ivil Appeal No 107 of 1952
Appeal from the Judgment and Order dated 22nd March 1951 of the High Court of Judicature at Calcutta Harries CJ and Banerjee J in Reference No 4 of 1950 in Civil
Rule No 1643 Of 1950
MC Setalvad Attorney General for India  B Sen with him for the appellant
Atul Chandra Gupta Jay Gopd Ghose with him for respondent NO 1 1953
December 17
The following Judgments were delivered
PATANJALI SASTRI CJ
This appeal raises issues great public and private importance regarding the extent of protection
which the 
Constitution of India accords to ownerships of private property
The first respondent herein hereinafter referred to as the respondent purchased the entire Touzi No 341 of the 24 Parganas Collectorate at a revenue sale held on January 9 1942
As such purchaser the respondent acquired under section 37 of the Bengal Revenue Sales Act 1859 Central Act No 11 of 1859 the right to avoid and annul all under tenures and forthwith to eject all under tenants with certain exceptions which are not material here
In exercise of that right the respondent gave notices of ejectment and brought a suit in 1946 to evict certain under tenants including the second respondent herein and to recover possession 594 of
the lands
The suit was
decreed against the second respondent who preferred an appeal to the District Judge 24 Parganas Contending that his undertenure came within one of the exceptions referred to in section 37
When the appeal was pending the Bill which was later passed as the West Bengal Revenue Sales West 
Bengal Amendment Act 1950 hereinafter referred to asthe amending Act was introduced in the West Bengal Legislative Assembly on March 23 1950
It would appear according to the statement 0f objects and reasons annexed to the Bill that great hardship was being caused to a large section of the people by the application of section 37 of the Bengal Land Revenue Sales Act 1859 in the urban areas and particularly in Calcutta and its suburbs where the present phenomenal increase in land values has supplied the necessary incentive to speculative purchasers in exploiting this provision section 37 of the law for unwarranted large scale eviction and it wastherefore
considered necessary to enlarge the scope of protection already given by the section to certain categories of tenants with due safeguards for the security Of Government revenue
The Bill was eventually passed as the amending Act and it came into force on
March 15 1950
It substituted by section 4 the new section 37 in the place of the original section 37 and  it provided by section 7 that all pending suits appeals and other proceedings which had not already resulted in delivery of possession shall  abate
 Thereupon the respondent contending that section 7 was void as abriging his fundamental fights under article 191 f and article 31 moved the High Court under article 228 to withdraw the pending appeal and determine the constitutional issue  raised by him
The appeal accordingly
withdrawn and the case was heard by Trevor Harries CJ and Banerjee J who by separate but concurring judgments declared section 7 unconstitutional and void and
returned the case to the District Court for disposal in conformity 595 with their decision
The learned Judges held that the respondent s right to annul under tenures and evict under tenants being a vested right acquired by him under his purchase before section 37 was amended the retrospective deprivation of that right by section 7 of the amending Act without any abatement of the price paid by the respondent at the revenue sale was an infringement of his fundamental right under article 191 f to hold property with all the rights 
acquired under his purchase and as such deprivation was not a reasonable restriction on the respondent s exercise of his vested right section 7 was not saved by clause 5 of that article and was void
On behalf of the appellant State the learned Attorney General contended before uS that if as the respondent claims his right to annul under tenures and
evict under tenants in occupation other than those protected under the original enactment was property  within the meaning of clause 1 Of article 19 then it was also property within the meaning of clause 1 of article 31 as the expression must have the same connotation in both the provisions and the respondent  having been deprived of it under the authority of law namely section 7 of the amending Act such deprivation was lawful and could not be challenged
In support of this contention learned counsel strongly relied on the observations of my learned brother Das in Chiranjit Lal Choudhury s case1  and  also on the analogy of the reasoning of the majority in Gopalan s casez
Alternatively it was urged that if the correct view was that the nullification of the respondent s right was only the imposition of a restriction on the enjoyment of the property purchased by him as has been held by the learned Judges
below then it was a reasonable restriction imposed in the  interests of the general public under clause 5of article 19 having regard to the facts and circumstances which led to the enactment of the measure as 
disclosed in the Statement of Objects and 1   2 1954 Reasons annexed to the Bill which for this purpose is admissible
It will be convenient to deal first with the latter contention of the Attorney General
Sub clause f 0f clause 1 of article 19 has in my opinion no application to the case
That article enumerates certain freedoms under the caption right to freedom and deals with those great and basic rights which are recognised and guaranteed as the natural rights inherent in the status of a citizen of a free country
The freedoms declared in sub clauses a to e and g are clearly of that description and in such context sub clause f should I think also be understood as declaring the freedom appertaining to the citizen of free India in the matter of acquisition possession and disposal of private property
In other words it declares the citizen s right to own property and has no reference to the right to the property owned by him which is dealt with in article 31
Referring to the privileges and immunities mentioned in article 4 and Amendment 14 of the American Federal Constitution Bradley J said in Butchers Union etc
Co vs Crescent City etc
Co1 The phrase has a broader meaning
It includes those fundamental privileges and immunities which belong essentially to the citizens of every free government among which Washington J enumerates the  right of protection the right to pursue and obtain happiness and safety the right to pass through and reside in any State for the purposes of trade agriculture professional pursuits or otherwise to claim the benefit of the wnt of habeas corpus to institute and maintain actions of any kind in the courts of the State and to take hold and dispose of property either real or personal
Corfield vs Coryell These rights are different from the concrete fights which a man may have to a specific chattel or a piece of land or to the performance by another of a particular contract or to damages of a particular wrong all which may be invaded by individuals they are the capacity power or privilege of having and enjoying 1 111 U 8
597 those concrete rights and of maintaining them in the courts which capacity power or privilege can only be invaded by the State
These primordial and fundamental rights are the privileges and immunities citizens which are referred to in the 4th article of the Constitution and in the 14th Amendment to it Italics mine
We are not here concerned with the meaning and content of the phraseprivileges and immunities in the context of thoseprovisions which according to some of the Judgeshave a reference only to those privileges and immunities which owe their existence to the Federal Constitution or its laws
What is of importance for the present purpose is that the two learned Judges thought that the right to take hold and dispose of property was one of those primordial and fundamental rights of the same class as the right to pursue happiness and safety and other such basic freedoms appertaining to free citizens and was different from the concrete rights which a person may have to a specific res or thing owned being the capacity power or privilege of having and enjoying those concrete rights
Sub clause f of clause 1 of article 19 seems analogous to clause 1 of article 17 of the United Nations Declaration of Human Rights Everyone has the right to own property alone as well as in association with others and article 31 to clause 2 of article 17 No one shall be arbitrarily deprived of his property
 I have no doubt that the framers of our Constitution drew the same distinction and classed the natural right or capacity of a citizen to acquire hold and dispose of property with other natural rights and freedoms inherent in the status of a free citizen and embodied them in article 191 while they provided for the protection of concrete rights of property owned by a person in article 31
The meaning of the phraseto acquire hold and dispose of property as well as the nature of the subject matter to which it has reference in the sense indicated above is also clear from the terms of sections 111 and 298 of the Government of India Act 1935 where the same phrase is used 598 in prohibiting imposition of disability on grounds of religion place of birth descent colour or any of them on a British subject domiciled in the United Kingdom and on an indian subject of His Majesty determined in the case of citizens and non citizens not deal with expropriation of specific property belonging to such persons which is dealt with in section 299
There are difficulties in the way of accepting the view of the learned Judges below that article 19 1 f and 19 5 deal with the concrete rights of property and the restraint to which they are liable to be subjected
In the first place it will be noticed that sub clause f of clause 1 of article 19 deals only with the rights of citizens whereas article 31 deals with the rights of persons in general
If article 31 which is headed by the caption right to property was designed to protect property rights of citizens as well as non citizens why was it considered necessary to provide for the protection of those rights in sub clause f of clause 1 of article 19 also  I do not think that our Constitution makers could have intended to provide a double barrelled constitutional protection to private property
Moreover right to acquire and dispose of property could only refer to the capacity of a citizen
The word hold which is inserted between those two words must in my opinion be understood to mean own and not as having reference to something different viz rights to specific things owned by a citizen  I see no force in the objection that unless sub clause f of clause 1 of article 19 read with clause 5 is construed as relating to concrete property rights also the legislature would have the power to impose even unreasonable restrictions on the enjoyment of private property by citizens
It is difficult to believe that the framers of our Constitution could have intended to differentiate between citizens and non citizens in regard to imposition of restrictions on enjoyment of private property
Such restrictions are imposed in exercise of the power inherent in the State to regulate private rights of property when they 599 are sought to be exercised to the injury of others having similar rights and the measure of restriction imposed
in exercise of such regulative power must be determined in the case of citizens and non citizens alike by the necessity of protecting the community
On the other hand differential treatment of citizens and non citizens would be perfectly intelligible if subclause f of clause 1 of article 19 and clause 5 are understood as dealing only with the freedom or capacity to acquire hold and dispose of property in general for it would be justifiable to exclude aliens from such freedom as has been done in several countries for the benefit of their own nationals particularly in respect of land
Moreover both by the preamble and the directive principles of State policy in Part IV our Constitution has set the goal of a social welfare State and this must involve the exercise of a large measure of social control and regulation of the enjoyment of private property
If concrete rights of property are brought within the purview of article 191f the judicial review under clause 5as to the reasonableness of such control and regulation might have an unduly hampering effect on legislation m that behalf and the makers of our Constitution may well have intended to leave the Legislatures free to exercise such control and regulation in relation to the enjoyment of rights of property providing only that if such regulation reaches the point of deprivation of property the owner should be indemnified under clause 2 of article 31 subject to the exceptions specified in para
ii of sub clause b of clause 5 of article 31 Nor am I much impressed with the suggestion that the reference to exercise in clause 5 of article 19 of the rights conferred by sub clause f of clause 1 indicates that  the  latter rights must be fights of property
Clause 5 could as well contemplate restrictions on the excercise of a citizen s freedom to acquire hold and dispose of property as for instance banning acquisition of land in a givien locality say a tribal area or putting a ceiling on the quantum of land that a citizen can hold or restricting alienation of land to specified classes of persons only of
Punjab Province vs 600 Daulat Singh and Other 1 and the reasonableness of such restrictions being brought under judicial review
For all these reasons I am of opinion that under the scheme of the Constitution all those broad and basic freedoms inherent in the status of a citizen as a free man are embodied and protected from invasion by the State under clause 1of article 19 the powers of State regulation of those freedoms in public interest being defined in relation to each of those freedoms by clauses 2 to 6 of that article while rights of private property are separately dealt with and their protection provided for in article 31 the cases where social control and regulation could extend to the deprivation of such rights being indicated in para
iiof subclause b of clause 5 of article 31 and exempted from liability to pay compensation under clause 2
On this view no question of correlating article 19 1 f with article 31 could arise and the analogy of Gopalan s case has no application
On this view the question whether section 7 03 the amending Act is a reasonable restriction on the exercise of the res pondent s right to the property purchased by him could not also arise as  clause 5 of article 19 could then have reference only to disabilities of the kind already mentioned
Turning next to the  contention based on article 31 1 it Was put thus in the language of Das J in Chiranjit Lal Choudhury s case  which the learned Attorney General fully adopted Article 311 formulates the fundamental right in negative form prohibiting the deprivation of property except by authority of law
It implies that a person may be deprived of his property by authority of law
Article 312 prohibits the acquisition or taking possession of property for a public purpose under any law unless such law provides for payment of compensation
It is suggested that clauses 1 and 2 0f article 31 deal with the same topic namely compulsory acquisition or taking possession 0f property clause 2 being only an elaboration of clause 1
There appear 1 1946 FC R 1 CP C
2   924  601 to me to be two objections to this suggestion
If that were the correct view then clause 1 must be held to be wholly redundant and clause 2 by itself would have been sufficient
In the next place such a view would exclude deprivation of property otherwise than by acquisition or taking of possession
One can conceive of circumstances where the State may have to deprive a person of his property without acquiring or taking possession of the same
For example in any emergency in order to prevent a fire spreading the authorities may have to demolish an intervening building
This deprivation of property is supported in the United States of America as an exercise of police power
This deprivation of property is different from acquisition or taking of possession of property which goes by the name of eminent domain m the American law
The construction suggested implies that our Constitution has dealt with only the law of eminent domain but has not provided for deprivation of property in exercise of police powers
I am not prepared to adopt such construction for I do not feel pressed to do so by the language used in article 31
On the contrary the language of clause 1 of article 31 is wider than that of clause 2 for deprivation of property may welt be brought about otherwise than by acquiring or taking possession of it
I think clause 1 enunciates the general principle that no person shall be deprived of his property except by authority of law which put in a positive form implies that a person may be deprived of his property provided he is so deprived by authority of law
No question of compensation arises under clause 1
The effect of clause 2 is that only certain kinds of deprivation of property namely those brought about by acquisition or taking possession of it will not be permissible under any law unless such law provides for payment of compensation
If the deprivation of property is brought about by means other than acquisition or taking possession of it no compensation is required provided that such deprivation is by authority of law
 I have made this lengthy extract in order to avoid possible unfairness in summarising it
These 2 9 SCI59 602 observations were made while rejecting an argument of the petitioner in that case which however the learned Judge decided in his favour on another point and are thus purely obiter
With all respect to my learned brother I am unable to share the view expressed by him
He reads clauses 1 and 2as mutually exclusive in scope and content clause 2 imposing limitations only on two particular kinds of deprivation of private property namely those brought about by acquisition or taking possession thereof and clause 1
authorising all other kinds of deprivation with no limitation except that they should be authorised by law
There are several objections to the acceptance of this view
But the most serious of them all is that it largely nullifies the protection afforded by the Constitution to rights of private property and indeed stultifies the very conception of the right to property as a fundamental right
For on this view the State acting through its legislative organ could for instance arbitrarily prohibit a person from using his property or authorise its destruction or render it useless for him without any compensation and with out a public purpose to be served thereby as these two conditions are stipulated only for acquisition and taking possession under clause 2
Now the whole object of Part Iii of the Constitution is to provide protection for the freedoms and rights mentioned therein against arbitrary invasion by the State which as defined by article 12 includes the Legislatures of the country
It would be a startling irony if the fundamental rights of property were in effect to be turned by construction into an arbitrary power of the State to deprive a person of his property without compensation in all ways other than acquisition or taking possession of such property
If the Legislatures were to have such arbitrary power why should compensation and public purpose be insisted upon in connection with what are termed two particular forms of deprivation  What could be the rational principle underlying this differentiation  To say that clause 1 defines the police power in relation to rights of property is no satisfactory answer as the Same power 603 could as well have been extended to these two particular kinds of deprivation
Such extension would at least have avoided the following anomalycompensation is paid to indemnify the owner for the loss of his property
It could make no difference to him whether such deprivation was authorised under clause 1or clause 2
In either case his property would be gone and he would suffer loss
It would matter little to him what happened to the property after he was deprived of it whether it was used for a public purpose or was simply destroyed without any public purpose being served
In fact he could more readily reconcile himself to the loss forced upon him if he found his property being used for the public benefit for in that case he would be participating in that benefit as a member of the public
But that consolation would be denied to him by deprivation under clause 1 which makes his 0loss all the more grievous
But according to Das Js
reading of that clause the Constitution makers have provided for no indemnification of the expropriated owner
Why  Becauseit is said deprivation under clause 1 is an exercise of police power
 This to my mind is fallacious
You first construe the clause as conferring upon the State acting through its Legislature unfettered power to deprive owners of their property in all other cases except the two mentioned m clause 2 and then seek to justify such sweeping and arbitrary power by calling it police power According to Das J clause 1 was designed to confer police power on the State to deprive persons of their property by means other than acquisition or taking possession of such property
He would read the clause in a positive form as implying that a person may be deprived of his property by authority of law
In other words the framers of our Constitution who began Part Ill by formulating the fundamental rights of individuals against invasion by the Legislatures in the country ended by formulating the right of the Legislatures to deprive individuals of their property without compensation
604 Speaking of police power as applied to personal liberty Prof Willis says 1  There are two main requirements for a proper exercise of the police power 1 there must be a social interest to be protected which is more important than the social interest in personal liberty and 2 there must be as a means for the accomplishment of this end something which bears a substantial relation there to
This statement is equally true of police power as applied to private property
This is recognised and given effect to in clauses 2 to 6 of article 19 which delimit the regulative power of the Legislatures as applied to the freedoms enumerated in clause 1of that article including the freedom referred to in sub clause f
But clause 1 of article 31 imposes no such limitations
