27 May 1952
Supreme Court
Download

RAJA SURIYA PAL SINGH Vs THE STATE OF U.P. AND ANOTHER(AND OTHER CASES)

Case number: Appeal (civil) 283-295 of 1951


1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 21  

PETITIONER: RAJA SURIYA PAL SINGH

       Vs.

RESPONDENT: THE STATE OF U.P. AND ANOTHER(AND OTHER CASES)

DATE OF JUDGMENT: 27/05/1952

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.

CITATION:  1975 AIR 1083

ACT:     Uttar  Pradesh Zamindari Abolition and Land Reforms  Act (I of 1951)--Law for abolition of zamindaries and intermedi- ate tenures--Validity--Provision for compensation and public purpose  --Necessity of--Right of eminent  domain--Jurisdic- tion of Court to enquire into validity of  Act--Constitution of  India,  1950-Constitution (First Amendment)  Act.  1951, Arts 31, 31-A, 31-B, 362; Sch. VII, List II, entries 18, 36, List  III, entry 42’Delegation of legislative  powers--Fraud on the Constitution--Spirit of the Constitution--Meanings of "public  purpose", "law", "legislature"-Compulsory  acquisi- tion  of  Crown grants, charities and  private  property  of Rulers under covenant of merger----Legality.

HEADNOTE:     Held by the Full Court (PATANJALI SASTRI C.J.,  MAHAJAN, MUKHERJEA,  DAS  and CHANDRASEKHARA  AIYAR JJ.).--The  Uttar Pradesh  Zamindari Abolition and Land Reforms Act, 1950,  is valid  in  its entirety.  The jurisdiction of the  court  to question its validity on the ground that it does not provide for  payment of compensation is barred by arts. 31(4),  31-A and 31-B of the Constitution. The said Act is not a fraud on the Constitution; it does not delegate essential legislative power to the executive; and is not liable to be impugned  on the ground of absence of a public purpose.     Per  MAHAJAN J.--(i) The expression "public purpose"  is not  capable  of a precise definition and has  not  a  rigid meaning.  It  can only be defined by a process  of  judicial inclusion  and exclusion.  The definition of the  expression is elastic and takes its colour from the statute in which it occurs,  the concept varying with the time and the state  of society  and its needs.  The point to be determined in  each case  is whether it is in the interest of the  community  as distinguished from the private interest of an individual. (ii)  There is nothing in law to prevent the  subject-matter of  a Crown grant being compulsorily acquired for  a  public purpose  and  land held by the taluqdars of  Oudh  does  not therefore  stand  on  a higher footing than  that  of  other owners of Oudh.     (iii)  Property dedicated to charity by a private  indi- vidual is not immune from the sovereign’s power to compulso-

2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 21  

rily acquire property for a public purpose. 1057     (iv) Recourse cannot be had to the spirit of the Consti- tution when its provisions are explicit; and when the funda- mental  law has not limited either in terms or by  necessary implication the general powers conferred on the  legislature it  is  not  proper to deduce a  limitation  from  something supposed to be inherent in the spirit of the Constitution.     (v)  The provisions of art. 31(2) do not stand  revealed by  art. 31-A. On the other hand the proviso to art.  31  -A keeps  them alive.  The only difference is that with  regard to  estates  the President. has been  constituted  the  sole judge  for  deciding whether a State law has  complied  with art. 3 1(2).     (vi)  When a whole estate is being acquired and  payment of  compensation  is based on the net income  of  the  whole estate,  it  cannot  be said that the legislation  is  of  a confiscatory  character merely because there are  non-income fetching properties also in the estate.     DAS  J.--(i)The  existence of a public purpose  and  the necessity  for payment of compensation cannot be said to  be an  inherent  part of the spirit of any particular  form  of Government.  The  Indian  Constitution has in  art.  31  (2) recognised  these  two elements as a  pre-requisite  to  the exercise of the power of eminent domain, and as the impugned Act  has been expressly taken out of the operation of  those provisions, the question of invoking any imaginary spirit of the  Constitution cannot be entertained. The  invocation  of such  an  imaginary spirit will run counter to  the  express letter of arts. 31(4), 31-A and 31-B.  (ii) The claim of the Rulers with regard to their private properties is not within art. 862; by offering compensation their ownership is recog- nised; in any event, art. 362 imposes no legal obligation on the  Parliament or State Legislature, and art. 363 bars  the jurisdiction  of the court with respect to disputes  arising out of covenants of merger.

