no property shall be compulsorily acquired except under a law which provides for compensation for the property acquired and either fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be determined and given
The second limb of the provision says that no such law shall be called in question in any court on the ground that the compensation provided by the law is not adequate
If the two concepts namely compensation and the jurisdiction of the court are kept apart the meaning of the provisions is clear
The law to 11965 1 SCR 614
2  3 6 265 justify itself has to provide for the payment of a just equivalent to the land acquired or lay down principles which will lead to that result
If the principles laid down are relevant to the fixation of compensation and are not arbitrary the adequacy of the resultant product cannot be questioned in a court of law
The validity of the principles judged by the above tests falls within judicial scrutiny and if they stand the tests the adequacy of the product falls outside its jurisdiction
Judged by the said tests it is manifest that the two principles laid down in cl
b of Para 11 of the Schedule to the Act namely i compensation equated to the cost price in the case of unused machinery in good condition and ii written down value as understood in the Income tax law as the value of used machinery are irrelevant to the fixation of the value of the said machinery as on the date of acquisition
It follows that the impugned Act has not provided for compensation within the meaning of article 312 of the Constitution and therefore it is void
The mere fact that in regard to some parts of the undertakings the principles provide for compensation does not affect the real question for machinery is the major part of the undertaking and as the entire undertaking is acquired as a unit the constitutional invalidity of cl
b of Para 11 of the Schedule to the Act affects the totality of the compensation payable to the entire undertaking
In the context of compensation for the entire undertaking the clauses of Para 11 of the Schedule to the Act are not severable
In the result the Act not having provided for compensation is unconstitutional and the conclusion arrived at by the High Court is correct
appeal fails and is dismissed with costs
VPS Appeal dismissed


Summary:
The Metal Corporation of India Acquisition of Undertaking Act 1965 was enacted for acquiring in the public interest the undertaking of the Metal Corporation of India
The Act provided that the Corp oration was to vest in the Central Government on the commencement of the Act and that in the absence of an agreement between the Government and the Corporation the compensation payable to the Corporation was to be an amount equal to the sum total of the value of the properties and assets of the Corporation on the date of the commencement of the Act calculated in accordance with the provisions of Paragraph 11 of the Schedule to the Act less the liabilities on the said date calculated in accordance with the provisions of Paragraph III of the Schedule
One of the clauses laying down principles of compensation viz clause b of para 11 is in two parts
The first part provides for the valuation of plant machinery or other equipment which has not been worked or used and is in good condition and the second part provides for the valuation of any other plant machinery or equipment
The former have to be valued at the actual curt incurred by the Corporation in acquiring them and the latter at the writtendown value determined in accordance with the provisions of the Income of the constitutional validity of the Act
HELD  The Act contravened article 312 of the Constitution and was therefore void
265 C Under article 312 no property shaft be compulsorily acquired except under a law which provides for compensation and either fixes the amount of compensation or specifies the principles on which and the manner in which the compensation is to be determined and given
If the compensation is illusory or if the principles prescribed are irrelevant to the value of the property at or about the time of its acquisition the law is bad
The law to justify itself has to provide for the payment of a just equivalent to the property acquired or lay down principles which are not arbitrary but which are relevant to the fixation of compensation
It is only when the principles stand this test that the adequacy of the resultant compensation falls outside judicial scrutiny under the second limb of article 312
In the instant case the two principles laid down in cl
b of Para 11 of the Schedule are irrelevant to the fixation of the value of the machinery as on the date of acquisition
In the case of unused machinery if it was Purchased in 1950 for Rs 100 and for some reason had not been used in the working of the Undertaking but had been maintained in good condition it may cost Rs 1000 in 1965
A compensation of Rs 100 for that machinery could not be said to be a just equivalent of it
Similarly in the case of used machinery if it was purchased in 1950 for Rs 1000 256 the aggregate of all the depreciation allowances made year after year may exhaust the sum of Rs 1000 in ten years with the result that under the Income tax Act the assessee will not be entitled to any depreciation after the tenth year
It could not however be said that after the tenth year the machinery had no value and that the owner was not to be given any compensation
Indeed such a machinery because of subsequent rise in prices may be sold in 1965 for Rs 10000
Further the constitutional invalidity of cl
b of Para II of the Schedule affect the totality of the compensation payable for machinery is the major part of the undertaking the entire Undertaking is acquired as a unit and in the context of compensation for the entire Undertaking the clauses of Para H of the Schedule to the Act are not severable
Therefore the mere fact that in regard to some parts of the Undertaking the principles laid down in Para H provide for compensation does no affect the question especially when it has not been shown that the working out of any one or more of the principles would give a higher compensation to some parts of the Undertaking so that the excess paid under one head would offset the deficiency under another head
261 F H 262 B 264 B C F H 265 A El Vajravelu vs Special Deputy Collector  and Jeejeebhoy vs Assistant Collector   followed