Why should such absolute power be conferred on the Legislature in relation to private property whereas the exercise of restrictive power under clauses 2 to 6 of article 19 is carefully limited to specified purposes and to the imposition of only reasonable restrictions in each of those cases  Could it have been intended that while restriction imposed on the freedoms mentioned in clause 1 of article 19 should be reasonable and in public interest deprivation of property except in the two cases provided for in clause 2 of article 31 need not be reasonable nor for the public benefit  To say that the requirement of authorisation by law was considered sufficient limitation in all other cases of deprivation takes no note of the fact that in the case of restrictions under clauses 2 to 6 of article 19 also their authorisation could only be by law and yet other limitations have been imposed
In fact authorisation by law can obviously be no limitation on the Legislature and police power as developed in the American case law is essentially a legislative power
Now what is this police power and how does the Constitution of India provide for its exercise by the State  Referring to the doctrine of police power 1 Constitutional Law p 728
605 in America I said in Gopalan s case1 When that power legislative power was threatened with prostration by the excesses of due process the equally vague and expansive doctrine of police power ie the power of Government to regulate private rights in public interest was evolved to counteract such excesses And Das J 1 said that the content of due process of law had to be narrowed down by the enunciation and application of the new doctrine of police power as an antidote or palliative to the former
This court held in the aforesaid case that the framers of our Constitution definitely rejected the doctrine of due process of law
Is it to be supposed that they accepted the antidotedoctrine of police power and embodied it in clause1 of article 31 as a specific power conferred on the Legislatures to deprive persons of their property  The suggestion seems unwarranted and indeed contrary to the scheme of our Constitution
That scheme in marked contrast with the Constitution of America is to distribute legislative powers among the Union and the State Legislatures according to the Lists of the Seventh Schedule and among such powers was included the power of acquisition or requisitioning of property for Union and State purposes in entry No 33 of List I and No 36 of List II respectively
Thus what is called the power of eminent domain which is assumed to be inherent in the sovereignty of the State according to Continental and American jurists and is accordingly not expressly provided for in the American Constitution is made the subject of an express grant in our Constitution
Having granted the power in express terms the Constitution defines in article 31 the limitations on the exercise thereof as constituting the fundamental right to property of the owner all fundamental rights of the people being restraints on the State see observations at page 198 in Gopalan s case1
But the power of social control and regulation of private rights and freedoms for the common good 1   200
2   313
606 being an essential attribute of a social and political organisation otherwise called a State and pervading as it does the entire legislative field was not specially provided for under any of the entries in the legislative Lists and was left to be exercised wherever desired as part of the appropriate legislative power
Even where such regulative powers are defined and delimited as for instance in clauses 2 to 6 of article 19 in relation to the rights and freedoms specified in clause 1 the powers themselves are left to be exercised under laws made with respect to those  matters
For example the power of social control and regulation as applied to freedom of speech and expression is exercisable under a law made with respect to entry No 1 of List II Public Order or entry No 39 of List III Newspapers books and printing presses and in relation to a freedom not falling under clause 1 of article 19 like the freedom to drink or to eat what one likes such freedom can be restrained or even prohibited under a law made with reference to entry No 8 of List II Intoxicating liquors etc or entry No 19 of List III Drugs and poisons
Thus the American doctrine of police power as a distinct and specific legislative power is not recognised in our Constitution and it is therefore contrary to the scheme of the Constitution to say that clause 1 of article 31 must be read in positive terms and understood as conferring police power on the Legislature in relation to rights of property
I entirely agree with the observations of Mukherjea J in Chiranjit Lal s case1  that In interpreting the provisions of our Constitution we should go by the plain words used by the Constitution makers and the importing of expressions like police  power  which is a term of variable and indefinite connotation in American law can only make the task of interpretation more difficult
 The correct approach in my opinion to the interpretation of article 31 is to bear in mind the context and setting in which it has been placed
As already stated Part III of the Constitution is designed to afford protection to the freedoms and rights mentioned 1   907 607 therein against inroads by the State which includes the Legislatures as well as the executive Governments in the country
Though as pointed out in Gopalan s case 1 citing Eshukbayi Eleko vs Officer Administering the Government of Nigeria 2  protection against executive action is not really needed under systems of Government based on British jurisprudence according to which no member of the executive can interfere with the liberty or property of a subject except in pursuance of powers given by law our Constitution makers who were framing a written Constitution conferred such protection explicitly by including the executive Governments of the Union and the States in the definition of the State in article 12
A fundamental right is thus sought to be protected not only against the legislative organ of the State but also against its executive organ
The purpose of article 31 it is hardly necessary to emphasis is not to declare the right of the State to deprive a person of his property but as the heading of the article shows to protect the right to propertyof every person
But how does the article protect the right to property  It protects it by defining the limitations on the power of the State to take away private property without the consent of the owner
It is an important limitation on that power that legislative action is a pre requisite for its exercise
As pointed out by Cooley The right to appropriate private property to public uses lies dormant in the State until legislative action is had pointing out the occasions the modes conditions and agencies for its appropriation
Private property can only be taken pursuant to law3
In England the struggle between prerogative and Parliament having ended in favour of the latter the prerogative right of taking private property became merged in the absolutism of Parliament and the right to compensation as a fundamental right of the subject does not exist independently of Parliamentary enactment
The result is that Parliament alone could authorise interference with the enjoyment of private property
1  2  3 Constitutional Limitations Vol
II p 1119
608 Blackstone also says that it is the Legislature alone that can interpose and compel the individual to part with his property1
It is this limitation which the framers of our Constitution have embodied in clause 1 of article 31 which is thus designed to protect the rights to property against deprivation by the State acting through its executive organ the Government
Clause 2 imposes two further limitations on the Legislature itself
It is prohibited from making a law authorising expropriation except for public purposes and on payment of compensation for the injury sustained by the owner
These important limitations on the power of the State acting through the executive and legislative organs to take away private property are designed to protect the owner against arbitrary deprivation of his property
Clauses 1 and 2 of article 31 are thus not mutually exclusive in scope and content but should in my view be read together and understood as dealing with the same subject namely the protection of the right to property by means of the limitations on the State power referred to above the deprivation contemplated in clause 1 being no other than the acquisition or taking possession of property referred to in clause 2
Much argument was expended to show that clause 2 dealt only with two specified modes of depriving a person of his property namely acquisition and requisitioning and could not therefore be considered to be a mere elaboration of clause 1 which referred to deprivation generally
It was submitted that clause 2 should be read with entry No 33 of List I No 36 of List II and No 42 of List III each of which refers to acquisition or requisitioning of property and to no other mode of deprivation
It was also pointed out that sub section 2 of section 299 of the Government of India Act 1935 as well as entry No 9 of List II of the Seventh Schedule thereof referred only to compulsory acquisition of land for public purposes and it was not until the Bombay High Court held in Tan Bug Taim and Others vs The Collector of Bombay anal Others 2 that rule 75a of the Defence of India Rules 1 Commentaries Vol
I p 110
2 ILR 609 under which a property situated in Bombay was requisitioned was ultra vires on the ground that entry No 9 of List II did not confer on the Legislature the power of requisitioning that such power was conferred on the Central Legislature by the India Proclamations of Emergency Act 1946 9 and 10 Geo
V Ch 23
Attention was drawn to the Regulations and Acts relating to compulsory acquisition of land in this country including the Land Acquisition Act 1894 all of which provided for the vesting of the property acquired in the Government or in one of its officers and it was suggested that the framers of our Constitution who must have been aware of the difficulties arising out of the lacuna in the Government of India Act 1935 in regard to the power of requisitioning added the words taken possession of in clause 2 and the word requisitioning in the entries referred to above
It was therefore urged that the words acquired or taken possession of should not be taken to have reference to all forms of deprivation of private property by the State
I see no sufficient reason to construe the words acquired or taken possession used in clause 2 of article 31 in a narrow technical sense
The Constitution marks a definite break with the old order and introduces new concepts in regard to many matters particularly those relating to fundamental rights and it cannot be assumed that the ordinary word acquisition was used in the Constitution in the same narrow sense in which it may have been used in pre Constitution legislation relating to acquisition of land
These enactments it should be noted related to land whereas article 312 refers to movable property as well as to which no formal transfer or vesting of title is necessary
Nor is there any warrant for the assumption that taking possession of property was intended to mean the same thing as requisitioning property referred to in the entries of the Seventh Schedule
If that was the intention why was the word requisitioning not used in clause 2 as well  It is fallacious to suggest that unless taking possession is synonymous with requisitioning the power to make a law 610 authorising the taking of possession of property would be lacking because no entry in any of the Lists of the Seventh Schedule confers that power
A specific entry in the legislative Lists is no more necessary for conferring such power than for conferring power to make a jaw authorising deprivation of property which clause 1 of article 31 postulates
See observations in PD Shamdasani vs Central Bank of India1
The word acquisition is not a term of art and it ordinarily means coming into possession of obtaining gaining or getting as one s own
It is in this general sense that the word has been used in articles 9 11 and 191 fand not as implying any transfer or vesting of title
In Minister of State Jar the Army vs Dalziel2  a Full Bench of the High Court of Australia had to construe the scope of the legislative power with respect to acquisition of property conferred on the Commonwealth Parliament by section 51 xxxi of the Austrailan Constitution 63 and 64 Vic Ch 12
and the court decided by a majority that the power included the power to take possession of property for a temporary purpose for an indefinite period
To say that acquisition implies the transfer and vesting of title in the Government is to overlook the real nature of the power of the State as a sovereign acting through its legislative and executive organs to appropriate the property of a subject without his consent
When the State chooses to exercise such power it creates title in itself rather than acquire it from the owner the nature and extent of the title thus created depending on the purpose and duration of the use to which the property appropriated is intended to be put as disclosed in the law authorising its acquisition
No formula of vesting is necessary
As already stated in the case of moveable property no formal transfer or vesting of title apart from seizing it could have been contemplated And what is more clause 5 b ii of article 31 which excepts any law made in future for the prevention of danger to life or property from the operation of clause 2 shows that the latter clause but for such exception would entail liability to pay compensation for deprivation by destruction which must therefore 1  394
2  611 be taken to fall within the scope of clause 2 for a law made for the prevention of danger to life or property may often have to provide for destruction of the property appropriate
I am of opinion that the word acquisition and its grammatical variations should in the context of article 31 and the entries in the Lists referred to above be understood in their ordinary sense and the additional words taking possession of or requisitioning are used in article 312 and in the entries respectively not in contradistinction with but in amplification of the term acquisition so as to make it clear that the words taken together cover even those kinds of deprivation which do not involve the continued existence of the property after it is acquired
They would for instance include destruction which implies the reducing into possession of the thing sought to be destroyed as a necessary step to that end
The expression taking possession can only mean taking such possession as the property is susceptible of and not actual physical possession as the interest in or in any company owing any commercial or industrial undertaking which is expressly included in clause 2 of article 31 is not  susceptible of any actual physical occupancy or seizure
It is however unnecessary here to express any concluded opinion on the precise scope and meaning of the expression shall be taken possession of or acquired in clause 2 except to say that it does not admit of being construed in the same wide sense as the word taken used in the Fifth Amendment of the American Constitution but implies such an appropriation of the property or abridgement of the incidents of its ownerships as would amount to a deprivation of the owner
Any other interference with enjoyment of private property short of such appropriation or abridgement would not be compensable under article 312
It will now be seen that the two objections raised by Das J to the view expressed above namely that 612 clauses 1 and 2 must be read together and understood as dealing with the same topic are really baseless
The first objection is that clause 1 would then be redundant
It would not be so because it embodies one of the three important limitations on the exercise of the State power of deprivation of private property namely the necessity for the legislative action as a condition precedent to the exercise of the power and constitutes a protection against the executive organ of the State
The second objection that the State s power in an emergency to deprive a person of his property without payment of compensation as for example to demolish an intervening building to prevent a conflagration from spreading would be excluded is equally baseless
Cases of that kind as we have seen would fail within the exception in clause 5bii and no compensation would be payable for the loss caused by the destruction of property authorised under that clause
The learned Attorney General suggested that sub clause b was inserted ex abundante cautela as even without it no one could have supposed that a law of the kind mentioned in that sub clause would fall under clause 2
There could have been no doubt for instance that the power of taxation referred to in paragraph i of that sub clause was a distinct power
It is difficult to appreciate this argument
If the exceptions in sub clause b were so obvious that they need not have been explicitly provided for then equally must be second objection of Das J fall to the ground
To say that sub clause bis introduced by way of abundant caution is not to do away with the exceptions but to emphasise their existence aliunde
Whether it was considered necessary to provide expressly that destruction of private property under emergency conditions entails no liability to pay compensation or whether the State s power to do so was so well established that sub clause biiwas really unnecessary and must be taken to have been inserted ex abundante cautela in either view the second objection must equally fail
The fact is that all the cases referred to in sub clause b are different forms 613 of deprivation of property and as difficulties of construction might arise in a written Constitution if they are not expressly and specifically excepted from the requirement under clause 2 as to payment of compensation the framers have thought it necessary to insert clause 5 b
Where was the necessity it was asked to provide in clause 1 of article 31 for protection against the executive government in the matter of compulsory acquisition of property by the State as no such protection is provided for in the case of the regulative powers exercisable under article 192 to 6 The answer is the same need apparently which dictated the enactment of article 265 providing for similar protection in the matter of taxation
In any case this would be no more of an objection if it be an objection to the view I have indicated above than to the other view which also recognises the necessity for legislative action before a person could be deprived of his property
Attention was called  to article 38 as showing that one of the goals set by the Constitution was the promotion of social welfare and it was urged that the attainment of that object as well as the growing complexities of modern conditions of life must call for an expanding power of social control and regulation particularly in the sphere of the enjoyment of private property and that the exercise of such power without entailing liability to pay compensation ought not to be confined within the narrow limits specified in article 31 5 b
This is a misconception
In the first place social welfare is not inconsistent with the ownership of private property and does not demand arbitrary expropriation of such property by the State without compensation
On the other hand as pointed out by Blackstone The public good is in nothing more essentially interested than in the protection of every individual s private rights as modelled by the municipal law1
This is not an antiquated view
So modern a document as the Declaration of Human 1 Commentaries Vol
I p 109
614 Rights in the United Nations has specifically provided for the protection of private property by including the clause No one shall be arbitrarily deprived of his in article 17 and the framers of our Constitution have evidently proceeded on that view
Secondly the argument also overlooks that clause 5 b was not intended to define and does not define exhaustively the power of social control and regulation in relation to rights of private property
It only limits the purposes for which the power could be exercised without liability to pay compensation though its exercise results in deprivation of property in the sense already explained
But where its exercise does not involve deprivation of property no question of paying compensation would arise and the Legislatures in the country would as already indicated be free to enact laws providing for the exercise of such power within the fields marked out for them in the Legislative Lists
There is therefore no room for the apprehension that article 31 5b would unduly cramp social control and regulation of private property for the public good or would lead to any alarming consequences to the safety of the community
But why all this ado it was asked about protection against deprivation of property by legislative action  There is no such protection provided in the Constitution against deprivation of property by the Legislature exercising the power of taxation
Why then complain if there is no protection against the Legislature authorising deprivation of property without compensation under article 311  Our Constitution makers it was said trusted the Legislature as the people of Great Britain trust their Parliament which protects the Englishman s right to property
In ultimate analysis is not well informed and organised public opinion the true and effective protection against arbitrary action of the Legislature  The argument has no force
So far as the power of taxation is concerned the Constitution recognises no fundamental right to immunity from taxation and that is why presumably no constitutional protection is provided against the exercise of that power
But fundamental 615 rights under the Constitution stand on a different footing
Indeed the argument is a bold challenge to the policy of including a declaration of such rights in Part HI of the Constitution
In Gopalan s case1 I said Madison who played a prominent part in framing the First Amendment of the American Constitution pointing out the distinction due to historical reasons between the American and the British ways of securing the great and essential rights of the people  observed Here they are secured not by laws paramount to prerogative but by Constitutions paramount to laws  This has been translated into positive law in Part 1I1  of the Indian Constitution
There have always been two schools of opinion regarding the efficacy of a declaration of fundamental rights in a Constitution
Britain never believed in a formal declaration of such rights
