Case: The State Of West Bengal  Vs. Subodh Gopal Bose And Others

Patanjali Sastri, CJ.1. This appeal raises issues of great public and private importance regarding the extent of protection which the constitution of India accords to ownership of private property.2. The first respondent herein (hereinafter referred to as the respondent) purchased the entire Touzi No. 341 of the 24-Pargans Collectorate at a revenue sale held on January 9, 1942. As such purchaser, the respondent acquired under s. 37 of the Bengal Revenues 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 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 S. 37.3. 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 as "the amending Act") was introduced in the West Bengal Legislative Assembly on March 23, 1950. It would appear, according to the "statement of object and reasons" annexed to the bill, that great hardship was being caused to a large section of the people by the application of S. 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 provisions (S. 37) of the 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 March 15, 1950. It substituted by S. 4 the new S. 37 in the place of the original S. 37 and it provided by S. 7 that all pending suits, appeals and other proceedings which had not already resulted in delivery of possession shall abate.4. Thereupon the respondent, contending that S. 7 was void as abridging his fundamental rights under Art. 19(1) (f) and Art. 31, moved the High Court under Art. 228 to withdraw the pending appeal and determine the constitutional issue raised by him. The appeal was accordingly withdrawn and the case was heard by Trevor Herris C. J. and Banerjee J. who, by separate but concurring judgments, declared S. 7 unconstitutional and void and returned the case to the District Court for disposal in conformity with their decision.The learned Judges held that the respondents right to annul under-tenures and evict under-tenants being a vested right acquired by him under his purchase before S. 37 was amended, the retrospective deprivation of that right by S. 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 Art. 19 (1) (f) to hold property with all the rights acquired under his purchase, and as such deprivation was not a reasonable restriction on the respondents exercise of his vested right, S. 7 was not saved by cl. (5) of that article and was void.5. 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 cl. (1) of Art. 19, then, it was also "property" within the meaning of cl. (1) of Art. 13 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 S. 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 --- "Charanjit Lal v. Union of India", AIR 1951 SC 41 (A) and also on the analogy of the reasoning of the majority in --- Gopalan v. State of Madras, AIR 1950 SC 27 (B).Alternatively, it was urged that if the correct view was that the nullification of the respondents 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 cl. (5) of Art. 19, having regard to the facts and circumstances which led to the enactment of the measure as disclosed in the Statement of objects and Reasons annexed to the Bill which, for this purpose, is admissible.6. It will be convenient to deal first with the latter contention of the Attorney-General. Sub-clause (f) of cl. (1) of Art. 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-cls. (a) to (e) and (g) are clearly of that description and in such context sub-cl. (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 citizens right to own property and has no reference to the right to the property owned by him, which is dealt with in Art. 31.Referring to the "privileges and immunities" mentioned in Art. 4 and Amendment 14 of the American Federal Constitution, Bradley J said in --- Butchers Union etc. Co. v. Crescent City etc. Co. (1883) 111 US 746 (C)"."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 writ 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 v. Coryell, 4 Wash, (C. C.) 371 (D)).These rights are different from the concrete rights 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 those concrete rights and of maintaining them in the courts, which capacity, power or privilege can only be invaded by the State. Those primordial and fundamental rights are the privileges and immunities of citizens which are referred to in the 4th article of the Constitution and in the 14th Amendment to it. (Italics here into ----------- mine)".7. We are not here concerned with meaning and content of the phrase "privileges and immunities" in the context of those provisions which, according to some of the Judges, have 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 cl. (1) of Art. 19 seems analogous to cl.(1) of Art. 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 Art. 31 to cl. (2) of Art. 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 Art. 19(1). While they provided for the protection of concrete rights of property owned by a person in Art. 31.The meaning of the phrase "to 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 Ss. 111 and 298 of the Government of India Act, 1935, where the same phrase is used in prohibiting imposition of "disability" on grounds of religion, place of birth, descent, colour or any of them on a British subjects domiciled in the United Kingdom and on an Indian subject of His Majesty domiciled in India respectively, and those sections do not deal with expropriation of specific property belonging to such person which is dealt with in S. 299.8. There are difficulties in the way of accepting the view of the learned Judges below that Arts. 19(1) (f) and 19(5) deal with the concrete rights of property and restraint to which they are liable to be subjected. In the first place, it will be noticed that sub-cl. (f) of cl. (1) of Art. 19 deals only with the rights of citizens, whereas Art. 31 deals with the rights of persons in general. If Art. 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-cl. (f) of cl. (1) of Art. 