JUDGMENT: CIVIL APPELLATE JURISDICTION. Cases Nos. 283 to 295 of 1951.     Appeals  under  article 132 (1) of the  Constitution  of India from the judgment and decree dated 10th May, 1951,  of the  High  Court  of Judicature at  Allahabad  (Malik  C.J., Mootham,  Chandiramani, Agarwala and Bhargava J.J.) in  Writ Applications Nos. 23, 25, 3330, 3329, 3331 and 3332 of  1951 and  Miscellaneous Judicial Cases Nos. 1 and 2 of  1951  and Civil  Miscellaneous  Nos. 335, 340, 345  of  1951  (Lucknow Bench) and from the judgment and order dated 9th July, 1951, of  Sapru and Agarwala J.J in Writ Application No.  3403  of 1951. 136 1058     The facts that gave rise to these appeals and  petitions are stated in the judgment.     P.R. Das and S.K. Dar (B. Sen and Nanakchand, with them) for the appellants in Cases Nos. 283 to 286, 289 and 290  of 1951.     B.R.  Ambedkar  and Bishan Singh for the  appellants  in Cases Nos. 285 and 288 of 1951.     N.P.  Asthana  and  (K. B. Asthana, with  him)  for  the appellants in Cases Nos. 291 to 294 of 1951.     Prem Mohan Varma for the  appellants in Case No. 295  of 1951.     M.C. Setalvad, Attorney-General for India, and  Kanhaiya

3

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 21  

Lal  Misra (Gopalji Mehrotra and Lakshmi Saran,  with  them) for the respondents.     1951. May 2, 5. The judgment of the CHIEFJUSTICE printed at  pp.  893-916  supra covers these  cases  also.  MAHAJAN, MUKHERJEA, DAs and CHANDRASEKHARA AIYAR JJ. delivered  sepa- rate judgments.     MAHAJAN  J.--These appeals under article 132(1)  of  the Constitution  concern the constitutionality of an Act  known as  the Uttar Pradesh Zamindari Abolition and  Land  Reforms Act (U. P. Act I of 1951), and can be conveniently  disposed of by one judgment.     The  appellants in most of them are owners and  proprie- tors  of extensive landed properties in the State  of  Uttar Pradesh.  Some of them are holders of estates in Oudh  under taluqdari  squads granted to their ancestors by the  British Government.  H.H. Maharaja Paramjit  Singh  of   Kapurthala, appellant  in  Appeal No. 285 of 1951, is the holder  of  an estate  in  Oudh, the full ownership, use and  enjoyment  of which was guaranteed to him by the Government of India under article  XII of the Pepsu Covenant of Merger.  Appeals  Nos. 291 to 295 of 1951 have been preferred by religious institu- tions holding endowed properties.     On  8th August, 1946, the United Provinces.  Legislative Assembly passed the following resolution :-- 1059     "This Assembly accepts the principle of the abolition of the zamindari system in this Province which involves  inter- mediaries between the cultivator and the State and  resolves that the rights of such intermediaries should be acquired on payment of equitable compensation and that Government should appoint a committee t0 prepare a scheme for this purpose."     A committee was appointed to give effect to the  resolu- tion  and  to  prepare the necessary scheme.   It  made  its report  in July, 1948.  A Bill was introduced in the  United Provinces  Legislative Assembly on the 7th July,  1949,  was referred to a Select Committee which made its report on  9th January,  1950,  and was read before the  Assembly  for  the first  time  on 17th January, 1950.  On  the  21st  January, 1950, the Assembly was prorogued.  It reassembled on the 2nd February,  the  Bill was reintroduced on the  7th  February, 1950,  and was read for the second time on 28th July,  1950, and for the third time on 4th August, 1950.  On 6th  Septem- ber,  1950, it came before the Legislative Council  and  the Council passed it with certain amendments on the 30th Novem- ber,  1950.  The Legislative Assembly was prorogued  on  the 13th  October, 1950, and in view of the amendments  made  in the  Legislative Council, the Bill was reintroduced  in  the Legislative Assembly on 26th December, 1950, and was  passed in  its amended form on 10th January, 1951.  It  was  subse- quently  passed by the Legislative Council and after  having received  the assent of the President came into force on  or about the 25th January, 1951. The Preamble of the Act declares that"Whereas it is  expedi- ent  to  provide for the abolition of the  zamindari  system which involves intermediaries between the tiller of the soil and  the State in the Uttar Pradesh and for the  acquisition of  their rights, title and interest and to reform  the  law relating  to  land tenure consequent on such  abolition  and acquisition  and to make  provision for other  matters  con- nected therewith."     1060      Sub-section (1) of section 4 provides that  as from  such date as the State Government may by  notification declare,  all  estates situated in the Uttar  Pradesh  shall vest  in the State free from all encumbrances.  "Estate"  is defined in section 3 (8) as meaning "the area included under