Referring to the demand of the Indian Delegation that the Parliamentary Bill which was later passed as the Government India Act 1935 should embody certain fundamental rights the Joint Parliamentary Committee observed2  The question of so called fundamental rights which was much discussed at the three Round Table Conferences was brought to our notice by the British India Delegation many members of which were anxious that the new Constitution should contain a declaration of rights of different kinds for reassuring minorities for asserting the equality of all persons before the law and for other like purposes and we have examined more than one list of such rights which have been compiled
The Statutory Commission observe with reference to this subject We are aware that such provisions have been inserted in many Constitutions notably in those of the European States formed after the war Experience however has not shown them to be of any great practical value
Abstract declarations are useless unless there exist the will and means to make them effective With these 11950 ScR 88 198
2 Para
616 observations we entirely agree and a cynic might indeed find plausible arguments in the history during the last ten years of more than one country for asserting that the most effective method of ensuring the destruction of a fundamental right is to include a declaration of its existence in a constitutional instrument
 But the American view is different
Answering a similar objection to the inclusion of a Bill of Rights in the American Constitution Jefferson said But though it is not absolutely efficacious under all circumstance s it is of great potency always and rarely inefficacious
A brace the more will often keep up the building which would have fallen with that brace the less
There is a remarkable difference between the characters of the inconveniences which attend a declaration of rights and those which attend the want of it
The inconveniences of the declaration are that it may cram Government in its useful exertions
But the evil of this is short lived moderate and reparable
The inconveniences of the want of a declaration are permanent affective and irreparable
They are in constant progressive from bad to worse
The executive in our Governments is not the sole it is scarcely the principal object of my jealousy
The  tyranny of the Legislatures is the most formidable dread at present and will be for many years Quoted in Cooley s Constitutional Limitations 8th Edn
I p 535
It is obvious that the framers of our Constitution shared the American view and included Part III in the Constitution of India
It is therefore a wrong  approach to construe the articles of Part III by pointing to the British way which is more a traditional than a constitutional way of protecting the rights and liberties of the individual by making Parliament supreme
On this view of the meaning and effect  of article 31 the question is whether section 7 read with section 4 of the amending Act infringes the fundamental right of the respondent under that article
These provisions 617 by their retrospective operation undoubtedly abridge the respondent s rights of property by nullifying one of the incidents of the estate purchased by him at the revenue sale namely the right to annul certain kinds of under tenures and evict certain classes of undertenants in occupation of portions of the estate
Does such abridgement amount to deprivation of property within the meaning of article 31 as interpreted above and if so does it fall within the exception in clause 5 b ii of that article  Now the word property in the context of article 31 which is designed to protect private property in all its forms must be understood both in a corporeal sense as having reference to all those specific things that are susceptible of private appropriation and enjoyment as well as in its juridical or legal sense of a bundle of rights which the owner can exercise under the municipal law with respect to the user and enjoyment of those things to the exclusion of all others
This wide connotation of the term makes it sometimes difficult to determine whether an impugned law is a deprivation of property within the meaning of article 31 2 for any restriction imposed on the use and enjoyment of property can be regarded as a deprivation of one or more of the rights theretofore exercised by the owner
The American courts have experienced similar difficulty in deciding whether a given statutory abridgement of the rights of the owner is an exercise of the police power for which no compensation can be claimed or a taking of property within the meaning of the Fifth Amendment clause Nor shall private property be taken for public use without just compensation The general rule at least said Holmes J in delivering the majority opinion in Pennsylvania Coal Co vs Mahon1  is that while property may be regulated to a certain extent if regulation goes too far it will be recognised as a taking
 The vague and expansive doctrine of police power and the use of the term taken in the Fifth Amendment construed m a very wide sense so as to cover any injury or damage to property coupled with the equally vague 1  3 95 SGI59 618 and expansive concept of due process allow a greater freedom of action to the American courts in accommodating and adjusting on what may seem to them a just basis the conflicting demands of police power and the constitutional prohibition of the Fifth Amendment
Under the Constitution of India however such questions must be determined with reference to the expression taken possession of or acquired as interpreted above namely that it must be read along with the word deprived in  clause 1and understood as having reference to such substantial abridgement of the rights of ownership as would amount to deprivation of the owner of his property
No cut and dried test can be formulated as to whether in a given case the owner is deprived of his property within the meaning of article 31 each case must be decided as it arises on its own facts
Broadly speaking it may be said that an abridgement would be so substantial as to amount to a deprivation within the meaning of article 31 if in effect it withheld the property from the possession and enjoyment of the owner or seriously impaired its use and enjoyment by him or materially reduced its value
The learned Judges of the High Court did not consider the case from this point of view
As has been stated they applied article 19 1 f and 5 and held that section 7 of the amending Act by its retrospective operation imposed on the respondent s enjoyment of the property purchased by him at the revenue sale restrictions which were not reasonable
That view for reasons already indicated cannot be accepted and the matter has to be looked at from the point of view of article 31 as interpreted above
A comparison of the scope and effect of the old section 37 which is substituted in its place by section 4 of the amending Act and which section 7 shows to be clearly retrospective discloses that although the right of a purchaser to annual under tenures and evict under tenants is curtailed by the new section 37 by enlarging the scope of the exceptions in the old section it entitles the purchaser as a countervailing advantage to enhance the rent payable by the tenure holders and tenants 619 newly brought within the exception
The purchaser is left free in other respects to continue in enjoyment of the property as before
In other words what the amending Act seeks to do is to enlarge the scope of the protection provided by the exception in the old section as it was found to be inadequate while conferring certain compensating benefits on the purchaser
This amendment is in the line with the traditional tenancy legislation in this country affording relief to tenants whenever the tenancy laws were found due to changing conditions to operate harshly on the tenantry
I find it difficult to hold that the abridgement sought to
be effected retrospectively of the rights of a purchaser at a revenue sale is so substantial as to amount to a deprivation of his property within the meaning of article 31 1 and 2
No  question accordingly arises to the applicability of clause 5 b ii to the case
In the result the appeal is allowed and the judgment of the High Court is set aside
The first respondent will pay the costs of this appeal incurred by the appellant here and in the lower Court
MEHR CHAND MAHAJAN J
For reasons given in my judgment in Dwarkadas Shrinivas vs Sholapur Spinning and Weaving Mills Ltd CA 141 of 19521  I agree with my Lord the Chief Justice in his construction of article 31 of the Constitution
I also concur in the conclusions reached by him and in his decision of the appeal
DAS J I agree that this appeal must be allowed but I have arrived at this conclusion by a different process of reasoning
As the arguments advanced before us have raised very important constitutional issues it is only right that I should give the reasons for my decision in some detail
The facts and circumstances leading up to the present appeal are as follows At a revenue sale held on the 9th January 1942 the respondent Subodh Gopal Bose purchased the entire Touzi No 341 recorded in the collectorate of the 1 Reported infra
620 permanently settled district of 24 Parganahs in West Bengal
At the date of that sale the auction purchasers at a revenue sale had under section 37 of the Bengal Land Revenue Sales Act 1859 as it then stood certain rights as therein mentioned
That section ran thus 37
The purchaser of an entire estate in the permanently settled districts of Bengal Bihar and Orissa sold under this Act for the recovery of arrears due on account of the same shall acquire the estate free from all encumbrances which may have been imposed upon it after the time of settlement and shall be entitled to avoid and annul all under tenures and forthwith to eject all under tenants with the following exceptions  First Istimrari or Mukarrari tenures which have been held at a fixed rent from the time of the permanent settlement
Secondly Tenures existing at the time of settlement which have not been held at a fixed rent   Provided always that the rents of such tenure shall be liable to enhancement under any law for the time being in force for the enhancement of the rent of such tenures
Thirdly Talukdari and other similar tenure created since the time of settlement and held immediately of the proprietors of estates and farms for terms of years so held when such tenures and farms have been duly registered under the provisions of this Act
Fourthly Leases of lands whereon dwelling houses manufactories or other permanent buildings have been erected or whereon gardens plantations tanks wells canals places of worship or burning or burying grounds have been made or wherein mines have been sunk
And such a purchaser as  is aforesaid shall be entitled to proceed in the manner prescribed by any law for the time being in force for the enhancement of the rent of any land coming within the fourth class of exceptions above made if he can prove the same to 621 have been held at what was orginally an unfair rent and if the same shall not have been held at a fixed rent equal to the rent of good arable land for a term exceeding twelve years but not otherwise Provided always that nothing in this section contained shall be construed to entitle any such purchaser as aforesaid to eject any raiyat having a right of occupancy at a fixed rent or at a rent assessable according to fixed rules under the laws in force or to enhance the rent of any such raiyat otherwise than in the manner prescribed by such laws or otherwise than the former proprietor irrespectively of all engagements made since the time of settlement may have been entitled to do
 In exercise of his rights under the section set out above the respondent Subodh Gopal Bose annulled all  under tenures and tenancies appertaining to the said Touzi and on tile 18th March 1946 instituted a suit being Title Suit No 35 of 1946 in the Fourth Court of the Subordinate Judge at Alipore 24 Parganahs for the ejectment of respondents Nos 2 to 6 claiming that he was entitled to recover possession of the lands in suit by virtue of the rights conferred on him by section 37
The respondent No 2 who was the defendant No 1 alone contested the suit
His defence was inter alia that he was a raiyat and as such protected by the proviso to section 37
He  also claimed protection under the fourth exception to that section
The learned Subordinate Judge who tried the suit delivered his judgment on the 14th February 1949
By that judgment he overruled the contentions of the contesting defendant and passed a decree for ejectment against him
He dismissed the suit against the other defendants who are now respondents Nos 3 to 6 holding that they were not necessary parties to the suit
On the 25th March 1949 the respondent No 2 preferred an appeal being Title Appeal No 252 of 1949 before the District Judge at Alipore 24Parganahs
That appeal was transferred to the court of the Additional District Judge for hearing
While 622 that appeal was pending the West Bengal Legislature passed West Bengal Act VII of 1950 called the Bengal Land Revenue Sales West Bengal Amendment Act of 1950 which received the assent of the Governor of Bengal on the 15th March 1950 and was published in the Official Gazette on the day
By section 4 of the amending Act section 37 of the Bengal Revenue Sales Act 1859 was replaced by a new section the material part of which runs thus 37
1 The purchaser of an entire estate in the permanently settled districts of West Bengal sold under this Act for the recovery of arrears due on account of the same shall acquire the estate free
from all encumbrances which may have been imposed after the time of settlement and shall be entitled to avoid and annul all tenures holdings and leases with the following exceptions a tenures and holdings which have been held from the time of the permanent settlement either free of rent or at a fixed rent or fixed rate of rent
and b i tenures and holdings not included in exception a above made and ii other leases of land whether or not for purposes connected with agriculture or horticulture existing at the date of issue of the notification for sale of the estate under this Act Provided that notwithstanding anything contained in any law for the time being in force or in any lease or contract no person shall be entitled to hold under such a purchaser as is aforesaid any tenure holding or lease coming within exception b above made free Of rent or at a low rent or at a rent or rate of rent fixed in perpetuity or for any specified period unless the right so to hold has been expressly recognised under any law for the time being in force by any competent civil or revenue court and the purchaser shall be entitled to proceed in the manner prescribed by any law for the time being in force for the 623 determination of a fair and equitable rent of such tenure holding or lease
 Section 7 of the amending Act provides as follows    7
1 a Every suit or proceeding for the ejectment of any person from any land in pursuance of section 37 or section 52 of the said Act and b every appeal or application for review or revision arising out of such suit or proceeding pending at the date of the commencement of this Act shall if the suit proceeding appeal or application could not have been validly instituted preferred or made had this Act been in operation at the date of the institution the preferring or the making thereof abate
2 Every decree passed or order made before the date of commencement of this Act for the ejectment of any person from any land in pursuance of section 37 or section 52 of the said Act shall if the decree or order could not have been validly passed or made had this Act been in operation at the date of the passing or making thereof be void   Provided that nothing in this section shall affect any decree or order in execution whereof the possession of the land in respect of which the decree or order was passed or made has already been delivered before the date of commencement of this Act
3 Whenever any suit proceeding appeal or application abates under sub section 1 or any decree or order becomes void under sub section 2 all fees paid under the Court fees Act 1870 shall be refunded to the parties by whom the same were respectively paid
 It is quite clear that under this section 7 the suit of the respondent Subodh Gopal Bose must abate and the decree passed in his favour must become void if that section be valid law and intra vires the Constitution of India
On the 21st July 1950 the respondent Subodh Gopal Bose applied before the Additional District Judge before whom the  appeal was pending to make 624 a reference under article 228 of the Constitution of India for a decision of the question whether the provisions of section 7 were void being ultra vires the Constitution
The learned Additional District Judge by his order dated the 16th September 1950 dismissed that application
On the 24th November 1950the respondent Subodh Gopal Bose applied to the High Court under article 228 and eventually on the 18th December 1950 the High Court directedthe appeal to be transferred to the High Court only for the decision of the constitutional point
The proceedings were numbered as Reference Case No 4 of 1950
Notice having been given by the Court to the Advocate General of Bengal the State of West Bengal appeared on the Reference
On the 22nd March 1951 the High Court held that section 7 imposed an unreasonable restriction on the respondent Subodh Gopal Bose s right to hold property and violated his fundamental right guaranteed by article 19 1 f read with article 19 5 and was therefore void under article 13 1
With this finding the High Court sent back the records to the lower appellate court for disposal of the appeal in the light of that finding
On the 30th November 1951 the High Court gave leave to the State of West Bengal to appeal to us
Hence the present appeal
Section 7 of the amending Act the validity whereof is challenged before us in terms affects preexisting rights
Accordnig to that section every suit or proceedings for ejectment under old section 37 and every appeal or application for review or revision arising out of such suit or proceeding pending at the commencement of the amending Act is to abate if the suit proceeding appeal or application could not have been validly instituted referred or made had the amending Act been in operation at the date of such suit proceeding appeal or application
Further every decree passed or order made before the commencement of the amending Act for the ejectment of any person from land in pursuance of old section 37 is likewise to become void if such decree or order could not have been validly passed or made if the 625 amending Act had been in operation at the date of the decree or order
The proviso however saves decrees or orders in execution whereof possession had been delivered before the commencement of the amending Act
It is thereforeclear that section 7 affects pre existing rights bygiving in effectretrospective operation to section4 which has sub stituted inter alia the new section 37 for the old section 37 of the Act of 1859
A cursory comparison of the language of the old section 37 with that of the new section 37 will at once make it clear that the substantial right given by the old sectionto the purchaser to avoid and annul under tenuresand to eject under tenants is no longer availableto him under the new section 37
Although the opening part of the new section 37 purports to give to the purchaser the right to avoid and annul the tenures etc
 that right by reason of the wide sweep of exception b has for all practical purposes ceased to exist
The new section 37 does not deprive the purchaser of the physical property namely the estate purchased at the revenue sale and he continuesto be the owner of that property and can exerciseand enforce all the rightes which his ownership giveshim except that he cannot by reason of the new section 37 avoid or annul the under tenures etc
or eject the under tenants
In other words out of the bundle of rights constituting the ownership acquired by him under the old section 37 an item of important right has been taken away thereby abridging or restricting his ownership
The respondent Subodh Gopal Bose contends that his fundamental right under article 191f of the Constitution namely his right to hold that is to say his right to enjoy and exercise the full rights of ownership in relation to the property acquired by him under the old section 37 has been I violated and therefore section 7 which operates retrospectively and gives retrospective operation to the new section 37 is ultra vires the Constitution and is void under article 131
The learned Attorney General has not seriously contended that the impugned section has not 626 prejudicially affected the right given to the purchaser by the old section 37 but he maintains that the abridgement of the rights of the purchaser at a revenue sale brought about by the new section 37
amounts to nothing more than the imposition of a reasonable restriction on the exercise of the right conferred by article 19 1 f in the interests of the general public and is perfectly legitimate and permissible under clause 5 of that article
The High Court repealled the above noted contention and held that the restriction was unreasonable
The High Court based its conclusions on three things namely 1 the retrospective operation of the impugned section ii the absence of any provision for the abatement of the purchase price and iii the failure of the State to show any reason why the impugned section was introduced into the amending Act
The learned Attorney General submits that the first two elements taken into consideration by the High Court are wholly irrelevant for the purpose of determining whether the restriction imposed was reasonable in the interest of the general public
Ordinarily a statute is construed prospectively unless it is made retrospective by express words or necessary intendment but the learned Attorney General submits the fact that a statute is expressly or by necessary implication made retrospective does not by itself furnish any cogent reason for saying that the statute is prima
facie unfair and therefore unreasonable
While I see some force in this argument I am nevertheless not convinced that the fact of the statute being given retrospective operation may not be properly taken into consideration in determining the reasonableness of the restriction imposed in the interest of the general public
Nor am I satisfied that the loss occasioned to the purchaser by reducing without any abatement of the purchase price an estate in possession into one in reversion may not also be taken into account in determining the reasonableness of the restrictions permissible under article 19 5
