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

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 = appeal accepted, 0 = rejected): 1

Explanation:
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.