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

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 Governmentbill 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.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 byhim. The appeal was accordingly withdrawn and the case was heard by Trevor Herris C. J. and Banerjee J. who, by separate but concurring judgments, declared S. 7 unconstitutional and void and returned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 theirlearned Judges held that the respondents right to annulunder-tenures and evict under-tenantsbeing 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.The first respondent herein (hereinafter referred to as the respondent) purchased the entire Touzi No. 341 of theCollectorate 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 alland 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 certainincluding 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,contending that hiscame 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 unwarrantedeviction" 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 Governmentl 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.The facts and circumstances leading up to the present appeal are as follows :30. At a revenue sale held on the 9th January 1942 the respondent Subodh Bose purchased the entire Touzi No. 341 recorded in the collectorate of the permanently settled district of 24 Parganahs in West Bengal. At the date of that sale theat a revenue sale had, under section 37 of the Bengal Land Revenue Sales Act, 1859, as it then stood, certain, rights as therein mentioned. That section ranThe purchaser of an entire estate in thedistricts of Bengal. Bihar and Orissa, sold under, this Act for the recovery of arrears due on account of the same shall acquire the estate free from all enoumbrances which may have been imposed upon it after the time of settlement; and shall be entitled to avoid and annul alland forthwith to eject allwith the following exceptions :FirstIstimrari or mukarrari tenures which have been held at a fixed rent from the time of the permanent settlement.SecondlyTenures existing at the time of settlement which have not been held at a fixed rent : Provided always that the rents of such tenure shall be liable to enhancement under any law for the time being in force for the enhancement of the rent of such tenures.Thirdly"Talukdari" and other similar tenures created since the time of settlement and held immediately of the proprietors of estates and farms for terms of years so held, when such tenures and farms have been duly registered under the provisions of this Act.FourthlyLeases of lands whereon dwelling houses, manufactories or other permanent buildings have been erected, or whereon gardens, plantations, tanks, wells, canals, places of worship or burning or burying grounds have been made, or wherein mines have been sunk.And such a purchaser as is aforesaid shall be entitled to proceed in the manner prescribed by any law for the time being in force for the enhancement of the rent of any land coming within the fourth class of exceptions above made, if he can prove the same to have been held at what was originally an unfair rent, and if the same shall not have been held at a fixed rent, equal to the rent of good arable land, for a term exceeding twelve years; but not other wise :Provided always that nothing in this section contained shall be construed to entitle any such purchaser as aforesaid to eject any raiyat having a right of occupancy at a fixed rent or at a rent assessable according to fixed rules under the laws in force, or to enhance the rent of any such raiyat otherwise than in the manner prescribed by such laws, or otherwise than the former proprietor, irrespectively of all engagements made since the time of settlement, may have been entitled to do".In exercise of his rights under the section set out above, the respondent Subodh Gopal Bose annulled alland tenancies appertaining to the said Touzi and on the 18th March 1946 instituted a suit, being Title No. 35 of 1946, in the Fourth Court of the Subordinate Judge at Alipore, 24Parganahs for the ejectment of respondents Nos. 2 to 6 claiming that he was entitled to recover possession of the lands in suit by virtue of the rights conferred on him by section 37.The respondent No. 2, who was the defendant No. 1, alone contested the suit. His defence was, inter alia, that he was a raiyat and as such protected by the proviso to section 37. He also claimed protection under the fourth exception to that section. The learned Subordinate Judge who tried the suit delivered his judgment on the 14th February 1949. By that judgment he overruled the contentions of the contesting defendant and passed a decree for ejectment against him. He dismissed the suit against the other defendants (who are now respondents Nos. 3 to 6), holding that they were not necessary parties to the suit.32. On the 25th March 1949 the respondent No. 2 preferred an appeal, being Title Appeal No. 252 of 1949, before the District Judge at Alipore,That appeal was transferred to the Court of the Additional District Judge for hearing. While that appeal was pending the West Bengal Legislature passed West Bengal Act VII of 1950, called the Bengal Land Revenue Sales (West Bengal Amendment) Act of 1950, which received the assent of the Governor of Bengal on the 15th March 1950 and was published in the Official Gazette on the same day.33. By Section 4 of the amending Act, section 37 of the Bengal Revenue Sales Act, 1859, was replaced by a new section the material part of which runs thus. The purchaserof an entire estate in thepermanently settled districts of West Bengal sold under this Act for the recovery of arrears due on account of the same, shall acquire the estate free from all encumbrances which may have been imposed after the time of settlement and shall be entitled to avoid and annul all tenures, holdings and leases with the following exceptions :(a) tenures and holdings which have been held from the time of the permanent settlement either free of rent or at a fixed rent or fixed rate of rent, and(b) (i) tenures and holdings not included in exception (a) above made, and(ii) other leases of land whether or not for purposes connected with agriculture or horticulture, existing at the date of issue of the notification for sale of the estate under this Act :Provided that notwithstanding anything contained in any law for the time being