As said by my Lord the Chief justice in The State of Madras vs VG Row1 I  at 7607
627 It is important in this context to bear in mind that the test of reasonableness wherever prescribed should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid  down as applicable to all cases
The nature of the right alleged to have been infringed the underlying purpose of the restrictions imposed the extent and urgency of the evil sought to be
remedied thereby the disproportion of the imposition the prevailing conditions at the time should all enter into the judicial verdict
 As regards the third element the High Court has pointed out that no suggestion had been made before it that the number of pending suits or proceeding for ejectment of tenants was abnormally large or that there was any other cogent reason for introducing the impugned section in the amending Act
Indeed in the later case of Iswari Prasad vs NR Sen1 a special bench of the same High Court consisting of three learned Judges including the two who had decided the case under appeal before us has distinguished the very judgment from the one then under appeal and in doing so laid great emphasis on the absence of any such suggestion in this case
The High Court held that those circumstances were present in the later case and accordingly held that the law impugned in the later case was not unconstitutional
It is indeed very unfortunate that several important matters which would have assisted the High Court in arriving at a right conclusion as to the reasonableness of the restrictions imposed by the impugned section were not brought to the notice of the High Court
Thus for example the statement of objects and reasons appended to the Bill which eventually became the amending Act does not appear to have been placed before the High Court
The statement of the objects and reasons appended to the Bill quite clearly refers to the great hardship caused by the application of the old section 37 to a large number of people in the urban area and particularly in Calcutta 1 at p 727 628 and its suburbs where the then prevailing phenomenal increase in land values had supplied the necessary incentive to speculative purchasers in exploiting that section for unwarranted large scale eviction and maintains according to the sponsor of the Bill that such large scale evictions necessitated the enlargement of the scope of protection of that section with due safeguards for the securing of Government revenue
It is well settled by this court that the statement of objects and reasons is not admissible as an aid to the construction of a statute see Aswini Kumar Ghose vs Arabinda Bose1 and 1 am not therefore referring to it for the purpose of construing any part of the Act or of ascertaining the meaning of any word used in the Act but I am referring to it only for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extent and urgency of the evil which he sought to remedy
Those are all matters which as already stated must enter into the judicial verdict as to the reasonableness of the restrictions which article 19 5 permits to be imposed on the exercise of the right guaranteed by article 19 1f
Further there is another significant fact which does not appear to have been pressed on the attention of the High Court
The Bill had been
introduced in the Legislature on the 23rd March 1949 and was referred to a select committee
On the 25th April 1949 when the Bengal Legislature was not in session West Bengal Ordinance No 1 of 1949 was passed The two preambles to that Ordinance recited as follows Whereas it is expedient pending the enactment of further legislation to provide for the temporary stay of certain suits proceedings and appeals in pursuance of the Act And whereas the West Bengal Legislature is not in session and the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action  The fact that an Ordinance had to be passed pending the passing of this Bill and the preambles to the 1  629 Ordinance do undoubtedly indicate that in the opinion of the authorities the then prevailing conditions disclosed a serious evil which urgently necessitated the taking of immediate action
Further it appears from the judgment delivered by the High Court on the application subsequently made by the State for leave to appeal to this court that a number of cases were pending before the courts in which the same question was involved
This is also a circumstance which was not brought to the notice of the High Court before the judgment under appeal was pronounced
Finally in the judgment under appeal I find no reference to the proviso to the new section 37 which enlarges as it were by way of compensation for the loss of the right of ejectment the purchaser s right to claim enhancement of rent much beyond the very limited right of enhancement of rent which under the old section was confined only to the fourth excepted under tenures
Then there is the fact found by the High Court that land values had gone up so high that auction purchasers could now be found who even without the right to eject the under tenants would willingly pay a sum much in excess of the arrears of Government revenue which remains constant since the permanent settlement
The cumulative effect of the foregoing facts which were not placed before the High Court much outweighs the consideration of the pecuniary loss of the respondent Subodh Gopal Bose as the auction purchaser and in the circumstances the infliction of the loss of the right to eject under tenants can only be regarded as a reasonable restriction permitted by article 195 to be imposed on the exercise of the right guaranteed under article 191 f
In my judgment the reasons for which the High Court declared section 7 of the amending Act to be ultra vires the Constitution are no longer tenable in view of the circumstances now before us which were not brought to the notice of the High Court and the decision of the High Court cannot therefore be sustained
An alternative argument however has been raised by learned advocate for the respondent Subodh Gopal Bose that the impugned section violates the 630 fundamental right secured to him by article 312 of the Constitution and is therefore void under article 131
The contention shortly put is that the right conferred by the old section 37 to avoid and annul the under tenures and to eject the under tenants is by itselfproperty anti that as the new section 37 has taken away that property without having made any provision for I compensation there for the impugned section is unconstitutional in that it violates the provisions of article 31 2
The Bill which eventually became the Bengal Land Revenue Sales West Bengal Amendment Act 1950 was introduced in the West Bengal Legislature on the 23rd March 1949 and after having been passed by the Legislature it received the assent of the Governor on the 15th March 1950
The Bill was therefore pending in the West Bengal Legislature when the Constitution of India came into force and was passed into law after the date of the Constitution
It does not appear however that the Bill was reserved for the consideration of the President or received his assent
Therefore the impugned law cannot claim the protection of article 31 4 and what is more if it is such a law as is referred to in clause 2 of article 31 then by virtue of clause 3 it cannot have any effect at all
The question therefore is as to whether the impugned section is or is not such a law as is referred to in article 312
The question requires for a proper answer a close scrutiny of the provisions of article 31 and other relevant articles of the Constitution bearing on it
At the outset it is well to bear in mind the decision of this court in AK Gopalan s case1 explaining the correlation between the provisions of sub clauses a to e and g of clause 1 of article 19 and articles 20 21 and 22 of the Constitution
Kania CJ at page 101 my Lord the present Chief Justice at pages 191 192 Mahajan J at page 229 Mukherjea J at pages 255256 and I at pages 302 306 expressed the view that the validity of the Preventive Detention Act could not be judged by the provisions of article 19
The majority  631 of the Bench took the view that the rights conferred by article 191 a to e and g could be enjoyed only so long as the citizen was free and had the liberty of his person but that the moment he was lawfully deprived of his personal liberty under article 21 he ceased to have the rightsguaranteed by article 19 I a to e and g
The result of this part of the deci sion in AK Gopalan s case1 was summarised in the later case of Ram Singh vs The State of Delhi2 by my Lord the present Chief Justice in the judgment that he delivered on behalf of himself Kania C 1and myself
Said his Lordship at pages 455 456 Although personal liberty has a content sufficiently comprehensive to includei the freedoms enumerated in article 19 1 and its deprivation would result in the extinction of those freedoms the Constitution has treated these civil liberties as distinct fundamental rights and made separate provisions in article 19 and articles 21 and 22 as to the limitations and conditions subject to which alone they could be taken away of abridged
The interpretation of these articles and their correlation were elaborately dealt with by the full court in Gopalan s case1
The question arose whether section 3 of the Act was a law imposing restrictions on the right to move freely throughout the territory of India guaranteed under article 19 1 d and as such was liable to be tested with reference to its reasonableness under clause 5 of that article
It was decided by a majority of 5 to 1 that a law which authorises deprivation of personal liberty did not fall within the purview of article 19 and its validity was not be judged by the criteria indicated in that article but depended on its compliance with the requirements of articles 21 and 22 and as section 3 satisfied those requirements it was constitutional Mahajan J who by a separate judgment dissented from the majority on another point not material for our present purpose said at page 467 On the other points argued in the case I agree judgment of Sastri J 1  9  632 It must therefore be regarded as settled that the freedom referred to in article 19 1 sub clauses a to e and g are guaranteed to a citizen of India while he is a free man
These freedoms even when they are so available are however not absolute and unbridled licence but are subject to social control in that reasonable restrictions may be imposed on them by law as indicated in clauses 2 to 6 of article 19
But as soon as the citizen is lawfully deprived of his personal liberty as a result of detention punitive or preventive he loses his capacity to exercise the several rights enumerated in sub clauses a to e and g of article 19 1 and cannot complain of the infraction of any of those rights
The validity of the law which deprived a citizen of his personal liberty which inevitably destroys his rights under the sub clauses mentioned above cannot be judged by the test of reasonableness laid down in clauses 2 to 6 of article 19 but falls to be determined according to the provisions of articles 20 21 and 22 of the Constitution
This I apprehend is the result of the two decisions of this court referred to above
Such being the correct correlation between article 1 sub clauses a to e and g on the one hand and article 21 on the other the question necessarily arises as to the correlation between article 19 1f and article 31
Article 19 1f guarantees to a citizenas one of his freedoms the right to acquire hold and dispose of property but reasonable restrictions may be imposed on the exercise of that right to the extent indicated in clause 5
Article 31 as its heading shows guarantees to all persons citizens and non citizens the right to property as a fundamental right to the extent therein mentioned
What I ask myself is the correlation between article 19 1 f read with article 19 5 and article 31  If as held by my Lord in AK Gopalan s case1 at page 191 sub clauses a to e and g of article 19 1 read with the relevant clauses 2 to 6 presuppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum of personal freedom on which alone the enjoyment of these rights necessarily 1  633 rests it must follow logically that article 19 1f read with article 19 5 must likewise presuppose that the person to whom that fundamental right is guaranteed retains his property over or with respect to which alone that right may be exercised
I found myself unable to escape from this logical conclusion and so I said in AK Gopalan s case at pages 304 305 But suppose a person loses his property by reason of its having been compulsorily acquired under article 31 he loses his right to hold that property and cannot complain that his fundamental right under subclause f of clause 1 of article 19 has been infringed
It follows that the rights enumerated in article 19 1 subsist while the citizen has the legal capacity to exercise them
If his capacity to exercise them is gone by reason of lawful conviction with respect to the rights in sub clauses a to e and g or by reason of a lawful compulsory acquisition with respect to the right in sub clause f he ceases to have those rights while his incapacity lasts
 I reiterated the same opinion in my judgment in ChiranJitlal s case1
Nothing that I have heard on the present occasion has shaken the opinion I expressed in those cases as to the correlation of article 19 1 f read with article 19 5 and article 31 of our Constitution
A suggestion was thrown out by my Lord in course of arguments that article 19 1 f was concerned only with the abstract right and capacity to acquire hold and dispose of property and had no reference or relation to any rights in any particular property but that article 31 only was concerned with the right to a concrete property and there was no correlation between the two articles
The matter however was not argued by either side and I am not prepared to express any final opinion on it
For the purpose of this appeal I am content to proceed on the footing that article 19 relates to abstract right as well as to right to concrete property
I  at p 919 4 95 SCI59 634 I now turn to article 31 which appears under the heading right to Property
The clauses of that article which are material for the purposes of determining the question in debate run as follows  1 No person shall be deprived of his property save by authority of law
2 No property movable or immovable including any interest in or in any company owing any commercial or industrial undertaking shall be taken possession 01 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
    5 Nothing in clause 2 shall affect a the provisions of any existing law other than a law to which the provisions of clause 6 apply or b the provisions of any law which the State may hereafter make i for the purpose of imposing or levying any tax or penalty or ii for the promotion of public health or the prevention of danger to life or property or iii in pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India and the Government of any other country or otherwise with respect to property declared by law to be evacuee property
 It is suggested that the two clauses are not mutually exclusive but must be read together and that they are only concerned with what has been described as the State s power of eminent domain which according to Professor Willis means the legal capacity of sovereignty or one of its governmental organs to take private property for a public use upon the 635 payment of just compensation
Reference is made to certain passages culled from the works of eminent ancient writers like the Dutch publicist and statesman Hugo Grotius who flourished in the  17th century and William Blackstone the celebrated English jurist who wrote his Commentaries round about 1769 and from Judge Cooley s well known book on Constitutional Limitations to show that from early times jurists have insisted on three things as pre requisites for the exercise of this power of eminent domain namely 1 the authority of law 2 the requirement of public use and 3 the payment of just compensation
These three prerequisites which constitute limitations on the power of eminent domain are said to have been epitomised in 1791 in the last two clauses of the Fifth Amendment to the Constitution of the United States of America
The contention is that article 31 reproduces those three limitations on the power of eminent domain namely that clause 1 announces the necessity for legislative sanction as a pre requisite for the exercise of the power thus protecting all persons against expropriation by the State acting through its executive organ the Government and that  clause 2 reproduces the necessity of a public purpose and payment of compensation
It is concluded that these important limitations on the State s power of eminent domain are designed to protect a person against arbitrary deprivation of his property and they constitute his fundamental right in relation to his property
The proposition thus formulated is certainly attractive and indeed has found favour with my learned colleagues but appears to me to be open to certain objections
I say in all humility that I consider the method of approach and the line of reasoning in support of that proposition entirely fallacious and wrong
The steps in the argument seem to be ithat the power of eminent domain and the limitations thereon as explained by eminent jurists are incorporated in the Fifth Amendment to the Constitution of the United States ii that clauses 1 and 2 of article 31 are concerned with the same topic of 636 eminent domain and iii that therefore clauses 1 and 2 of article 31 must be read as having reproduced the same limitations on the power of eminent domain
This line of reasoning amounts in effect to likening one thing with another thing and then saying that as that other thing means such and such this thing must therefore bear the same meaning a method which has been deprecated by Lord Halsbury in Styles  case1
Further if this line of reasoning were correct or permissible then we might as well have saidas indeed we were asked to say that article 21reproduced the American constitutional limitationsa gainst deprivation of life and personal liberties and that therefore the expression procedure established by law to be found in article 21 meant exactly what the expression dueprocess of law occurring in the Fifth Amendmentdid
This we resolutely and definitely declinedto do in A K Gopalan s case supra
At page 108 of the report of that case Kania C I expressed the view that that line of reasoning was not proper and was misleading
My Lord the present Chief Justice  at page 197 repelled that contention
After quoting the words of Madison about the great and essential rights of the people my Lord concluded at page 199 This has been translated into positive law in Part III of the Indian Constitution and I agree that in construing these provisions the high purpose and spirit of the Preamble as well as the constitutional significance of a Declaration of Fundamental Rights should be borne in mind
This however is not to say that the languageof the provisions should be stretched to square withthis or that constitutional theory in disregard of the cardinal rule of interpretation of any enactment constitutional or other that its spirit no less than its intendment should be collected primarily from the natural meaning of the words used
After noticing the argument of learned counsel for the petitioner Mukherjea J at page 266 et scq found 1  637 It impossible to introduce the American doctrine of due process of law into our article 21
If the language of our articlc 21 could not be stretched to square with the American due process clause so as to give effect to the suggested enlargement of the scope of our fundamental right to life and personal liberties but had to be interpreted by giving the words their ordinary natural meaning I cannot see why the language of article 31 should not bc construed in the usual way so as to give effect to the plain intention our Constitution makers
I say with the utmost humility that the proper method of approach is to adopt the golden rule of construction referred to in the judgment of my Lord quoted above and not to start off with any kind of assumption that our Constitution must be regarded as having reproduced this or that doctrine
Apart from the erroneous line of reasoning referred to above the conclusion arrived at by following that reasoning appears to me to be open to serious objections on merits also
If it were correct to say that the two
clauses 1 and 2 of article 31 deal with the same topic of the State s power of eminent domain which is inherent in its sovereignty then as I pointed out in my judgment in Chiranjitlal s case1 at page 925 clause 1
must be held to be wholly redundant and clause 2 by itself would have sufficed for the necessity of a law is quite clearly implicit in clause 2 itself which alone would have served as a protection against State action through its executive organ the government
Another and more serious objection against reading both the clauses as dealing only with the same topic of eminent domain is as pointed out by me in Chiranjitlals case supra that such construction will place the deprivation of property otherwise than by the taking of possession or acquisition of it outside the pale of all constitutional protection
As I said there and as I shall also do hereafter in detail one can conceive of circumstances where the State in exercise of the State s police power may have to deprive a person of his property without taking possession of it or acquiring it within the meaning of 1  638 article 312
This police power of the State is also one of the powers inherent in the sovereignty of the State
The suggestion that the first two clauses of article 31 should be read as dealing only with eminent domain will if accepted lead us to hold that our Constitution has not dealt with the State s police power to deprive a person of his property and has not provided for us any protection against the State by imposing any limitation on the exercise of that power
The suggested construction will render the enunciation of our fundamental Right to property patently incomplete
It has been urged that the State s police power is recognised and regulated by article 19 clauses 2 to 6 and article 31 5 b
I shall deal with that argument in detail hereafter and show that it is quite untenable
Apart from that argument the result of reading article 31 clauses 1 and 2 together will be to hold that our Constitution has not provided for us any protection against the exercise of the State s police power either by the Legislature or by the executive
Such a conclusion I am not prepared to accept