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-cl. (f) of cl. (1) of Art. 19 read with cl. (5) is construed as relating to concerets 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 is regard to imposition of restrictions on enjoyment of private property. Such restrictions are imposed to private property. Such restrictions are imposed in exercise of the power inherent in the State to regulate private rights of property when they 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.9. On the other hand, differential treatment of citizens and non-citizens would be perfectly intelligible if sub-cl. (f) of cl. (1) of Art. 19 and cl. (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 Art. 19(1) (f) the judicial review under cl. (5) as to the reasonableness of such control and regulation might have an unduly hampering effect on legislation in 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 cl. (2) of Art. 31 subject to the exceptions specified in para. (ii) of sub-cl. (b) of cl. (5) of Art. 31.10. Nor am I much impressed with the suggestion that the reference to "exercise" in cl. (5) of Art. 19 of the rights conferred by sub-cl. (f) of cl. (1) indicates that the latter rights must be rights of property. Clause (5) could as well contemplate restrictions on the exercise of a citizens freedom to acquire, hold and dispose of property, as for instance, banning acquisition of land in a given 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 person only (cf. --- "Punjab Province v. Daulat Singh", AIR 1946 PC 66 (E)) 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 citizens as a free man are embodied and protected from invasion by the State under cl. (1) of Art. 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 Art. 31, the cases where social control and regulation could extend to the deprivation of such rights being indicated in Para, (iii) of Sub-cl. (b) of cl. (5) of Art. 31 and exempted from liability to pay compensation under cl. (2).On this view, no question of correlating Art, 19(1) (f) with Art. 31 could arise and the analogy of --- Gopalans case (B) has no application. On this view, the question whether S. 7 of the amending Act is a reasonable restriction on the exercise of the respondents right to the property purchased by him could not also arise as cl. (5) of Art. 19 could then have reference only to disabilities of the kind already mentioned.11. Turning next to the contention based on Art. 31(1), it was put thus in the language of Das J. in --- AIR 1951 SC 41 at p. 62 (A), which the learned Attorney-General fully adopted :"Article 31(2) formulates the fundamental right in a negative from 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 31(2) prohibits the acquisition or taking possession property for a public purpose under any law unless such law provides for payment of compensation. It is suggested that clauses (1) and (2) of Art. 31 deal with the same topic, namely, compulsory acquisition or taking possession of property cl. (2) being only an elaboration of cl. (1).There appear to me to be two objection to this suggestion. If that were the correct view, then cl. (1) must be held to be wholly redundant and cl. (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" in 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 Art. 31. On the contrary, the language of cl. (1) of Art. 31 is wider than that of cl. (2) for deprivation of property may well be brought about otherwise than by acquiring or taking possession of it.I think cl. (1) enunciates the general principle that no person shall be deprived of his property except by authority of law, which put in a positive from, 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 cl. (1). The effect of cl. (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".12. I have made this lengthy extract in order to avoid possible unfairness in summarising it. These 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 clause (1) and (2) mutually exclusive in scope and content, - cl. (2) imposing limitations only on two particular kinds of deprivation of private property, namely, those brought about by acquisition or taking possession thereof , and cl. (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 without a public purpose to be served thereby, as these two conditions are stipulated only for acquisition and taking possession under cl. (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 Art. 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.It 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 cl. (1) defines the "police power" in relation to rights of property is no satisfactory answer, as the same power could as well have been extended to these two particular kinds of deprivation. Such extension would at list have avoided the following anomaly : compensation is paid to indemnify the owner for the loss of his property. It would make no difference to him whether such deprivation was authorised under cl. (1) or cl. (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 cl. (1), which makes his loss all the more grievous.But, according to Das J.s reading of that clause, the Constitution-makers have provided for no indemnification of the expropriated owner. Why ? Because, it is said, deprivation under cl. (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 in cl. (1), and then seek to justify such sweeping and arbitrary power by calling it "police power". According to Das J., cl. (2) 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 the deprived of his property by authority of law. In other words, the framers of our Constitution, who began Part III 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 !13. Speaking of police power, as applied to personal liberty Prof. Willis says (Constitutional Law P. 728) :There were 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 thereto.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 Art. 19 which delimit the regulative power of the Legislatures as applied to the freedoms enumerated in cl. (1) of that article including the freedom referred to in sub-cl. (f).But cl. (1) of Art. 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 cls. (2) to (6) of Art. 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 restrictions imposed on the freedoms mentioned in cl. (1) of Art. 19 should be reasonable and in public interest, deprivation of property, except, in the two cases provided for in cl. (2) of Art. 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 cls. (2) to (6) of Art. 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.14. 