in force or in any lease or contract no person shall be entitled to hold under such a purchaser as is aforesaid any tenure, holding or lease coming within exception (b) above made, free of rent or at a low rent or at a rent or rate of rent fixed in perpetutity or for any specified period unless the right so to hold has been expressly recognised under any law for the time being in force by any competent civil or revenue court; and the purchaser shall be entitled to proceed in the manner prescribed by any law for the time being in force for the determination of a fair and equitable rent of such tenure, holding or7 of the amending Act provides as follows1. (a) every or proceeding for the ejectment of any person from any land in pursuance of section 37 or section 52 of the said Act, and (b) every appeal or application for review or revision arising out of such suit or proceeding, pending at the date of the commencement of this Act shall, if the suit, proceeding, appeal or application could not have been validly instituted, preferred or made had this Act been in operation at the date of the institution, the preferring or the making thereof, abate.2. Every decree passed or order made, before the date of commencement of this Act, for the ejectment of any person from any land in pursuance of section 37 or section 52 of the said Act shall, if the decree or order could not have been validly passed or made had this Act been in operation at the date of the passing or making thereof, be void.Provided that nothing in this section shall affect any decree or order in execution whereof the possession of the land in respect of which the decree or order was passed or made, has already been delivered before the date of commencement of this Act.3. Whenever any suit, proceeding, appeal or application abates under(1) or any decree or order becomes void under(2), all fees paid under theAct, 1870, shall be refunded to the parties, by whom the same were respectivelyis quite clear that under this section 7 the suit of the respondent Subodh Gopal Bose must abate and the decree passed in his favour must become void if that section be valid law and intra vires the Constitution of India.34. On the 21st July 1950 the respondent Subodh Gopal Bose applied before the Additional District Judge before whom the appeal was pending to make a reference under Article 228 of the Constitution of India for a decision of the question whether the provisions of section 7 were void being ultra vires the Constitution. The learned Additional District Judge by his order dated the 16th September 1950 dismissed that application. On the 24th November 1950 the respondent Subodh Gopal Bose applied to the High Court under Art. 228 and eventually on the 18th December 1950 the High Court directed the appeal to be transferred to the High Court only for the decision of the constitutional point.The proceedings were numbered as Reference Case No. 4 of 1950. Notice having been given by the Court to theof Bengal, the State of West Bengal appeared on the Reference. On the 22nd March 1951 the High Court held that section 7 imposed an unreasonable restriction on the respondent Subodh Gopal Boses right to hold property and violated his fundamental right guaranteed by Article 19(1) (f) read with Article 19(5) and was, therefore, void under Article 13(1). With this finding the High Court sent back the records to the lower appellate Court for disposal of the appeal in the light of that finding. On the 30th November 1951 the High Court gave leave to the State of West Bengal to appeal to us. Hence the present appeal.35. Section 7 of the amending Act, the validity whereof is challenged before us, in terms, affectsrights. According to that section every suit or proceeding for ejectment under old section 37 and every appeal or application for review or revision arising out of such suit or proceeding pending at the commencement of the amending Act is to abate if the suit, proceeding, appeal or application could not have been validly instituted, referred or made, had the amending Act been in operation at the date of such suit, proceeding, appeal or application.Further, every decree passed or order made before the commencement of the amending Act for the ejectment of any person from land in pursuance of old section 37 is likewise to become void if such decree or order could not have been validly passed or made if the amending Act had been in operation at the date of the decree or order. The proviso, however, saves decrees or orders in execution whereof possession had been delivered before the commencement of the amending Act.It is, therefore, clear that section 7 affectsrights by giving, in effect, retrospective operation to section 4 which has substituted, inter alia, the new section 37 for the old section 37 of the Act 1859. A cursory comparison of the language of the old section 37 with that of the new section 37 will at once make it clear that the substantial right given by the old section to the purchaser to avoid and annuland to ejectis no longer available to him under the new section 37. Although the opening part of the new section 37 purports to give to the purchaser the right to avoid and annul the tenures etc. that right, by reason of the wide sweep of exception (b), has, for all practical purposes, ceased to exist.The new section 37 does not deprive the purchaser of the physical property, namely, the estate purchased at the revenue sale and he continues to be the owner of that property and can exercise and enforce all the rights which his ownership gives him, except, that he cannot, by reason of the new section 37, avoid or annul the undertenures etc. or eject theIn other order words, out of the bundle of rights constituting the ownership acquired by him, under the old section 37, an item of important right has been taken away, thereby abridging or restricting his ownership.The respondents Subodh Gopal Bose contends that his fundamental right under Article 19(1) (f) of he Constitution, namely his right to hold, that is to say right to enjoy and exercise the full rights of ownership in relation to the property acquired by him under the old section 37 has been violated and, therefore, section 37 has been violated and, therefore, section 7 which operates retrospectively and gives restospective operation to the new section 37 is ultra vires the Constitution and is void under Article 13 (1).

Reasoning:
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.