4

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 21  

one  entry in any of the registers prepared  and  maintained under  clause  (a),  (b), (c) or (d) of section  82  of  the United Provinces Laud Revenue Act, 1901, or in the registers maintained under clause (e) of the said section in so far as it  relates to a permanent tenure holder and includes  share in  or  of  an estate."  Section 6 enacts  that  subject  to certain  very  minor exceptions, upon the publication  of  a notification under section 4, the rights, title and interest of  all intermediaries in every estate in the area  referred to in the notification, and in all sub-soil in such  estates including rights if any, in mines and minerals, shall  cease and shall be vested in the State of Uttar Pradesh free  from all encumbrances.  The expression "intermediary" is  defined in section 8 (2) as meaning with reference to any estate, "a proprietor,   under-proprietor,  sub-proprietor,   thekadar, permanent  lessee in Avadh, and permanent  tenure-holder  of such estate or part thereof."     The intermediaries whose rights, title and interest  are thus  acquired  become entitled to receive  compensation  at eight  times  the net assets mentioned in  the  Compensation Assessment   Roll  prepared  in accordance with  the  provi- sions  of the Act. The Act further provides that  the  State Government  shall  pay to  every intermediary other  than  a thekadar,  whose estate or estates have been acquired  under the Act, a rehabilitation grant on a graduated scale provid- ed  that  the land revenue payable by such  an  intermediary does not exceed Rs. 10,000.  The scale of the grant is given in Schedule I.  Save in the case of wakfs, trusts and endow- ments which are wholly for religious or charitable purposes, the highest multiple is for class paying land revenue up  to Rs.  25. the multiple being twenty, while the lowest is  for the class 1061 paying  land revenue exceeding Rs. 5,000, but not  exceeding Rs. 10,000 when the multiple is one.     Part I of the Act includes provisions for the vesting of all  estates in the State, for assessment  of  compensation, for  payment  of compensation to all intermediaries  and  of rehabilitation grant to those of them who pay Rs. 10,000  or less  as  land revenue and similar matters.  Part  II  deals with  consequential changes that become necessary by  reason of the vesting of all estates in the State and provides  for the  incorporation in each village of a gaon samaj  and  the vesting  of certain lands in the gaon samaj; it divides  the cultivators   into four  classes, viz,  bhumidars,  sirdars, asamis  and adhivasis, determines their rights and  provides for the payment of land revenue; it further contains  provi- sions  designed to prevent the fragmentation of holdings  or their  division  into holdings of uneconomic  size,  and  to facilitate  the  establishment of  co-operative  farms,  and other similar matters.     The  following provisions of the Act which came  in  for severe  criticism  during the course of  the  arguments  ad- dressed to us may be set out in extenso.     Section  6 (a) provides for the vesting in the State  of all rights, title and interest of all the intermediaries  in every  estate  in such area including  land  (cultivable  or barren),  grove  land,  forests whether  within  or  outside village  boundaries,  trees  (other than  trees  in  village abadi,  holding  or  grove), fisheries,  wells  (other  than private  wells in village abadi, holding or  grove),  tanks, ponds, water channels, ferries, pathways, abadi sites, hats, bazars and melas. Clauses (e) and (g) of this section are in these terms :-     "(e)  All amounts ordered to be paid by an  intermediary