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 in America, I said in ---AIR 1950 SC 27 at p. 73 (B) :"When that power (legislative power) was threatened with prostration by the excesses of due process, the equally vague and expansive doctrine of "police power" i. e. the power of Government to regulate private rights in public interest was evolved to counteract such excesses".And Das J. in --- "AIR 1950 SC 27 at p. 116 (B)" 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 "antidote" doctrine of police power and embodied it in cl. (1) of Art. 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. Have granted the power in express terms, the Constitution defines in Art. 31 the limitation on the exercise thereof as constituting the fundamental rights to property of the owner, all fundamental rights of the people being restraints on the State (see observations at p. 72 in --- AIR 1950 SC 27 (B)).But the power of social control and regulation of private rights and freedoms for the common good 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 felt 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 cls. (2) to (6) of Art. 19 in relation to the rights and freedoms specified in cl. (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 cl. (1) of Art. 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 (Intoxication liquors, etc.) or Entry No. 8 of List III (Drugs and poisions). Thus the American doctrine of police power as a district and specific legislative power is not recognised in our Constitution and it is therefore contrary to the Scheme of the Constitution to say that cl. (1) of Art. 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 --- AIR 1951 SC 41 at p. 56 (A) 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".15. The correct approach, in my opinion, to the interpretation of Art. 31 is to bear in mind the context and setting in which it has been placed. As already stated, Pat III of the Constitution is designed to afford protection to the freedoms and rights mentioned therein against in roads by the State which includes the legislatures as well as the executive governments in the country. Though, as pointed out in --- AIR 1950 SC 27 (B) citing Eshugbayi Eleko v. Government of Nigeria, AIR 1931 PC 248 (F) 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 Art. 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 Art. 31, it is hardly necessary to emphasise, 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 property" of every person. But how does the article protect the right of property ? It protects it by defining the limitations of 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 prerequisite 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 law" Constitutional Limitations, Vol. II, p. 1119.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. Blackstone also says that it is legislature alone that can interpose and compel the individual to part with his property : Commentaries, Vol. I. p. 110.It is this limitation which the framers of our Constitution have embodied in cl. (1) of Art. 31 which is thus designed to protect the rights to property against deprivation by the State acting through its executive and legislative 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 Art. 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 prosecution of the right to property by means of the limitations on the State power referred to above, the deprivation contemplated in cl. (1) being no other than the acquisition or taking possession of property referred to in cl. (2).16. Much argument was expended to show that cl. (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 mere elaboration of cl. (1), which referred to deprivation generally. It was submitted that cl. (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-s. (2) of S. 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 v. Collector of Bombay", AIR 1946 Bom 216 (G) that Rule 75-A of the Defence of India Rules 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 cl. (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 form of deprivation of private property by the State.17.I see no sufficient reason to construe the words "acquired or taken possession" used in cl. (2) of Art. 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 Art. 31 (2) refers to moveable 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 cl. (2) as well ? It is fallacious to suggest that unless "taking possession" is synonymous with "requisitioning", the power to make a law 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 in no more necessary for conferring such power than for conferring power to make a law authorising deprivation of property which cl. (1) of Art. 31 postulates. (See observations in --- P. D. Shamdasani v. Central Bank of India, AIR 1952 SC 59 at p. 60 (H). The word "acquisition" is not a term of art, and it ordinarily means coming into possession of, obtaining, gaining or getting as ones own. It is in this general sense that the words has been used in Articles 9, 11 and 19(1) (f) and not as implying any transfer or vesting of title.In --- Minister of State for the Army v. Dal-sial, 68 C L RI 261 (I), 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 S. 51 (xxxi) of the Australian 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 legislature 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 he 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, cl. (5)(b)(ii) of Art. 31, which excepts any law made in future "for the prevention of danger to life or property" from the operation of cl. (2) shows that the latter clause, but for such exception, would entail liability to pay compensation for deprivation by destruction, which must therefore be taken to fall within the scope of cl. (2), for a law made for the prevention of danger to life or property may often have to provide for destruction of the property appropriated.I am of opinion that the word "acquisition" and its grammatical variations should, in the context of Art. 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 Art. 31 (2) 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 owning, any commercial or industrial undertaking" which is expressly included in cl. (2) of Art. 