Accordingly I thus explained what I conceived to be the true scope and effect of clauses 1 and 2 of article 31 in Chiranjitlal s case supra at page 925 namely that clause 1 deals with deprivation of property in exercise of police power and enunciates the restriction which our Constitution makers thought necessary or sufficient to be placed on the exercise of that power namely that such power can be exercised only by authority of law and not by a mere executive fiat and that clause 2 deals with the exercise of the power of eminent domain and places limitations on the exercise of that power
It is these limitations which constitute our fundamental right against the State s power of eminent domain
The language used in article 312 clearly indicates beyond doubt that the power of eminent domain as adopted in our Constitution is concerned with only that kind of deprivation of property which is brought about by the taking of possession or acquisition contemplated by that clause
I again adverted to this matter in The State of Bihar vs Maharajadhiraja 639 Kameshwar Singh of Darbhanga1 
It is said that such a construction of article 311 instead of enunciating any fundamental right of the people at all will on the contrary declare the fundamental right of the Legislature to deprive a person of his property by merely
enacting a law
This appears to me to be a very superficial
criticism which completely overlooks that article 311 as far as it goes does lay down a fundamental right by imposing a limitation at least on the executive power
It is this limitation placed on the executive power that constitutes our fundamental right to property under article311
I see no compelling or cogent reason for changing the views I expressed on this point in my judgments in those two cases
It is necessary at this stage to examine the several other objections that have been taken to the correctness of the interpretation suggested by me
It is said that the State section police power in relation to the citizens  right to freedom is fully recognised in article 19
Clause 1 of that article secures to the citizens of India seven specified rights but clauses 2 to 6 permit the State to make laws imposing reasonable limitations on the exercise of these seven rights as therein mentioned
The argument is that clauses 2 to 6recognise the police power of the State in that they permit it to make laws imposing restrictions on the seven rights of the citizens and that they at the same time regulate that power by placing limitations upon it by requiring that the restrictions which may be imposed must be reasonable
It is then pointed out that the State s police power is further saved by article 315 b and it is concluded that the police power having been recognised and provided for in article 19 and article 315 b there is no necessity to read article 311 as concerned with the State s police power at all
I see no force or validity in the aforesaid objection
I first deal with the objection in so far as it is founded on the recognition of the State s police power in 1 at pp
988 989
article 19
I say that there is no force in this objection for the following reasons a article 191 enumerates seven rights to freedom and guarantees them to the citizens of India
Clauses 2 to 6 of that article recognise and regulate the exercise of police power over those rights by the State through its legislative organ for the State is by those clauses permitted to impose reasonable restrictions by law only
Therefore it follows that article 19 does not give any protection to the citizens against the executive government in respect of even those seven rights
The citizens however have protection against the executive as well as the Legislature under article 21 but that protection covers life and personal liberties only
Where then is the citizen s protection against the exercise of police power by the executive over his property It is nowhere except in article 311 as construed by me
b Article 19 guarantees the seven rights of the citizens only and recognises and regulates the exercise of police power over those rights by the legislative organ of the State
A non citizen is entirely outside that article and consequently he has none of those seven rights and has no protection against the State under that article
He has therefore to fail back upon article 21 and contended that all his personal liberties including the six rights enunciated in article 191a to e and gare protected against the exercise of police power by the State through its executive or legislative limb
But article 21 as already observed only protects him from deprivation of life and personal liberties
Where then is the non citizen s protection against deprivation of his property by the exercise of police power by the executive government
It is no where unless article 311 is read in the way I have suggested
c Finally clauses 2 to 6 of article 19 authorise the State to make laws imposing reasonable restrictions on the citizen s rights under clause 1
It is true that in A K Gopalan s case supra Fazl Ali J in his dissenting judgment took the view that 641 restrictions might cover the case of total deprivation but none of the other members of that Bench accepted that position
Kania CJ said at page 106 Therefore article 19 5 cannot apply to a substantive law depriving a citizen of personal liberty
I am unable to accept the contention that the word deprivation  includes within its scope restriction when interpreting article 21
My Lord the present Chief Justice expressed his views at p 191 in the words following The use of the word restrictions  in the various sub clauses seems to imply in the context that the rights guaranteed by the article are still capable of being exercised and to exclude the idea of incarceration though the words restriction  and deprivation  are sometimes used as interchangeable terms as restriction may reach a point where it may well amount to deprivation
Read as a whole and viewed in its setting among the group of provisions articles 19 22 relating to Right to Freedom  article 19 seems to my mind to presuppose that the citizen to whom the possession of these fundamental fights is secured retails the substratum of personal freedom on which alone the enjoyment of these rights necessarily rests
The contrary view expressed by a Bench of the Allahabad High Court was rejected by my Lord at the end of page 193 with the following remark    their major premise that deprivation of personal liberty was a restriction  within the mean ing of article 19 is in my judgment erroneous 
Mahajan J expressed the same view in the following passage at page 227 in his judgment in that case Preventive detention in substance is a negation the freedom of locomotion guaranteed under article 191d but it cannot be said that it merely restricts it
Mukherjea J said at page 256   and the purpose of article 19 is to indicate the limits within which the State could by legislation 642 impose restrictions on the exercise of these fights by the individuals
The reasonableness or otherwise of such legislation can indeed be determined by the court to the extent laid down in the several clauses of  article 19 though no such review is permissible with regard to laws relating to deprivation oflife and personal liberty
His Lordship concluded thus at page 264 The result is that in my opinion the first contention raised by Mr Nambiar cannot succeed and it must be held that we are not entitled to examine the reasonableness or otherwise of the Preventive Detention Act and see whether it is within the permissible bounds specified in clause 5 of article 19
After discussing the matter at some length at pages 302 305 I concluded on page 306 In my judgment article 19 has no beating on the question of the validity or otherwise of preventive detention and that being so clause 5 which prescribes a test of reasonableness to be defined and applied by the court has no application at all
A suggestion was made that although in AK Gopalan s case supra the word restriction occurring in clauses 2 to 6 could not in its application to sub clauses a to e and g be taken as extending to deprivation  there is no compelling reason to hold that the word restriction occurring in clause 5 may not in its application to sub clause f cover derivation There is no substance in this contention
Clause 5 covers sub clauses d e and f and surely one and the same word restriction used in one and the same clause 5 cannot have one meaning in its application to sub clauses d and e and a different meaning and connotation in its application to subclause f
Further the reasons why in AK Gopalan s case supra that word was given a narrower meaning in its application to sub clauses a to e and g apply mutatis mutandis in its application to sub clause f read  in correlation to article 31
It is therefore clear from the decision of this court in AK Gopalan s case supra that article 19 does not give any protection 643 against deprivation of property as distinct from mere restriction imposed on the right to property
For protection against deprivation of life and personal liberties including the several rights to freedom enunciated in sub clauses a to e and g of article 19 by the exercise of police power by the legislative or the executive organ of the State the citizen as well as the non citizen will have to look to article 21
For protection against the deprivation of property by legislative or executive State action both the citizen and the non citizen will have to rely on article 31
If as I shall show presently clause 5 b were inserted in article 31 ex abundanti cautela and not as a substantive provision defining the ambit or scope of the police power or formulating any limitation on that power then the protection against deprivation of property will have to be derived from only clauses 1 and 2
If in such circumstances both those clauses are read in the way suggested by learned counsel for the respondent Subodh Gopal Bose namely as dealing only with the topic of the State s power of eminent domain then there will remain no escape from the conclusion that in the Republic of India neither a citizen nor a non citizen has any constitutional protection against the exercise of police power either by the legislative or executive organ of the State
On the other hand if the construction suggested by me be adopted everybody citizen or non citizen will have under article 31 2 full protection against the exercise the power of eminent domain by both the executive as well as Legislature and in addition to that will also have protection against the exercise of police power over property by the executive
The preservation of this protection alone even if some may regard it as very meagre is to my mind a sufficiently cogent reason for adopting the construction suggested by me in preference to the other construction which if adopted will not save even this meagre protection
The next objection to the conclusion arrived at by me is that police power of depriving a person of his property is amply provided for in article 31 5 b and it is not necessary to read it into article 31 1
644 A perusal of clause 5 of article 31 which 1 have already quoted will at once show that that clause excepts certain laws from the operation of clause 2 only
It will also appear that the exception covers under sub clause b only certain kinds of future laws
Item i under sub clause b comprises future laws imposing or levying any tax or penalty
Item ii under that sub clause saves future laws for the promotion public health or the prevention of danger to life or property
It is said that this clause 5biisaves laws to be made in exercise of the State s police power
The argument is that the State s police power of imposing restriction on the citizens  right to acquire hold and dispose of property is recognised and controlled by clause 5 of article 19 and that when it becomes necessary for the police power to extend beyond restrictions and to inflict deprivation property it can do so by the kind of law which is by clause 5b ii of article 31 saved from the operation of clause 2
It is pointed out that in the matter of imposition of restrictions on the exercise of the right to acquire hold and dispose of property the only limitation on the police power is that the restrictions to be imposed by law must be reasonable as indicated in article 19 5 but that in the matter of deprivation of property by authority of law under article 31 the limitation on the police power is more stringent namely that such law may be made only for the promotion of public health or the prevention of danger to life or property as mentioned in clause 5 b ii and for no other purpose
The argument thus formulated is attractive for its simplicity and has the appearance of plausibility but cannot stand the test of close scrutiny
I say so far the following reasons  i Every student of Constitutional law is well aware that constitutional lawyers classify the State  sovereign power into three categories namely the power of taxation the power of eminent domain and the police power
These are distinct categories of sovereign powers with different connotations subserving different needs of the society and the State
If both 645 clauses 1 and 2 of article 31 deal with and impose restrictions only on the State s power of eminent domain then there was no real necessity for exempting by article 31 5bthe taxation power or the police power from the operation of the power of eminent domain for ex hypothesis the two first mentioned powers being distinct from the power of eminent domain did not and could not fail within the last mentioned power and therefore needed no exemption
Even a casual student of Constitutional law knows that money is one of the kinds of property which it is said cannot be taken in exercise of the State s power of eminent domain and that being so there could be no necessity for exempting laws imposing taxes from the operation of article 31 2 which embodies only the doctrine of eminent domain
Further the police power like the pOwer of taxation and the power of eminent domain is an attribute of sovereignty itself
It is as Professor Willis calls it the offspring of political necessity
This coercive legal capacity is inherent in every sovereign and requires no specific reservation
Indeed in the Constitution of the United States there
is no specific reservation of the police power of the State
There was therefore no necessity for expressly saving the police power of our State by a constitutional provision
Why then was clause 5 b ii inserted in article 31 at all  The answer will become obvious if it is remembered that it is extremely difficult to define precisely the ambit and scope of the State s police power over or in relation to private property and some of the instances and forms of the exercise of such police power over or in relation to property may superficially resemble the exercise of the power of eminent domain
The conclusion therefore becomes irresistible that although clause 5bii was not strictly speaking necessary for saving the police power nevertheless our Constitution makers out of abundant caution and with a view to avoid any possible argument thought fit to insert sub clause 5 b iiin article 31
It is impossible to hold that the entire police power of the State to deprive a person of his property is contained in that sub clause
646 ii According to the argument article 31 5b saves the power of  the State to make certain laws in exercise of its power of taxation or its police power
It will be noticed that it does not give us any protection against the Legislature by laying down any test for the validity of those laws
The acceptance of the suggested construction will mean that laws thus saved may be as archaic offensive and unreasonable as the legislature may choose to make them so long as they relate to the subjects referred to in that sub clause
If our sense of the sanctity of private property is not shocked at the prospect of leaving our property at the unfettered mercy of the Legislature in respect of laws of the kind specified in clause 5 b ii I do not see why the construction suggested by me should be rejected only on the ground that it will give a carte blanche to the Legislature to make any law it pleases for the deprivation of property in exercise of police power
iii Article 31 5 b gives us no protection against the executive with respect to the exercise of these powers
Take article 31 5bifirst
That it was
not intended to be a protection against the executive in the exercise of the power of taxation cannot for a moment be doubted for if it were so intended there was no necessity then for inserting into the Constitution article 265 providing that no taxes
shall be levied or collected except by authority of law which clearly means that the executive cannot on its own authority levy or collect any tax
It is therefore quite plain that article 31 5biwas not designed to give any protection against the executive in the matter of the exercise of the power of taxation and that our Constitution makers precisely for that reason considered that it was necessary that such protection should be given expressly and therefore inserted article 265
Likewise article 31 5bii saves certain laws and does not in terms give us any protection against the exercise of police power by the executive
Where then is our protection against deprivation of property by the exercise of police power by the executive Government It is nowhere to be 647 found in our Constitution except in article 311
This to my mind clearly indicates that article 311was designed to formulate a fundamental right against deprivation of property by the exercise  of police power by the executive arm of the State
The protection against the exercise of the power of eminent domain by the executive government is to be found in the requirement of a law which alone may authorise the taking of possession or the acquisition of the property which as will be explained later is implicit in article 312 itself and it is therefore not necessary to have recourse to article 311 to secure that protection
iv To say that the entire police power of the State to deprive a person of his property is to be found only in article 315bii will be to confine the exercise of that power by the Legislature within a very narrow and inelastic limit namely only for the promotion of public health or the prevention of danger to life or property
On the assumption that article 31 5bii is concerned with saving the police power it may cover the laws authorising the destruction of rotten or adulterated foodstuff or the pulling down of a dangerous dilapidated building or the demolition a building to prevent fire from spreading
But it is quite easy to contemplate laws which do not fall within article 31 5 b ii but are nevertheless made mistakably in exercise of the State s police power
Consider the case of a law authorising the seizure and destruction of say obscene pictures or blasphemous literature
Such law is clearly necessary for the promotion or protection of public morality
Nobody can for a moment think of contending that such law will be void if it does not provide for compensation and yet that will be the result if we are to accept the suggested construction for such a law made for protecting public morality is obviously not covered by article 31 5bii and will according to such construction be hit by article 312
A construction which leads to the astounding result of compelling the State to buy up obscene pictures andblasphemous literature if it desires to preserve public morality cannot merit serious consideration and must be discarded at once
Take 648 the case of a law providing for the compulsory contribution by all banks based upon the average daily deposits for the purpose of creating a guarantee fund to secure the full repayment of deposits to all depositors in case any such bank becomes insolvent and i ordered to be wound up
This law quite clearly deprives the banks of property in the shape of their respective contributions and it is not covered by clause 5 b i as it cannot be said to impose a tax or a penalty and does not fail within 5 b ii either for it is not a law for the promotion of public health or for the prevention of danger to life or property
This law being thus outside clause 5bcannot according to the suggested construction be supported as an instance of exercise of police power for ex hypothesis the entire police power with regard to deprivation of property is contained in clause 5band consequently the law I have mentioned will not be protected from the operation of article 312 and must be void for not providing any compensation
Yet in the United States where so much is made of the sanctity of private property and from where we are prone to draw inspiration in these matters such a law has been upheld as constitutional as an instance of a valid exercise of the State s police power which extends to all the great public needs
 See Noble State Bank vs Haskell1
Again suppose there is a labour dispute between say a tramway company and its workers and the running of the tram cars is stopped
A law which in such circumstances authorises the State to take possession of the tram depot and run the tram cars by the military or other personnel during such emergency for the convenience of the travelling public is not within clause 5bii and on this construction will be void if it does not provide for compensation to the tramway company
On the suggested construction pushed to its logical conclusion it will not be possible in future to impose any social control on the profiteers or blackmarketeers for a law controlling and fixing prices of essential supplies will always deprive them of property of the value to be measured by the difference between 1  649 the blackmarket price and the controlled price
The suggested construction may even make it difficult to support any future law containing provisions similar to those in the procedure codes or other laws not strictly falling within the clause 5biibut authorising the seizure of books documents or other property or the appointment of a receiver or sequestrator to take possession of property for in all such cases there will be a deprivation of property
It is unnecessary to multiply instances
The several instances I have just given above appear to me to furnish ample justification for rejecting a construction which may make it impossible for the State to undertake beneficial legislation to promote social interest and may invalidate laws of the kind I have mentioned
v Article 31 5 b ii saves from the operation of clause 2 laws to be made in future for the promotion of public health or the prevention of danger to life or property
Obviously it was contemplated that the laws thus saved would involve the taking of possession or acquisition of private property for otherwise there would be no necessity for the exemption at all
