Case: B. Shankara Rao Badami &amp; Ors Vs. State Of Mysore &amp; Anr

clearly so demand, a statute is not to be construed so as to take away the property of a subject without compensation: Attorney-General v. De Keysers Royal Hotel 1920 AC 508. The power to take compulsorily raises by implication a right to payment : Central Control Board v. Cannon Brewery, Co., Ltd., 1919 AC 744. The words "subject to the provisions of Entry 42, in List III" in Entry 36 reinforce the argument, as these words must be taken to mean that the power to make a law with respect to acquisition of property should be exercised subject to the condition that such law should also provide for the matters referred to in Entry 42, in other words, a twofold restriction as to public purpose and payment of compensation (both of which are referred to in Entry 42) is imposed on the exercise of the law-making power under Entry 36. Entry 36 at the material time read as follows:"Acquisition or requisition of property, except for the purposes of the Union, subject to the provisions of Entry 42 of list III".Entry 42 was to the following effect:"Principles on which compensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose is to be determined, and the form and the manner in which such compensation is to be given".By the Constitution (7th Amendment) Act, 1956, Entries 36 of List II. 33 of List I were omitted and Entry 42 of List III was altered and the altered entry reads as follows:"Acquisition and requisitioning of property".It was however pointed out on behalf of the petitioners that the amendment was not retrospective and the validity of the impugned Act must be rested by the language of Entries 36 of List II and 42 of List III as they stood at the material time.9. In our opinion, there is no substance in the argument. It is true, that under the common law of eminent domain as recognised in Anglo Saxon jurisprudence the State cannot take the property of its subject unless such property is required for a public purpose and without compensating the owner for its loss. But, when these limitations are expressly provided for in Article 31 (2) and it is further enacted that no law shall be made which takes away or abridges these safeguards, and any such law, if made, shall be void,there can be no room for implication and the words acquisition of property" in Entry 36 must be understood in their natural sence of the act of acquiring property, without importing into the phrase an obligation to pay compensation or a condition as to the existence of a public purpose. In other words, it is not correct to treat the obligation to pay compensation as implicit in the legislative Entry 33 of List I or legislative Entry 36 of List II for it is separately and expressly provided for in Article 31 (2). The well known maxim expressum facit cessare tacitum is indeed a principle of logic and commonsense and not merely a technical rule of construction. The express provision in Article 31 (2) that a law of acquisition in order to be valid must provide for compensation will therefore necessarily exclude all suggestion of an implied obligation to provide for compensation sought to be imported into the meaning of the word "acquisition" in Entry 36 of List II. In the face of the express provision of Article 31 (2), there remains no room for reading any such implication in the legislative heads. The entries in the Lists of the Seventh Schedule are designed to define and delimit the respective areas of legislative competence of the Union and States Legislatures. Such a context is hardly appropriate for the imposition of implied restrictions on the exercise of legislative powers, which are ordinarily matters for positive enactment in the body of the Constitution.10. It was said that the words "subject to the provisions of Entry 42 of List III" must be taken to mean that the law-making power under Entry 36 could be exercised subject to the two conditions as to public purpose and payment of compensation both of which are referred to in Entry 42. In our opinion, the contention is unsound. The two entries are merely heads of legislation and are neither interdependent nor complementary to each other. These words in Entry 36 mean no more than that any law made under Entry 36 by a State Legislation can be displaced or overridden by the Union Legislation making a law under Entry 42 of List III. It is important to notice that similar words do not occur in Entry 33 of List I which confers on Parliament the power to make laws with respect to acquisition of property for the purpose of the Union.For if these restrictive conditions as to public purpose and payment of compensation are to be derived only from those words, then it must follow that in the absence of those words, Parliament can make law, authorising acquisition of property without a public and without a provision for compensation.No reason was suggested why Parliamentary Legislation with respect to such acquisition of property is to be free from such restrictive condition, while State Legislation should be subject to them. The true inference is that the power to make law belonging to both Parliament and the State Legislatures can be excercised only subject to the aforesaid two restrictions not by reason of anything contained in the legislative entries themselves but by reason of positive provisions contained in Article 31 (2). But as legislation falling within Article 31A cannot be called in question in a Court of law for non-compliance with those provisions such legislation cannot be struck down as unconstitutional and void. In our opinion, Counsel on behalf of the petitioners is unable to make good his argument that the impugned Act was beyond the legislative competence of the Mysore Legislature at the time when it was enacted.