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 acquire" in cl. (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 ownership 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 Art. 31(2).18. It will now be seen that the two objections raised by Das J. to the view expressed above, namely, that cls. (1) and (2) must be read together and understood as dealing with the same topic, are really baseless. The first objection is that cl. (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 States 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 fall within the exception in cl. (5) (b) (ii), 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-cl. (b) was inserted ex abundanite cautela as even without it no one could have supposed that a law of this kind mentioned in that sub-clause would fall under cl. (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-cl. (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-cl. (b) is introduced by way 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 States power to do so was so well established that sub-cl. (b)(ii) was really unnecessary and must be taken to have been inserted ex abundante cautela, in either view, the second objection must equally fall.The fact is that all the cases referred to in sub-cl. (b) are different forms 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 cl. (2) as to payment of compensation, the framers have thought it necessary to insert cl. (5) (b).19. Where was the necessity, it was asked, to provide in cl. (1) of Art. 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 the case of the regulative powers exercisable under Art. 19(2) to (6) ? The answer is : the same need apparently which dictated the enactment of Art. 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.20. Attention was called to Art. 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 Art. 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 individuals private rights as modeled by the municipal law". Commentaries, Vol. I. p. 109.This is not an antiquated view.So modern a document as the Declaration of Human 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 property" in Article 17, and the framers of our Constitution have evidently proceeded on the view. Secondly, the argument also overlooks that cl. (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 were is 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 Art. 31 (5) (b) 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.21. 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 Art. 31 (1) ? Our Constitution-makers, it was said , trusted the Legislature, as the people of Great Britain trust their Parliament which protects the Englishmans 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 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 III of the Constitution.In --- "AIR 1950 SC 27 at p. 72 (B) 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 III of the Indian Constitution.22. There have always been two schools of opinion regarding the efficacy of a declaration of fundamental rights in a Constitution. British 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 of India Act, 1935, should embody certain fundamental rights, the Joint Parliamentary Committee observed (Para 366)."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 complied.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 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 rights 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 circumstances, 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 in conveniences 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, afflictive, and irreparable. They are in constant progression 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 Cooleys Constitutional Limitations, 8th Edn., Vol., I. P. 535).23. 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.24. On this view of the meaning and effect of Art. 31, the question is whether S. 7 read with S. 4 of the amending Act infringes the fundamental right of the respondent under that article. These provisions by their retrospective operation undoubtedly abridge the respondents 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 under tenants in occupation of portions of the estate. Does such abridgement amount to deprivation of property within the meaning of Art. 31 as interpreted above, and if so, does it fall within the exception in cl. (5) (b) (ii) of that article ?25. Now, the word "property" in the context of Art. 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 judicial 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 Art. 31 (2), for any restriction imposed on the use and enjoyment of property can be regarded as a deprivation of one or more of he rights thereto fore exercised by 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. v. Mahon. (1922) 260 US 393 (J). "is that while property may be regulated to ;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 in a very wide sense so as to cover any injury or damage to property, coupled with the equally vague 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 cl. (I) and understood as having reference to such substantial abridgement of the rights of owner ship 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 Art. 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 Art. 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.26. The learned Judges of the High Court did not consider the case from this point of view. As has been stated, they applied Art. 19 (1) (f) and (5) and held that S. 7 of the amending Act, by its retrospective operation, imposed on the respondents 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 Art. 31 as interpreted above.A comparison of the scope and effect of the old S. 37 with S. 37 which is substituted in its place by S. 4 of the amending Act and which S. 7 shows to be clearly retrospective, discloses that, although the right of a purchaser to annul under-tenures and evict under-tenants is curtailed by new S. 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 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 of the purchaser. This amendment is in line with the traditional tenancy legislation in this country affording relief to tenants whenever the tenancy laws were found, due to charging conditions, to operate harshly on the tenantry. I find it difficult to hold that the abridgment 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 Arts. 31 (1) and (2). No question accordingly arises as to the applicability of Cl. (5) (b) (ii) to the case.