Take the case of a law authorising the opening out of a congested part of a town and the acquisition of land for the laying out of a public park for affording fresh air and other health amenities to the public
Consider the case of a law authorising the clearing up of slums and the closing down of putrid and unhealthy surface drains and acquisition of land for broadening the lanes so as to lay underground sewers thereunder
One may also refer to a law authorising the acquisition of land for the erection of a hospital for patients suffering from infectious diseases eg plague small pox and cholera
All these laws will come under the heading of promotion of public health or the prevention of danger to life
According to the suggested construction the acquisition of property authorised by each of these laws will be exempt from payment of compensation to the owner for these laws are by clause 5b ii exempted from article 312
And yet acquisition of land for such public purposes is precisely the kind of acquisition which is always made on payment of 5 95 section
CI159 650 compensation under the Land Acquisition Act 1894
A construction which takes a law made really and essentially in exercise of the power of eminent domain out of article 312 cannot readily be accepted as cogent or correct
vi The complexities of modern States constantly give rise to conflicts between opposing social interest and it is easy to visualise circumstances when much wider social control legislation than is envisaged or recognised in the laws referred to in article 315b will be imperatively necessary
Indeed as Professor Willoughby states in his Constitutional Law of the United States Vol
III p 1774 the police power knows no definite limit
It extends to every possible phase of what the Courts deem to be the public welfare
In the language used by Holmes J in Noble State Bank vs Haskell supra it may be said in a general way that the police power extends to all the great public needs
In Eubank vs Richmond1 the Court said of the police power It extends not only to regulation which promote the public health morals and safety but to those which promote the public convenience or the general prosperity 
It is the most essential of powers at times most insistent and always one of the least limitable of the powers of government And all the more will such wide police powers be required in a State which  like our own aims at being a welfare State governed by the directive principles of State policy such as are to be found in Chapter IV of our Constitution
To so confine the State s police power as suggested by learned advocate for the respondent will be to bring about social stagnation and thereby to retard the progress of our State
There is nothing in the language of our Constitution which compels us to adopt such a construction
In my judgment a construction which is calculated to produce the undesirable result I have mentioned must I feel sure be rejected
1  651 The last objection to reading article311 as the enunciation of the fundamental right against deprivation of property by the exercise of police power and reading article 312as laying down limitations on the State s power of eminent domain is that so read article 31 will in reality afford no effective protection at all for the State will always exercise its police power under article 31 1 and deprive a person of his property without any compensation by the simple device of making a law and will never exercise its power of eminent domain under article 312
Where then it is asked is our protection against the State with respect to our property  The objection thus formulated overlooks the difference between the nature and purpose of the two powers which I shall presently discuss and explain and is not otherwise well rounded for the following  reasons 1 It is incorrect to say that article 31 1 as construed by me gives no protection at all
It certainly gives protection against deprivation of property by executive fiat just as did that part of the famous 29th Clause of the Magna Charta which proclaimed that no free person should be dispossessed of any free tenement of his except by the law of the land
As pointed out by Mathews J in joseph Hurtado vs People of California1 by the 29th Clause of the Magna Charta the English Barons were not providing for security against their own body or in favour of the commons by limiting the power of Parliament but were protecting themselves against oppression and usurpation of the King s prerogatives
In other words that clause of the Magna Charta was not designed as a protection against Parliament at all and indeed did not purport to formulate any limitation on the Sate s power of eminent domain but was only intended to be a protection against the exercise of police power by the highest executive the King
There is unmistakably a familiar ring in the language of our article 311 echoing the sound of the language of the 29th Clause of that great charter which the English Barons had wrested from their King
The purpose and function 1 1883 10 Ug
516 at p 531 652 of our article 311 as I apprehend it are the same as those of the Magna Charta
Our Constitution has given us ample protection against the executive in relation to all the three sovereign powers of the State
Thus the executive cannot on its own authority and without the sanction of a law deprive any person of his life or personal liberty by reason of article 21 or of his property because of article 311 or take possession of or acquire private property under article 31 2 or impose any tax under article 265 Our Constitution makers evidently considered the protection against deprivation of property in exercise of police power or of the power of eminent domain by the executive to be of greater importance than the protection against deprivation of property brought about by the exercise of the power of taxation by the executive for they found a place for the first mentioned protection in article 311 and 2 set out in Part III dealing with fundamental rights while they placed the last mentioned protection in article 265 to be found in Part XII dealing with finance etc
So with regard to all the three sovereign powers we have complete protection against the executive organ of the State
2 It is said we have no protection against legislative tyranny in respect of our property
This complaint obviously is not well rounded for our Constitution has given us some measure of protection against the legislature in respect of our property
Thus if the State exercises its power of eminent domain by taking possession of or acquiring private property of any person it must do so upon the three conditions prescribed by article 31 2
There is no shorter cut in such a case
Apart from this the citizens of India have further protection against the legislature in respect of their right to acquire hold and dispose of property
This right is guaranteed to them by article 191f
The Constitution however recognises by clause 5 that the State has police power to restrict the right in the interest of the general public or for the protection of the interests of any Scheduled tribe but prescribes a limitation on this police power by requiring that the restrictions to be imposed by 653 law must be reasonable
This requirement constitutes the citizens  fundamental right against the exercise of police power by the legislature in respect of his fight under article 19 1fwhilst they are in possession and enjoyment of this right
3 It is then urged that our Constitution according to my construction of it does not give us any protection against the legislature in the matter of deprivation of property in exercise of the State s police power
This is no ground for rejecting my construction for on the construction suggested to the contrary the position is exactly the same for article 31 5 b only saves certain laws from article 312 that is to say recognises the police power but does not formulate any test for determining the validity of those laws which may be as unreasonable as the legislature may make them
Apart from this what I ask is our protection against the legislature in the matter of deprivation of property by the exercise of the power of taxation  None
whatever
By exercising its power of taxation by law the State may deprive uS citizen or non citizen of almost sixteen annas in the rupee of our income
What I next ask is the protection which our Constitution gives to any person against the legislature in the matter of deprivation even of life or personal liberty  None except the requirement of article 21 namely a procedure to be established by the legislature itself and a skeleton procedure prescribed in article 22
In AK Gopalan s case supra notwithstanding the reference made to the epigrammatic observation of Bronson J in Taylor vs Porte1 to the effect that it sounded very much like the Constitution speaking to the legislature that the latter could not infringe our right unless it chose to do so the majority of this Court declined to question the wisdom and policy of the Constitution or to stretch the language of article 21 so as to square it with its own notions of what the ambit of the right should be but felt bound to give effect to the plain words of the Constitution
See Kania CJ at page 11 Mukherjea J at page 277 and my judgment at page 321
If 1 4 Hill 140
654 therefore in the matter of deprivation of property by the exercise of the State s power of taxation our Constitution has only given us protection by article 265 against the executive but none whatever against the legislature and if in the matter of deprivation of our life and personal liberty our Constitution has given us no better protection against the legislature than the requirement of a procedure to be established by the legislature itself and the skeleton procedure prescribed by article 22 and seeking that our Constitution has by article 312 given us protection against the legislature at least with respect to the exercise of the power of eminent domain what is there to complain of if in the matter 015 deprivation of property by the exercise of the State s police power our Constitution has by article 31 1 given us protection only against the executive but none against the legislature  What is abnormal if our Constitution has trusted the legislature as the people of Great Britain have trusted their Parliament  Right to life and personal liberty and the right to private property still exist in Great Britain in spite of the supremacy of Parliament
Why should we assume or apprehend that our Parliament or State legislatures should act like mad men and deprive us of our property without any rhyme or reason  After all our executive government is responsible to the legislature and the legislature is answerable to the people
Even if the legislature indulges in occasional vagaries we have to put up with it for the time being
That is the price we must pay for democracy
But the apprehension of such vagaries can be no justification for stretching the language of the Constitution to bring it into line with our notion of what an ideal Constitution should be
To do so is not to interpret the Constitution but to make a new Constitution by unmaking the one which the people of India have given to themselves
That I apprehend is not the function of the court
If the Constitution properly construed according to the cardinal rules of interpretation appears to some to disclose any defect or lacuna the appeal must be to the authority competent to amend the Constitution and not to the court
655 4 Further there may be quite cogent and compelling reason why our Constitution does not provide for any protection against the legislature in the matter of deprivation of property otherwise than by taking of possession or acquisition of it
It is futile to cling to our notions of absolute sanctity of individual liberty or private property and to wishfully think that our Constitution makers have enshrined m our Constitution the notions of individual liberty and private property that prevailed in the 16th century when Hugo Grotius flourished or in the 18th century when Blackstone wrote his Commentaries and when the Federal Constitution of the United States of America was framed
We must reconcile ourselves to the plain truth that emphasis has now unmistakably shifted from the individual to the community
We cannot overlook that the avowed purpose of our Constitution is to set up a welfare State by subordinating the social interest in individual liberty or property to the larger social interest in the rights of the community
As already observed the police power of the State is the most essential of powers at times most insistent and always one of the least limitable powers of the government
Social interests are ever expanding and are too numerous to enumerate or even to anticipate and therefore it is not possible to circumscribe the limits of social control to be exercised by the State or adopt a construction which will confine it within the narrow limits of article 31 5 b ii
It must be left to the State to decide when and how and to what extent it should exercise this social control
Our Constitution has not thought fit to leave the responsibility of depriving a person of his property whether it be in exercise of the power of eminent domain or of the police power to the will or caprice of the executive but has left it to that of the legislature
In the matter of deprivation of property otherwise than by the taking of possession or by the acquisition of it within the meaning of article 31 2 our Constitution has trusted our legislature and has not thought fit to impose any limitation on the legislature s exercise of the State s police power over 656 private property
Our protection against legislative tyranny if any lies in ultimate analysis in a free and intelligent public opinion which must eventually assert itself
Having dealt with the correlation between clauses 1 and 2 of article 31 as I apprehend it and having considered and rejected the objections to the conclusions I have arrived at I proceed now to examine and analyse the provisions of clause 2
As I explained in my judgment in the Darbhanga case supra at pp
989 990 article 31 2 has imposed three conditions on the exercise of the State s power of eminent domain over private property and those limitations constitute the protection granted tO the owner of the property as his fundamental right
It insists that this sovereign power may be exercised only if it is authorised by a law
It is therefore clear that the executive limb of the State cannot  exercise this power on its own authority and without the sanction of law
The taking of possession or acquisition must be for a public purpose which implies that this power cannot be exercised except for implementing a public purpose
It cannot be exercised for a private purpose
What is a public purpose has been elaborately dealt with in that case and need not be discussed over again here
Finally the law authorising the taking of possession or acquisition of the property must provide for compensation
Compensation therefore is payable only when the State takes possession of or acquires private property
What then is the meaning of the words taken possession of or acquired and their grammatical variations as used in article 31 2  It is pointed out that the last clause of the Fifth Amendment which deals with eminent domain uses the word taken and it is suggested that as our article 31 2 deals with the same topic of eminent domain it will be reasonable to hold that our article 31 2 reproduces the American constitutional limitations and that therefore the expression taken possession of or acquired used in our article 31 2 657 must be read as having the same meaning which has been attributed  by the Judges of the Supreme Court of the United States to the word taken occurring in their Fifth Amendment
I am quite unable to accept this construction and the line of reasoning on which it is founded
In the first place I deprecate the line of reasoning which starts by likening one thing with another and then ends by imputing the qualities of the other thing to the first mentioned thing
The cardinal rule of interpretation is to ascertain the meaning and effect of an enactment constitutional or otherwise from the words used therein
If the words used have acquired a technical or special meaning that meaning must be given to them
To say that the expression taken possession of or acquired must be read as taken and given
the same wide meaning as the American courts have given to the word taken is to ignore the entire historical background of the law relating to compulsory acquisition of private property by the State
Under the English law on which more or less our modern laws are rounded the term acquisition has a special meaning
It connotes the idea of transfer of title voluntary or involuntary
When the acquisition by the State is effected by agreement after negotiation there is a regular conveyance transferring the title from the vendor to the State
Even when the acquisition by the State is effected by the coercive process of exercising its sovereign power the idea of purchase is nevertheless present for there is vesting of the property in the State by operation of law
Acquisition of private property by the State under the English law therefore connotes the concept of a purchase voluntary or involuntary and involves a transfer of the entire title from the owner to the State or a third party for whom the State acquires the property
In India the compulsory acquisition of private property was first introduced by Bengal Regulation I of 1824
Since then we have had no less than seven Acts dealing with the compulsory acquisition of private property by the State namely Act I of 1850 Act XLII of 1850 Act XX of 1852 Act I of 658 1854 Act
XXII of 1863 Act X of 1870 and lastly the present Land Acquisition Act Act I of 1894
Each of these Acts provides for the vesting of the acquired property in the State
This means that the owner is divested and his title passes by operation of law to the State
The word acquisition therefore has become as it were a word of art having a long accepted legislative meaning implying the transfer of title
It will be quite wrong according to the correct principles of interpretation not to give the word acquisition and its grammatical variations this technical and special meaning I therefore respectfully agree with what Mukherjea J said in Chiranjit Lal s case supra at page 902 namely It cannot be disputed that acquisition means and implies the acquiring of the entire title of the expropriated owner whatever the nature or extent of that title might be
The entire bundle of rights which were vested in the original holder would pass on acquisition to the acquirer leaving nothing in the former
In taking possession on the other hand the title to the property admittedly remains in the original holder though he is excluded from possession or enjoyment of the property
Article 31 2 of the Constitution itself makes a clear distinction between acquisition of property and taking possession of it for a public purpose though it places both of them on the same footing in the sense that a legislation authorising either of these acts must make provision for payment of compensation to the displaced or expropriated  holder of the property
In the context in which the word acquisition appears in article 31 2 it can only mean and refer to acquisition of the entire interest of the previous holder by transfer of title and   It  follows from what has been stated above that the word acquired used in article 31 2 must be given the special meaning which that word has acquired and cannot be read as synonymous with taken as used in the Fifth Amendment to the Constitution of the United States
659 It is then suggested that any rate the expression taken possession of should be read in the sense in which the word taken is understood in the American law
But even in America the word taken has not always been interpreted in the same way
The old view was that in order to be a taken there must be either an actual taking of physical property or a physical occupancy of some physical property
This view was however regarded as too narrow and mechanical
It was said that the ownership of a thing tangible or intangible was made up of the rights powers privileges and immunities concerning that thing and that the property was not the thing itself but consisted of these rights powers privileges and immunities
It was therefore concluded that there must be a taking whenever there was any injury to property otherwise than by the police power or taxation which if done by a private individual would be actionable as a tort in other words that it must be held that there would be a taking whenever any of the rights powers privileges or immunities making up the ownership was taken from the owner
Indeed this wide interpretation of the word taken was facilitated by the fact that in order to avoid the old narrow view of the meaning of that word many of the States so amended their Constitutions as to require compensation for property damaged injured or destroyed for a public use
See Professor Willis  Constitutional Law pp 820 821
Our Constitution makers were well aware of the very wide meaning eventually given to the word taken by the American courts
They did not however use the word taken in article 31 2 which they would surely have done if they intended to reproduce the wide American concept of taking
Our Constitution makers on the contrary deliberately chose to adopt the narrower view point and accordingly used the words taken possession of in order to make it quite clear that they required compensation to be paid only when there was an actual taking of the property out of the possession of the owner or possessor into the possession of the State or its nominee
Of course the manner of 660 taking possession must depend on the nature of the property itself
I repeat with humility that it is not permissible to ignore the historical background and the actual words used in our Constitution
It is finally said that both clauses 1and 2of article 31deal with the topic of eminent domain and thereforethe expression taken possession of or acquiredoccurring in clause 2has the same meaning which the word deprived used in clause 1 has In other words both the clauses are concerned with deprivation of property and there is no reason to think that the expression taken possession of or acquired was usedin clause 2 to indicate any particular kind or shadeof deprivation