5

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 21  

to the State Government under sections 27 and 28 of the U.P. Encumbered Estates Act, 1934, and  all amounts due from  him under the Land Improvement Loans Act, 1883, or the  Agricul- tural  Loans Act, 1884, shall notwithstanding anything  con- tained in the said enactments, become due forthwith and may, without prejudice to any other mode of 1062 recovery  provided therefore, be realised by  deducting  the amount from the compensation money payable to such  interme- diary under Chapter III.     (g)  (i) Every mortgage with possession existing on  any estate or part of an estate on the date immediately  preced- ing  the date of vesting shall, to the extent of the  amount secured  on such estate or part, be deemed,  without  preju- dice to the rights of the State Government under section  4, to have been substituted by a simple mortgage;     (ii) notwithstanding anything contained in the  mortgage deed  or any other argreement, the amount declared due on  a simple mortgage substituted under sub-clause (i) shall carry such  rate  of interest and from such date as  may  be  pre- scribed."     Section  7 saves certain rights at present held  by  the proprietors from the purview of the Act.  The rights includ- ed  are  in respect of mines which are being worked  by  the zamindars.  Section 9 provides that private wells, trees  in abadi  and buildings situate within the limits of an  estate shall continue to belong to or be held by such intermediary. Section 10 makes every tenant of land belonging to an inter- mediary  and paying land revenue upto Rs. 250, a  hereditary tenant  thereof at the rate of rent payable on the  date  of vesting.  Section 12 gives the same privilege to  thekadars. Similarly  section 15 confers the status of hereditary  ten- ants  on  occupants of lands in which such  rights  did  not exist.  Section 18 provides that all land in the  possession of  intermediaries  as sir, khudkasht or  an  intermediary’s grove shall be deemed to be settled by the State  Government with  such intermediary etc., subject to the  provisions  of the  Act  and  he will be entitled to possession  of  it  as bhumidar  thereof.  Land held by any person as a  tenant  is deemed to be settled by the State Government on such  person as sirdar. Sections 27 and 28 are in these terms :--     "27.  Every intermediary, whose rights, title or  inter- est in any estate are acquired under the provisions of  this Act shall be entitled to receive and be paid compensation as hereinafter provided. 1063     28.  (1). Compensation for acquisition of estates  under this  Act shall be due as from the date of vesting   subject to determination of the amount thereof.     (2)  There shall be paid by the State Government on  the amount  so determined interest at the rate of two  and  half per  centum per annum from the date of vesting to  the  date of-     (i) in the case of the amount to be paid in cash, deter- mination,     (ii)  in the case of the amount to be  given  in  bonds, the redemption of the bonds."     Section 39 lays down the method of determination of  the gross income of the land comprised in a mahal, while section 42 provides for the determination of the gross assets of  an intermediary.  Section 44 lays down the manner of  assessing the net income of an intermediary. It provides as follows :-     "The net assets of an intermediary in respect of a mahal shall  be  computed by deducting from his gross  assets  the following, namely:

6

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 21  

   (a)  any  sum which was payable by him in  the  previous agricultural year to the State Government on account of land revenue  ...............     (b) an amount on account of agricultural income tax,  if any, paid for the previous agricultural year  .....     (c)  cost  of management equal to 15 per centum  of  the gross assets."     Provision  has been made for the appointment of  assess- ment officers and for the preparation of draft  compensation assessment roll by them after hearing objections.  Right  of appeal has also been provided against their decision.     Chapter IV concerns itself with the payment of compensa- tion.  Section 65 of this chapter provides that there  shall be paid to every intermediary as compensation in respect  of the  acquisition of his rights, title and interest in  every estate the amount declared in that behalf under section  60. Section 68 is in these terms ;-- 1064     "The compensation payable under this Act shall be  given in cash or in bonds or partly in cash and partly in bonds as may be prescribed."     Section  72 empowers the State Government to make  rules on  all matters which are to be and may be prescribed.  Sec- tions 113 and 117 provide for the establishment and incorpo- ration of a gaon samaj and for the vesting of all lands  not comprised  in  any holding or grove and forests  within  the village  boundanes,  trees, public wells,  fisheries,  hats, bazars etc., tanks and ponds in the gaon samaj, which is  to supervise and manage and control the lands subject to super- vision by the Government. Other provisions of the Act relate to acquisition of bhumidari rights and of sirdari rights  by tenants,  thekadars  etc., on payment of  a  certain  amount mentioned in the Act.  A bhumidar has the status of a  peas- ant   proprietor in direct relation to Government and  these agrarian reforms contemplated by  the  Act aim at converting the zamindari tenure system into a ryotwari system.     The main  questions for consideration  in  these appeals are the following :--   1.  Whether  the impugned Act was validly enacted.   2.  Whether  the acquisition of properties con- templated by the Act is for a public purpose.   3.   Whether the delegation of power in the  various  sec- tions of the Act is within the permissible limits.   4.   Whether the taluqdari properties held under  "sanads" from  the  British Government can be the  subject-matter  of acquisition.   5.  Whether the properties of the Maharajah of  Kapurthala in  Oudh  could  in view of article 12 of  the  Pepsu  Union Covenant be acquired under the Act.   6.   Whether the said Act constitutes a fraud on the  Con- stitution.     The validity of the Act was attacked on a variety     of grounds  by the learned counsel appearing in  the  different cases and the grounds urged were by no   1065 means uniform or consistent and some of these were  destruc- tive of one another.     Mr.  P.R.  Das, who opened the  attack,  reiterated  the arguments  he had addressed to us in the Bihar  appeals  and urged  that  the obligation to provide for  compensation  is implicit in the power conferred on the State Legislature  by entry  36 of List II with respect to acquisitions, that  the words "subject to the provisions of entry 42 of List III" in entry  36 compel the court to construe entry 36 of  List  II

7

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 21  

along  with entry 42 of List III and, when so construed,  it is  clear that compensation has to be provided for  whenever power  is exercised under entry 36, that there is no  provi- sion  for payment of compensation in the impugned  Act,  the word   "compensation"  meaning  the equivalent in  money  of the  property compulsorily acquired, that the U.P.  Legisla- ture had no power to enact this Act without making provision for  payment of compensation and in legal contemplation  the Act  is not law, that article 31 (2) confers  a  fundamental right  but has nothing to do with legislative  powers  which have  been conferred by articles 245 and 246 read  with  the three lists, that article 31 (4) does not in any way  affect the rights conferred by article 31(2), which exist  notwith- standing  article  31 (4), and it only bars  the  remedy  to challenge  the  Act on the ground that  it  contravenes  the provisions  of clause (2), that the Act constitutes a  fraud on  the  Constitution, and lastly that the Act  is  void  by reason of delegation of essential legislative power.     On the question of the invalidity of the Act for want of a provision for payment of compensation, Mr. P.R. Das  rein- forced his arguments by reference to legislative practice in India  and England and contended that even without  any  ex- press provision for compensation in the different enactments to  which our attention was drawn, the mere use of the  word "purchase"  implied  that  compensation  was  a  concomitant obligation  of  the exercise of the  power  to  compulsorily acquire property.  For the  reasons 1066 given  by me in the Bihar appeals I cannot accept this  con- tention.   If the Constitution was silent on the  point  and provided for compulsory acquisition, the position might have been different.     Mr.  Dhar, who appeared in some of the appeals,  supple- mented the arguments of Mr. Das on this point.  He contended that  regarding half of the properties acquired, the Act was a  piece of confiscatory  legislation  as these   properties were  nonincome  bearing,  and that as regards   the   other half,  though compensation at eight times the net income  is provided,  it is a mere sham inasmuch as the Act makes  pay- ment of compensation discretionary at the will and  pleasure of the Government; the provision being that Government  will pay  when  it  chooses to do so and it may  never  make  the choice. He further contended that the provisions of the  Act regarding compensation are colourable because they complete- ly ignore the potential incomes of the zamindars take notice only of the income recorded in the khatuni entries which  do not  include the sir income, and acquire rent-free  holdings and  undeveloped  mines without any compensation,  that  the deduction  of agricultural income-tax from the gross  income was  unjust and the object of deduction was to  artificially reduce  the  net  income, and the same  procedure  had  been adopted in the case of forests.     Dr.  Ambedkar,  who  appeared in some  of  the  appeals, suggested  a new approach for declaring the Act to  be  bad. He  contended  that qua "estates" defined in  article  31-A, Part I of the Constitution should be deemed as repealed  and struck off from the Constitution. In deciding these  appeal% therefore,  we are to look at the Constitution  without  the chapter on Fundamental Rights; but as the Constitution  aims at  securing liberty and equality for the people  and  gives only a restricted power to the State, the obligation to  pay compensation  when private property is taken is implicit  in the  very  spirit  of the Constitution. Mr.  Das  found  the obligation to pay compensation implicit in entry 36, but Dr, Ambedkar could not see