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The impugned Act is entitled as an Act to provide for the "abolition of personal inams and certain miscellaneous inams in the State of Mysore except Bellary District." The preamble states that it is expedient in the public interest to provide for the abolition of personal inams and certain miscellaneous inams in the State of Mysore except Bellary District and for other matters connected therewith. Section 1 (4) enacts that this section and Sections 2, 27, 38 and 40 shall come into force in respect of any inam village, or minor inam in an un-alienated village, on such date as the Government may by notification appoint.In the present case, it is plain that under Article 31A as introduced by the 1st Amendment to the Constitution or as altered by the 4th Amendment, the impugned Act is protected from attack in any Court on the ground that it contravenes the provisions of Article 31 (2) of the Constitution. The reason is that the impugned Act is a law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of such rights as contemplated by Article 31A of the Constitution. The impugned Act provides for acquisition of the rights of inamdars in inam estates in Mysore State and it is intended to abolish all intermediate holders who were termed as superior holders and to establish direct relationship between the Government and occupants of land in the Inam Villages in respect of which notifications had been issued. The legislation was under taken as a part of agrarian reform which the Mysore State Legislature proposed to bring about in the former State of Mysore. The impugned statute, therefore, falls under the protection of Article 31A of the Constitution and cannot be challenged on the ground that Article 31 has been violated, that no principle of compensation has been provided or that the compensation provided for is illusory orthat case the petitioners lands were notified for acquisition or the purpose of housing schemes and the object of the acquisition was slum clearance. In that case also it was held by this Court that the principle of Bela Banerjees case, 1954 SCR 558   = (AIR 1954 SC 170  ) (supra) should be applied and by virtue of Article 31 (2) the Legislature in making the law of acquisition must provide for a "just equivalent" of what the owner has been deprived of or specify the principles for the purpose of ascertaining such "just equivalent." It was pointed out that the comparative study of the principle Act and the Amending Act showed that if land was acquired for a housing scheme under the Amending Act, the claimant would get a lesser value than what he would get for the same or similar land acquired for some public purpose under the principal Act. The discrimination between persons whose lands were acquired for housing schemes and those whose lands were acquired for other public purposes could not be sustained on the principal of reasonable classification and the Amending Act clearly violated Article 14 of the Constitution and was void. In our opinion, the ratio of the two decisions in 1964-6 SCR 936   = (AIR 1965 SC 190  ) and 1965-1 SCR 614   = (AIR 1965 SC 1017  ) (supra) has no application to the present case because those cases related to legislation not dealing with agrarian reform and the protection of Article 31A of the Constitution was not available to either of the statutes challenged in those cases.In our opinion, there is no substance in the argument. It is true, that under the common law of eminent domain as recognised in Anglo Saxon jurisprudence the State cannot take the property of its subject unless such property is required for a public purpose and without compensating the owner for its loss. But, when these limitations are expressly provided for in Article 31 (2) and it is further enacted that no law shall be made which takes away or abridges these safeguards, and any such law, if made, shall be void,there can be no room for implication and the words acquisition of property" in Entry 36 must be understood in their natural sence of the act of acquiring property, without importing into the phrase an obligation to pay compensation or a condition as to the existence of a public purpose. In other words, it is not correct to treat the obligation to pay compensation as implicit in the legislative Entry 33 of List I or legislative Entry 36 of List II for it is separately and expressly provided for in Article 31 (2). The well known maxim expressum facit cessare tacitum is indeed a principle of logic and commonsense and not merely a technical rule of construction. The express provision in Article 31 (2) that a law of acquisition in order to be valid must provide for compensation will therefore necessarily exclude all suggestion of an implied obligation to provide for compensation sought to be imported into the meaning of the word "acquisition" in Entry 36 of List II. In the face of the express provision of Article 31 (2), there remains no room for reading any such implication in the legislative heads. The entries in the Lists of the Seventh Schedule are designed to define and delimit the respective areas of legislative competence of the Union and States Legislatures. Such a context is hardly appropriate for the imposition of implied restrictions on the exercise of legislative powers, which are ordinarily matters for positive enactment in the body of theour opinion, the contention is unsound. The two entries are merely heads of legislation and are neither interdependent nor complementary to each other. These words in Entry 36 mean no more than that any law made under Entry 36 by a State Legislation can be displaced or overridden by the Union Legislation making a law under Entry 42 of List III. It is important to notice that similar words do not occur in Entry 33 of List I which confers on Parliament the power to make laws with respect to acquisition of property for the purpose of the Union.For if these restrictive conditions as to public purpose and payment of compensation are to be derived only from those words, then it must follow that in the absence of those words, Parliament can make law, authorising acquisition of property without a public and without a provision for compensation.No reason was suggested why Parliamentary Legislation with respect to such acquisition of property is to be free from such restrictive condition, while State Legislation should be subject to them. The true inference is that the power to make law belonging to both Parliament and the State Legislatures can be excercised only subject to the aforesaid two restrictions not by reason of anything contained in the legislative entries themselves but by reason of positive provisions contained in Article 31 (2). But as legislation falling within Article 31A cannot be called in question in a Court of law for non-compliance with those provisions such legislation cannot be struck down as unconstitutional and void. In our opinion, Counsel on behalf of the petitioners is unable to make good his argument that the impugned Act was beyond the legislative competence of the Mysore Legislature at the time when it was enacted.