The Obvious retort that at once comes to one s mind is that if it were intended by our Constitution makers to convey the same general idea of deprivation of property by whatever means or mode it was brought about why did they use the word deprived in clause 1 and why did they use in clause 2 a different expression which as commonly used and understood connotes a much narrower meaning  It would have been quite easy to frame clause 2 by using the word deprived instead of the expression taken possession of oracquired
As our Constitution makers used different expressions in the two clauses it must be held that they had done so for a very definite purpose and that purpose could be nothing else but to provide for compensation for only a particular kind of deprivation specifically mentioned and not for any and every kind of deprivation
In this connection reference may be made to Entry 33 in List I Entry 36 in List II and Entry 42 in List III of the Seventh Schedule
The words used in those entries are acquisition or requisitioning ortheir grammatical variations
The legislative powerbeing confined only to acquisition or requisitioningit will not be unreasonable to hold that taking of possession referred to in article 31 2 is in the nature of requisitioning
In section 299 2 of the Government of India Act the words taking of possession did not occur nor did they occur in any of the legislative lists in the Seventh Schedule to that Act but they have 661 been introduced in article 31 2 and in the three entries mentioned above the word requisitioning has been added after the word acquisition
If taken possession of or acquired occurring in article 31 2 be given a meaning wider than what is meant by acquired or requisitioned or their variations used in the entries then it will amount to saying that article 31 2 even contemplates a law with the respect to matters which are beyond the legislative powers conferred on Parliament and the State Legislatures for they can only make a law with respect to acquisition or requisitioning
To counter this reasoning it is pointed out that Parliament under the Union List has the residuary power of legislation and therefore there is no difficulty in giving a wider meaning to the expression taken possession of or acquired
It will then amount to giving one and the same expression different meanings
Thus in its application to a law made by the State Legislature taken possession of or acquired must perforce mean requisitioned or acquired whereas in its application to a law made by Parliament it will have a much wider meaning
This is opposed to the cardinal rules interpretation
Therefore taken possession of or acquired should be read as indicative of the concept of requisition or acquisition
A further question however arises at this stage and it may be now considered
Does every taking of a thing into the custody of the State or its nominee necessarily mean the taking of possession of that thing within the meaning of article 31 2 so as to call for compensation  The exercise of police power in relation to property may conceivably result in the extinction or destruction of the property or in the State taking the property in its control
Take the case of the law authorising the municipal bailiff to seize rotten vegetables or adulterated foodstuffs and destroy them or to enter upon the property of a private owner to pull down the dilapidated structure Consider the law authorising the men of the fire brigade to go upon the property of a private owner and demolish it to prevent the fire from spreading to the houses beyond or on the 662 other side of that house
Take the case of the law authorising the seizure and destruction of property for the protection of public morality
Although in none of the above cases there is any acquisition of property involving a transfer of title there is in each of the above cases a taking of possession and destruction of property by the State by authority of law and yet nobody will say that any of the above laws authorise the taking of possession of the property within the meaning of article 31 2 so that if such law does not provide for compensation the law will be unconstitutional and void
Take the case of the Court of Wards Act
It is a law which authorises the State to take possession of the estate of a disqualified proprietor and to manage it for him
The State only manages the estate on behalf and for the benefit of the disqualified proprietor
The disqualified proprietor does not appoint the State or any State official to manage his estate and he cannot dismiss or discharge the manager appointed by the State
The possession of the manager can hardly in such a situation be described as the possession of the disqualified proprietor
The disqualified proprietor is therefore in a sense deprived of the possession of his estate and the State takes the estates m its possession
The same thing may be said of the Lunacy Act
There is no transfer of title to the State and therefore there is no acquisition of property by the State
This law however takes the property out of the possession of the owner who is adjudged a lunatic  But nobody will say that the Court of Wards Act or the Lunacy Act calls for compensation
The learned Attorney General has also drawn our attention to statutes namely Act XLVII of 1950 The Insurance Amendment Act 1950 passed on the 20th May 1950 and which has added several sections to the  Act LI of 1951 Railway Companies Emergency Provisions Act 1951 passed on the 14th September 1951 and Act LXV of 1951 Industries Development and Regulation Act 1951 enacted on the 30th October 1951 in support of his contention
He points out that each of those laws is strictly Speaking outside article 31 5 b and that the 663 result of our holding that the taking of possession authorised by those Acts fails within article 31 2 so as to call for compensation will be to prevent imposition of social control so urgently necessary for the protection of the larger interests of the society
His argument is that the taking of possession authorised by none of these three Acts fails within article 31 2and only illustrates the exercise of the State s police power
As all the three Acts were passed after the Constitution came into force and as they may be challenged in future an argument rounded on them will really be begging the question in debate before us
I therefore prefer just to note the Attorney General s contention and pass on and not to base my decision on consideration of any of those Acts
Confining myself then to the illustrations given by me I think it is fairly clear from the foregoing discussion that none of the laws referred to above by me authorise any acquisition of property in the sense explained above and although each of them does authorise a sort of taking of possession of the property yet nobody can contend that the taking of possession so authorised by them fails within article 31 2
In other words the taking of possession authorised by those laws does not amount to the exercise of the power of eminent domain but is the result of the exercise of police power
It follows therefore that every taking of possession does not fail within article 31 2
What then is the test for determining whether a taking of possession authorised by a particular law is a taking of possession in exercise of the power of eminent domain or is a taking of possession in exercise of the State s police power
I have already referred to the nature of the State s police power and quoted from some American decisions showing that the State s police power extends not only to regulations which promote public health morals and safety but to those which promote the public convenience or the general prosperity
In its application to private property it in some measure resembles the exercise of the power of eminent domain
Thus the police power is exercised in the interest of the community and the power 664 of eminent domain is exercised to implement a public  purpose and in both cases there is a taking of possession of private property
There is however a marked distinction between the exercise of these two sovereign powers
According to Professor Willis at page 717 eminent domain takes property for use by the public or for the benefit of the public while the police power prevents people from so using their own property as to injure others
The fundamental principle which is held to justify the exercise of police power is that no one shall use his property or exercise any of his legal rights as injuriously to interfere with or affect the property or other legal rights of others
See Willoughby Vol
Ill p 1775
The primary purpose of police power is protection or prevention that persons may be restrained from so exercising their private rights of property contract or conduct as to infringe the equal rights of others or to prejudice the interests of the community
Willoughby Vol
III p 1783
When the State finds that a certain public purpose needs fulfillment and then in order to implement that public purpose the State takes possession of private property on its own account after acquiring it or even without acquiring it and having taken possession of the property the State itself uses or utilises the property or makes it over to a third party to do so for implementing that public purpose which the State has taken upon  itself to serve and for which the property was taken possession of or acquired the State is said to have exercised its power of eminent domain
This power can only be exercised under a and that law must provide for compensation
The point to note is that in such a case the public purpose is one which the State has set out to fulfil as its own obligation and the State takes possession on its own account to discharge its own obligation
In police power the State destroys or extinguishes or takes possession of property in order to prevent the owner from indulging in anti social activities or otherwise inflicting injury upon the legitimate interests of other members of the community either by using his property in a manner he should not do or by omitting to use it in a manner 665 he should do
In such a case the State steps in and destroys or extinguishes only to prevent an injury to social interest or takes possession and assumes the superintendence of the property not on its own account for implementing its own public purpose but for protecting the interests of the community
It is easy to perceivethough somewhat difficult to express the distinction between the two kinds of taking of possession which undoubtedly exists
In view of the wide sweep of the State s police power it is neither desirable nor possible to lay down a fixed general test for determining whether the taking of possession authorised by any particular law fails into one category or the other
Without therefore attempting any such general enunciation of any inflexible rule it is possible to say broadly that the aim purpose and the effect of the two kinds of taking of possession are different and that in each case the provisions of the particular law in question will have to be carefully scrutinised in order to determine in which category falls the taking of possession authorised by such law
A consideration of the ultimate aim the immediate purpose and the mode and manner of the taking of possession and the duration for which such possession is taken the effect of it on the rights of the person dispossessed and other such like elements must all determine the judicial verdict
The task is difficult and onerous but the court will have to hold the scale even between the social control and individual rights and determine whether in the light of the constitutional limitation the operation of the law is confined to the legitimate sphere of the State s police power or whether it has overstepped its limits and entered into the field of eminent domain
It is only in this way that the Court serves and upholds the Constitution by reconciling the conflicting social interests
In the light of the foregoing discussions and the conclusions reached by me I now proceed to examine the contention
that the impugned section 7 of the amending Act VII of 1950 is unconstitutional in that it infringes Subodh Gopal Bose s fundamental right to property guaranteed by article 31
The argument is 6 95 SC India59 666 that having purchased the entire Touzine at a revenue sale the respondent Subodh Gopal Bose had under the old section 37 of the Act of 1859 acquired the valuable right to annul the under tenures and to eject the under tenants and that he had actually obtained a decree for ejectment but that he had been deprived of those vested rights by the operation of section 7 of the amending Act which in effect gave retrospective operation to the new section 37
Assuming that the right to annul under tenures and to eject under tenants and the decree for ejectment come within the term property as used in article 312 as to which I have considerable doubts the question at once arises whether they have been taken possession of or acquired under the impugned Act
The Touzi still remains the property of the respondent Subodh Gopal Bose
He can realise rents and exercise all acts of ownership except that he cannot exercise the right to annul the under tenures or eject any under tenants or execute the decree he has obtained
But have these last mentioned rights been taken possession of or acquired by the State within the meaning of article 312  There is no doubt that the State has not acquired these rights in the sense I have explained for there has been no transfer by agreement or by operation of law of those rights from the respondent Subodh Gopal Bose to the State or anybody else
The impugned law has not vested those fights in the State or anybody else and does not authorise the State or anybody else to exercise these rights
Referring to the position of the shareholders under the Sholapur Spinning and Weaving Company Emergency Provision Act 1950 Mukherjea J said in his judgment in Chiranjitlal s case supra at pp
905 906  The State has not usurped the shareholders  right to vote or vested it in any other authority
The State appoints directors of its own choice but that it does not in exercise of the shareholders  right to vote but in exercise of the powers vested in it by the impugned Act
Thus there has been no dispossession of the shareholders from their right of voting at all
The same reasoning applies to the other fights of the 667 shareholders spoken of above namely their right of passing resolutions and of presenting winding up petitions
These rights have been restricted undoubtedly and may not be capable of being exercised to the fullest extent as long as the management by the State continues
Whether the restrictions are such as would bring the case within the mischief of article 191f of the Constitution I will examine presently but I have no hesitation in holding that they do not amount to dispossession of the shareholders from these rights in the sense that the rights have been usurped by other people who are exercising them in place of the displaced shareholders
 The above reasoning applies mutatis mutandis to the case now before us
The truth is that these rights have not been taken possession of or acquired at all in exercise of the power of eminent domain but have been extinguished or destroyed in exercise of the State s police power to prevent public mischief and anti social activities referred to in the objects and reasons appended to the bill which eventually became the impugned law
In the premises the respondent Subodh Gopal Bose has been deprived of his property if these rights can be properly so described by authority of law and the case fails within article 311 and not within article 312 at all
If the impugned section is regarded as imposing a restriction on the right of Subodh Gopal Bose to hold property then for reasons I have mentioned I hold such restrictions in the circumstances of this case to be quite reasonable and permissible under article 19 5
If the impugned section operates as an extinguishment of his right to property treating the right to annul under tenures and to eject under tenants and to execute the decree for ejectment as property then in my judgment these rights of the respondent Subodh Gopal Bose have not been taken possession of or acquired by the State within the meaning of article 312 but he has been deprived of his property by authority of law under article 311 which calls for no compensation
In the premises the plea of unconstitutionality cannot prevail and must be rejected
I 668 would therefore allow the appeal with costs both here  and in the High Court
GHULAM HASAN J I concur with my Lord the Chief Justice that the view of the High Court Calcutta that section 7 of the West Bengal Revenue Sales West Bengal Amendment Act 1950 is void as abridging the fundamental rights of the first respondent under article 191fand 5 of the Constitution cannot be sustained and I agree with the order proposed by him
JGANNADHADAS J l have had the advantage of reading the judgments of my Lord the Chief Justice and of my learned brother Justice SR Das
On the assumption that the question raised in this case is one that arises under article 191 f and 5 of the Constitution that being the footing on which the learned Judges of the High Court dealt with the case I agree with that portion of the judgment of my learned brother Justice SR Das which holds that the impugned section 7 of the Bengal Land Revenue Sales West Bengal Amendment Act 1950 West Bengal Act VII of 1950 is intra vires and for the reasons stated by him
A larger question has however been raised as to whether this is a case which falls within the scope of article 191 f and 5 or article 31 of the Constitution
Since on either view we are all agreed as to the final result of this appeal I have felt rather reluctant to go into this larger question
But out of profound respect for my Lord the Chief Justice and my learned brother Justice SR Das who have dealt with the matter fully and out of a sense of duty to the Court I venture to express my views briefly
My Lord the Chief Justice is inclined to the view that the fundamental right declared in article 191 f has no reference to concrete property rights but refers only to the natural rights and freedoms inherent in the status of a citizen
Even so with respect I fail to see how the restrictions on the exercise of those fights referred to in article 195 can be otherwise than with reference to concrete property rights
To me it 669 appears that article 191 f while probably meant to relate to the natural rights of the citizen comprehends within its scope also concrete property rights
That I believe is how it has been generally understood with out question in various cases these nearly four years in this Court and in the High Courts
At any rate the restrictions on the exercise of rights envisaged in article 195 appear to relate normally if not invariably to concrete property rights
To construe article 191 f and 5 as not having reference to concrete property rights and restrictions on them would enable the legislature to impose unreasonable restrictions on the enjoyment of concrete property except where such restrictions can be brought within the scope of article 312 by some process of construction
As at present advised I am unable to give my assent to such a view
Now as regards article 31 I agree that clause 1 cannot be construed as being either a declaration or implied recognition of the American doctrine of  police power
The negative language used therein cannot I think with respect be turned into the grant express or implied of a positive power
I need as my Lord the Chief Justice has pointed out in his judgment no such grant of police power is necessary having regard to the scheme of the Constitution
That scheme as I understand it is this
The respective legislatures in the country have plenary powers assigned to them with reference to the various subjects covered by the entries enumerated in the Lists of the Seventh Schedule by virtue of articles 245 to 255
These powers are subject to the limitation under article 13 that the power is not to be so exercised as to infringe the fundamental rights declared in Part III of the Constitution
And therefore the legislatures can exercise every power including the police power  if it is necessary to import that concept within these  limits in so far as it is not provided for in article 192 to 6 and article 31 5 b ii or other specific provisions in the Constitution if any
The only problem thus presented to the Courts is not as to what is the extent of the police power but as to what is the scope 670 and limit of the fundamental right which is alleged to have been infringed by legislative action
I agree with my learned brother Justice SR Das that the Constitution envisages a large measure of social control a means to achieve the goal set out in the preamble and in the directive principles enumerated in Part IV
I am also of the view that the Courts may not ignore the directive principles as having no bearing on the interpretation of constitutional problems since article 31 categorically states that it shall be the duty of the State including the legislature by virtue of the definition of State  in Part III made applicable by article 36 to apply these principles in making laws
While therefore I agree in thinking that a substantial measure of social control legislation may become necessary in the fullness of time that to my mind is no reason for construing article 311 as implying some undefined police power though such a consideration may have relevance in the determination of the ambit of a fundamental right
On the other hand I am unable to agree with the view that article 311 has reference only to the power of Eminent Domain
I do not dispute that it comprehends within its scope the requirement of the authority of law as distinguished from executive fiat for the exercise of the power of Eminent Domain
But it appears to me that its scope may well be wider
This really depends on what is the exact meaning to be assigned to the word property as herein used and on whether deprivation contemplated by article 31 I is in substance the same as taking possession or acquisition contemplated in article 312
My Lord the Chief Justice is inclined to the view that taking possession or acquisition is to be construed as having reference to and meaning deprivation or vice versa
Undoubtedly taking Possession and acquisition amount to deprivation but the converse may not follow in the particular context in which these words and phrases are used
With great respect I can see no warrant for the construction adopted except the assumption that article 311 and article 312 refer to the same and identical topic of 671 eminent domain and that they provide for the different requirements thereof ie the requirement authority of law under article 311 and the requirements of public purpose and compensation under article 312