8

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 21  

  1067 eye  to eye with him though he supported his  contention  by urging that the prohibition to acquire property by  legisla- tion  without  payment of compensation was implicit  in  the spirit of the Constitution.     Mr, Varma, who appeared in some other appeals, supported Mr.  Das’s  argument  that  entry 36 should be read  subject to  the provisions of entry 42 and  further  contended  that the  impugned  Act was the culminating point of a series  of enactments  passed as a device to confiscate the  properties of the zamindars after the passing of the resolution in 1946 by the U.P. Legislature.     Having  negatived the contentions of Mr. Das,  I  cannot for  the same reasons accept the contentions of Mr. Dhar  as sound.   It is convenient now to examine the point  made  by Dr.  Ambedkar  that the obligation to  pay  compensation  is implicit  in  the spirit of the Constitution.  It  is  well- settled  that  recourse cannot be had to the spirit  of  the Constitution when its provisions are explicit in respect  of a certain right or matter. When the fundamental law has  not limited  either  in terms or by  necessary  implication  the general  powers  conferred  on the legislature,  it  is  not possible  to deduce a limitation from something supposed  to be inherent in the spirit of the Constitution. This  elusive spirit is no guide in this matter. The spirit of the Consti- tution  cannot prevail as against its letter.  Dr.  Ambedkar relied  on  the  observations  of Nelson  J.  in  People  v. Morris(1),  quoted  in the footnote, at p. 357  of  Cooley’s Constitutional Limitations.  The footnote states :--     "It  is  now  considered an  universal  and  fundamental proposition  in every well regulated and  properly  adminis- tered government, whether embodied in a constitutional  form or  not, that private property cannot be taken for  strictly private purposes at all, nor for public uses without a  just compensation; and that the obligation of contracts cannot be abrogated or essentially impaired.  These  and other  vested rights of the citizen are held sacred and inviolable, even (1) 13 Wend.325 1068 against   the plenitude of power of the legislative  depart- ment."     Those observations of the learned Judge, however, do not lend support to the contention urged; on the other hand,  it seems  to  me that the proposition stated by Dr.  Cooley  at page  351  (Vol. 1) that the courts are not  at  liberty  to declare an Act void, because in their opinion it is  opposed to  the spirit supposed to pervade the Constitution but  not expressed in words, has an apposite application here.  It is difficult  upon any general principle to limit the   omnipo- tence of the sovereign legislative power by judicial  inter- position  except  so far as the express words of  a  written constitution give that authority.     The argument of Dr. Ambedkar cannot be accepted for  the further reason that it is based on an unwarranted assumption that  qua  the estates of the zaraindars, Part  III  of  the Constitution  stands repealed and is non est.  The truth  is that Part III of the Constitution is an important and  inte- gral  part of it and has not been repealed or  abrogated  by anything contained in article 31-A  of the Constitution;  on the  other band, article 31-A, while providing that  no  law providing  for the acquisition by the State of  any  estate, shall  be deemed to be void on the ground that it is  incon- sistent  with  or takes away or abridges any of  the  rights conferred  by  any of the provisions of  Part  III,  clearly provides that where such law is made by the legislature a of