Decision:
1[ds]6. It will be convenient to deal first with the latter contention of thee (f) of cl. (1) of Art. 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(a) to (e) and (g) are clearly of that description and in such context(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 citizens right to own property and has no reference to the right to the property owned by him, which is dealt with in Art.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 citizens as a free man are embodied and protected from invasion by the State under cl. (1) of Art. 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 Art. 31, the cases where social control and regulation could extend to the deprivation of such rights being indicated in Para, (iii) of(b) of cl. (5) of Art. 31 and exempted from liability to pay compensation under cl.am of opinion that the word "acquisition" and its grammatical variations should, in the context of Art. 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 Art. 31 (2) 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 thatcomparison of the scope and effect of the old S. 37 with S. 37 which is substituted in its place by S. 4 of the amending Act and which S. 7 shows to be clearly retrospective, discloses that, although the right of a purchaser to annulnts iscurtailed by new S. 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 theand tenants newly brought within theis 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 of the purchaser. This amendment is in line with the traditional tenancy legislation in this country affording relief to tenants whenever the tenancy laws were found, due to charging conditions, to operate harshly on the tenantry. I find it difficult to hold that the abridgment 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 Arts. 31 (1) and (2). No question accordingly arises as to the applicability of Cl. (5) (b) (ii) to theI 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 profession into one in reversion may not also be taken into account in determining the reasonableness of the restrictions permissible under Article 19 (5).Aperusal of clause (5) of Article 31 which I have already quoted will at once show that clause excepts certain laws from the operation of clause (2) only. It will also appear that the exception covers, under(b), only certain kinds of future laws. Item (i) under(b) comprises future laws imposing or levying any tax or penalty. Item (ii) under thatsaves future laws for the promotion of public health or the prevention of danger to life or property. It is said that this clause (5) (b) (ii) saves laws to be made in exercise of the States police power.The argument is that the States police power of imposing "restrictions" 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 become necessary for the police power to extend beyond "restrictions and to inflict "deprivation" of property it can do so by the kind of law which is by clause (5) (b) (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 otherseems to follow 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 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 (5) (b) (ii), which more often than not, would cover cases of destruction ofI may mean 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 only a concretebut all the bundle of rights which constitute the ownership thereof and probably also each individual right out of that bundle in relation to such ownership. But the context of Article 31in the cognate context of Article 19(1)(f)the connotation of the word is limited by the accompanying words "acquisition" and "takingout 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 31(2). 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 propertyan easement, aand the likeand as capable of distinctive acquisition orfor instance in the case with which we are concerned in the present appeal, the right to annulcannot 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 to main property itself and hence must fall under Article 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 ormy mind Article 31(1), though part of an Article is in essence an independent provision to some extent overlapping with the requirements of the law of the Eminent Domain. It is on a par with Art. 21. It seems to me to serve a distinct purpose over and above that relating to the law of the 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 above by the authority of law.