But it appears to me that if in article 31 2 acquisition and taking possession were meant to be synonymous with deprivation already used in article 31 1 there was no reason to drop the use of the word deprivation in article 312 and to use other words and phrases therein
For instance article 312 may well have run as follows
There shall be no deprivation of property movable or immovable   for public purposes under any law authorising the same unless the law provides    or some other such clause may have been suitably drafted
It appears to me that while the framers of the Constitution laid down the requirement of the authority of law for deprivation of property with a larger connotation they limited the requirement of payment of compensation to what may reasonably be comprehended within the concepts of acquisition and taking possession
With respect to read these words and phrases in article 31 2 as meaning the same thing as deprivation used in article 31 1 and to make the test of substantial abridgement or deprivation as the sine qua non for payment of compensation under article 31 2 is to open the door for introduction of most if not all the elements of wide uncertainty which have gathered round the word taken used in the corresponding context in the American Constitution notwithstanding caution to the contrary which my Lord the Chief Justice has indicated in his judgment
I am inclined to think that it is in order to obviate this that the framers of the Constitution deliberately avoided the use of the word deprived or deprivation in article 312
I am conscious of the principle that a Constitution has to be liberally construed so as to advance the content of the right guaranteed by it
But where as in this case there is what appears a deliberate choice of the language used and where it is not unlikely that having regard to the goal that the Constitution has 672 set to itself in Part IV certain degree of caution and restraint may well have been intended as to the limits of the right the intendment of the language used has in my opinion to prevail
On the other hand I am unable to agree with my learned brother Justice SR Das that acquisition and taking possession in article 31 2 have to be taken as necessarily involving transfer of title or possession
The words or phrases appear to me to comprehend all cases where the title or possession is taken out of the owner and appropriated without his consent by transfer or extinction or by some other process which in substance amounts to it the possession in this context meaning such possession as the nature of the property admits and which the law recognises as possession
This seems to follow from the enumeration of the classes of property in article 31 2 to which it is applicable and also by reason of the broader consideration that from the point of view of the owner or possessor whose title or possession is appropriated every such act of appropriation stands on the same footing
That the idea of transference of title or possession is not necessarily to be implied by article 31 2 appears to me to be also indicated by article 31 5 b ii which more often than not would cover cases of destruction of property
Incidentally I may mention that I am inclined to the view in agreement with my LOrd the Chief Justice that article 31 5 b ii is an exception to article 31 2 and is intended to absolve the need for payment of compensation for acquisition or taking possession of property for the purposes specified therein
It therefore seems to imply payment of compensation if such acquisition or taking possession of property is for other purposes
The question then remains as to what is property contemplated by article 31 2 apart from the specified categories included therein by enumeration in the phrase any interest in or in any company owning any commercial or industrial undertaking It is no doubt true that in a wide sense property connotes not 673 only a concrete thing corporeal or incorporeal but all the bundle of rights which constitute the ownership thereof and probably also each individual fight out of that bundle in relation to such ownership
But in the context of article 31 2 as in the cognate context of article 19 1f the connotation of the word is limited by the accompanying words acquisition and taken possession
Hence out of the general and wide category falling within the connotation of the word property only that which can be the subject matter of acquisition or taking possession is the property which is within the scope of article 312
This to my mind excludes for instance a bare individual right out of the bundle of rights which go to make up property as being itself property for purposes of article 31 2 unless such individual right is in itself recognised by law as property or as an interest in property an easement a profits a prendre and the like and as capable of distinctive acquisition or possession
Thus for instance in the case with which we are concerned in the present appeal the right to annul under tenures cannot in itself be treated as property for it is not capable of independent acquisition or possession
The deprivation of it can only amount to a restriction on the exercise of the rights as regards the main property itself and hence must fail under article 19 1 f taken with 19 5 according to my understanding thereof
In my view however the word property as used in article 31 1 may have been intended to be understood in a wider sense and deprivation of any individual right out of a bundle of rights constituting concrete property may be deprivation of property which would require the authority of law
I am aware of the possible criticism that in two parts of the same article the same word must be intended to have been used in the same sense
While this is a normal rule of construction it can yield to the requirement of the context arising from the  juxtaposition of other words or phrases
To my  mind article 31 1 though part of an article is in essence1 an independent provision to some extent overlapping with the requirements of the law 674 of Eminent Domain
It is on a par with article 21
It seems to me to serve a distinct purpose over and above that relating to the law of Eminent Domain viz that it relates also to deprivation of property other than that which may fall within the scope of article 31 2
It enjoins that such deprivation shall not be brought about save by authority of law
In view of what I have said above it follows that the assumption with which I have started viz that this is a case falling under article 19 1 f and 5 is in my opinion correct
In the result I agree that the appeal should be allowed with costs here and in the High Court
Appeal allowed
Agent for respondent No1 RR Biswas


Summary:
The first respondent B purchased a Touzi in 24 Parganas Collectorate at a revenue sale held on 9th January 1942
As such purchaser he acquired under section 37 of the Bengal Revenue Sales Act 1859 the right to avoid and annul all under tenures and forthwith to eject all under tenants with certain exceptions which are not material here
In exercise of that right he gave notices of ejectment and brought a suit in 1946 to evict certain under tenants including the second respondent herein and to recover possession of the lands
The suit was decreed against the second respondent who preferred an appeal to the District Judge 24 Parganas contending that his under tenure came within one of the exceptions referred to in section 37
When the appeal was pending the Bill which was later passed as the West Bengal Revenue Sales West Bengal Amendment Act 1950 was introduced in the West Bengal Legislative ASsembly on 23rd March 1950
It would appear according to the statement of objects and reasons annexed to the Bill that great hardship was being caused to a large section of the people by the application of section 37 of the Bengal Land Revenue Sales Act 1859 in the urban areas and particularly in Calcutta and its suburbs where the present phenomenal increase in land values has supplied the necessary incentive to speculative purchasers in exploiting this provision section
37 othe law for unwarranted large scale eviction and it was therefore considered necessary to enlarge the scope of protection already given by the section to certain categories of tenants with due safeguards for the security of Government revenue
The Bill was eventually passed as the amending Act and it came into force on 15th March 1950
It substituted by section 4 the new section 37in place of the original section 37 and it provided by section 7 that all pending suits appeals and other proceedings which had not already resulted in delivery of possession shall abate
Thereupon B contending that section 7 was void 588 as abridging his fundamental rights under article 191f and article 31 
moved the High Court under article 228 to withdraw the pending appeal and to determine the constitutional issue raised by him
The appeal was accordingly withdrawn and the case was heard by Trevor Harries CJ and Banerjee J who by separate but concurring Judgments declared section 7 unconstitutional and void
They held that B s right to annul under tenures and evict undertenants being a vested right acquired by him under his purchase before section 37 was amended the retrospective deprivation of that right by section 7 of the amending Act without any abatement of the price paid by him at the revenue sale was an infringement of his fundamental right under article 19 1f to hold property with all the rights acquired under his purchase and as such deprivation was not a reasonable restriction on the exercise of his vested right section 7 was not saved by cl
5 of that article and was void
The State of West Bengal preferred the present appeal to the Supreme Court Held per PATANJALl SASTRI CJ Article 19 1 f has no application to this case
The word hold in the article means own
The said sub clause f gives the citizen of India the abstract right to acquire own and dispose of property
This article does not deal with the concrete fights of the citizens of India in respect of the property so acquired and owned by him
These concrete rights are dealt with in article 31 of the Constitution
Under the scheme of the Constitution all those broad and basic freedoms inherent in the status of a citizen as a free man are embodied and protected from invasion by the State under cl
1of article 19 the powers of State regulation of those freedoms in public interest being defined in relation to each of those freedoms by cls
2 to 6 of that article while rights of private property are separately dealt with and their protection provided for in article 31 the cases where social control and regulation could extend to the deprivation of such rights being indicated in para
ii of sub clause b of cl
5 of article 31 and exempted
from liability to pay compensation under cl
Held per PATANJALI SASTRI CJ MEHR CHAND MAHAJAN  and GHULAM HASAN JJ
concurring i Article 31 protects the right to property by defining the limitations on the power of the State to take away private property without the consent of the owner
Clauses 1 and 2 of article 31 are not mutually exclusive in scope and content but should be read together and understood as dealing with the same subject namely the protection of the right to property by means of limitations on the State s power referred to above the deprivation contemplated in clause 1 being no other than the acquisition or taking possession of the property referred to in cl
The words taking of   possession or   acquisition in article 312 and  the words acquisition or requisitioning in entry 589 No 33 of List I and entry No 36 of List II as also the words acquired or requisitioned in entry No 42 of List III are different expressions connoting the same idea and instances of different kinds of deprivation of property within the meaning of article 311 of the Constitution
No cut and dried test can be formulated as to whether in a given case the owner is deprived of his property within the meaning of article 31 each case must be decided as it arises on its own facts
Broadly speaking it may be said that an abridgement would be so substantial as to amount to a deprivation with in the meaning of article 31 if in effect it withheld the property from the possession and enjoyment of the owner or seriously impaired its use and enjoyment by him or materially reduced its value 
The expression taking possession in art 312 of the Constitution can only mean such possession as the property taken possession of is susceptible to and need not be actual physical possession  ii It is difficult to hold that the abridgement sought to be effected retrospectively of the rights of a purchaser at a revenue sale is so substantial as to amount to a deprivation of his property within the meaning of article 311 and 2
No question accordingly arises as to the applicability of el
5bii of article 31 to the Per DAs J 1 The abridgement of the rights of the purchaser at a revenue sale brought about by the new section 37 amounts to nothing more than the imposition of a reasonable restriction on the exercise of the right conferred by article 191fin the interests of the general public and is perfectly legitimate and permissible under cl
5 of that article
It is well settled that the statement of objects and reasons is not admissible as an aid to the construction of a statute but it can be referred to only for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extent and urgency of the
evil which he
sought to remedy
Those are matters which must enter into the judicial verdict as to the reasonableness of the restrictions which article 195 permits to be imposed on the exercise of the right guaranteed by article 191f
II The correlation between article 191f and article 31 is that if a person loses his property by reason of its having been compulsorily acquired under article 31 he loses his right to hold that property and Cannot complain that his fundamental right under article 191fhas been infringed
The rights enumerated in article 191 subsist while the citizen has the legal capacity to exercise them
AK Gopalan s case  and Chiranjit Lal s case  referred to
590 For the purpose of this appeal the
matter proceeds on the footing that article 19 relates to abstract right as well as to right to concrete property
III The true scope and effect of cls
1 and 2 of article 31 is that cl
1 deals with deprivation of property in exercise of police power and enunciates the restrictions which our Constitution makers thought necessary or sufficient tO be placed on the exercise of that power namely that such power can be exercised only by authority of law and not by a mere executive fiat and that cl
2deals with the exercise of the power of eminent domain and places limitations on the exercise of that power
These limitations constitute our fundamental rights  against the State s power of eminent domain
IV Both these clauses cannot be regarded as concerned only with the State s power of eminent domain because then a cl 1 would be wholly redundant for the necessity of a law is quite clearly implicit in cl
2 itself b deprivation of property otherwise than by taking of possession  or acquisition of it will be outside
the pale of constitutional protection c there will beno protection against the exercise of police power in respectOf property either by the executive or by the legislature
Chiranjit Lals case  and The Bihar Zamindari case referred to
V The State s police power is not confined a within the ambit of article 19 forto say otherwise will mean i that there is no protection for any person citizen or non citizen against exercise of police power by the executive over property ii that although in cls
2 to 6 there is protection against  iei legislature in respect of restriction there is no protection against deprivation or h within d 5 b of article 31 because to say otherwise will mean __ i that the police power which is inherent in sovereignty and does not require express reservation has been unnecessarily defined and reserved ii that the Constitution does not prescribe any test for the validity of the laws which fail within the clause and therefore the law failing within the clause may be as archaic offensive and 
unreasonable as the legislature may choose to make it iii that the clause gives no protection against the executive iv that the exercise of the police power by the legislature is confined within  the very narrow and inelastic limits of the clause and that no beneficial or social legislation involving taking 591 of property can be undertaken by the State if the law falls outside the clause except on terms of payment of compensation v that acqUiSition Of property for which compensation is Usually provided eg acquisition of land for a public park hospital Or z dearing a slum area will henceforth be permissible without the law providing any compensation VI The argument that if article 311 is read as a fundamental right against deprivation of property by the executive and article 312 as laying down the Iimits of State s power of eminent domain then there will be no real protection
whatever for the State will deprive a person of his property without compensation by simply making a law is not tenable because i there will certainly be protection against the execute just as the 29th clause of the Magna Charts was a protection against the British Crown ii there is protection under article 312 against the legislature in the matter of taking of possession Or
acquisition for compensations to be given and under cl
5 of art 19 against unreasonable  restraint iii the absence of protection against the legislature in other cases is not greater than the absence of protection against the legislature in respect of taxation and if the legislature can be trusted in the latter case it may equally he  trusted in the former case
VII Every taking of a thing into the custody of the State or its nominee does not necessarily mean the taking of possession Of that thing within the meaning of art 312 so as to call for compensation
The police power is exercised in the interest of the community and the power of eminent domain is exercised to 
implement a public purpose and in both cases there is a taking of possession of private property There is however a marked difference between the exercise of these two sovereign powers
It is easy to perceive though somewhat difficult to express the distinction between the two kinds of taking of possession which undoubtedly exists
In view of the wide sweep of the State s police power it is neither desirable nor possible to lay down a fixed general test for determining whether the taking of possession authorised by any particular
law falls within one category or the other
Without therefore attempting any such general enunciation of any inflexible rule it is possible to say broadly that the aim purpose and the effect of the two kinds of taking of possession are different and that 
in each case the provisions of
the particular law in question will have to be carefully scrutinised in order to determine in which category  falls the taking of possession authorised by such law  A consideration of the ultimate aim the immediate purpose and the mode and manner of the taking of possession and the duration for which such possession  is taken the effect of  it  on the rights of the person dispossessed and other such like elements must all determine the judicial verdict
592 VIII Treating the right to annul under tenures and to eject under tenants and decree for ejectment as property as used in article 312 the State has not acquired those rights for there has been no transfer by agreement or by operation of law of those rights from the respondent B to the State or anybody else
The purchase being at a Revenue sale to
which West Bengal Act VII of 1950 applies the purchaser of the property has been deprived of this right by authority of law and the case falls within cl
1 of article 31 and no Within cl
2 of article 31
If the impugned section is regarded as imposing restrictions on the purchaser such restrictions in the circumstances of the case are quite reasonable and permissible under article 195 and in the premises the _plea of unconstitutionality cannot prevail and must be rejected
Pet  JAGANNADHADAS J i On the assumption that the question raised in this case is one that arisesunder article 191fand 5 of the Constitution the impugned section of the West Bengal Act VII of 1950 is intra vires because the restrictions are reasonable within the meaning of article 195 of the Constitution ii that article 191f while probably meant to relate tot he natural rights of the citizens comprehends within the scope also concrete property rights
The restrictions on the exercise of rights envisaged in article 195 appear to relate normally if not invariably to concrete property rights iii that cl
1of article 31 cannot be construed as being either a declaration or implied recognition of the American doctrine of police power
It comprehends within its scope the requirement of the authority of law as distinguished from executive fiat for the exercise of the power of eminent domain but its scope may well be wider
Acquisition and taking possession in article 312 cannot be taken as necessarily involving transfer of tide or possession
The words or phrases comprehend all cases where the title or possession is taken out of the owner and appropriated without his consent by transfer or extinction or by some other process which in substance amounts to it the possession in this context meaning such possession as the nature of the property admits and which the law recognizes as possession
iv In the context of article 312 as in the cognate context article 191f the connotation of the word propertyis limited by the accompanying words acquisition and taking possession
In the present
case the right to annul under tenures cannot in itself be treated as property for it is not capable of independent acquisition or possession
The deprivation of it can only amount to a restriction on the exercise of the fights as regards the main property itself and hence must fall under article 191f taken with 195
Butchers Union etc
Co vs Crescent City etc
Co   Punjab Province vs Daulat Singh and Others 1946 FCR 1 Chiranjit Lal Chauduri vs The Union of India and Others 1950 SCR 869 AK Gopalan vs The State of Madras 1950 SCR 88 PD Shamdasani vs Central Bank of India 1952 SCR 391 Ministry of State
for the Army vs Dalziel   Pennsylvania Coal Co vs Mahou  Dwarkadas Shrinivas vs Sholapur Spinning and Weaving Mills Ltd 1954 SCR 674  State of Madras vs VG Row 1952 SCR 597 Ram Singh vs The State of Madras 1951 SCR 451 State of Bihar vs Maharajadhiraja Kameshwar Singh of Darbhanga 1952 SCR 889 Noble State Bank vs Haskeli   Eubank vs Richmond 226 US 137 Ioseph Hurtado V People of California 1883 10 US 516 referred to