9

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 21  

State, the provisions of this article shall not apply there- to  unless such law having been reserved for the  considera- tion of the President has received his assent.  This proviso in  express terms keeps alive the alternative provisions  of Part  III of the Constitution in article 31 (3) for  judging whether  the  State  law has or has not  complied  with  the provisions  of  article 31 (2).  The provisions  of  article 31(2). therefore, do not stand repealed by article 31-A.  On the other hand, they are kept alive.  The difference is that persons whose properties fall within the  definition of  the expression  "estate" in article 31-A are deprived  of  their remedy under article 32 of the Constitution and    1069 the President has been constituted the sole judge of  decid- ing  whether a State law acquiring estates under  compulsory power has or has not complied with the provisions of article 31  (2).  The validity of the law in those eases depends  on the subjective opinion of the President and is not justicia- ble.   Once  the assent is given, the law is taken  to  have complied with the provisions of article 31 (2).     It  is true that the principles of payment of  compensa- tion stated in the Act do not give anything like an  equiva- lent  or quid pro quo for the property acquired and  provide only for payment of what is euphemistically described in the resolution of the U.P. Legislature  as  "equitable   compen- sation  ".  Properties fetching no income pass to the  State without  payment     of  any separate  compensation  and  as comprising part of an estate which yields some net income to the  proprietor   According to the affidavit  filed  in  the Balrampur  Raj case, actual income of Rs. 1,42,000 that  the owner receives at present, works out to a sum of Rs.  10,000 under  the provisions of the Act and property worth  several crores  is  being acquired for a mere fraction of  its  true value.  Culturable waste which forms twenty per cent. of the entire  area of the estate, trees, several lakhs in  number, water channels and irrigation works etc., are being acquired along with the cultivated lands and income-fetching  proper- ties without any separate provision for payment of compensa- tion.   But from those facts the conclusion cannot be  drawn that the provisions as to compensation in the Act are  illu- sory. In none of the cases could it be said that the provisions of the impugned Act would result in nonpayment of compensation. Great emphasis was laid on the circumstance that nothing was being  paid  for  non-income fetching  properties.  It  has, however,  to  be  observed that  these  non-income  fetching properties are  integral  parts  of  an  estate  as  defined in  article  31-A  and it cannot be  said  when  payment  of compensation is provided for on the basis of the net  income of the whole of the estate, that the legislation 1070     is of a confiscatory character. Different considerations might  have  prevailed if the estates as a  whole  were  not being  acquired but different pieces of property  were  made the  subject-matter of acquisition. Properties comprised  in an estate may be incomefetching and non-income fetching, the value of these to the owner in the market may well be on the basis  of income and if the Act has laid down the  principle of  payment  of compensation on the foot of net  income,  it cannot be said that the legislation is outside the ambit  of entry 42 of List III.     Dr.  Ambedkar frankly conceded that he was not  prepared to  go  to the length of contending  that  the  compensation provided for in the Act was illusory. He, however, said that it was inadequate, whether tested subjectively or objective-

10

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 21  

ly.  During the period that the Balrampur Raj was under  the supervision  of  the Court of Wards, part  of  the  property acquired was purchased on payment of Rs. 24,09,705  fetching a  net income of Rs. 25,915.  This property, however,  under the Act would be acquired on payment of Rs. 2,08,000.  Under the   U. P.  Encumbered Estates Act  the  Government  itself had valued properties in various places in Uttar Pradesh for the purpose of the Act on standard multiples, viz., from  37 to  20 times the net income.  Price of part of the  property acquired on this basis comes to Rs. 47,14,696, while compen- sation according to the Act payable would be about onefourth of  this  amount.  Be that as it may, article 31  (4)  is  a complete  answer to all these contentions, as held by me  in the Bihar appeals. This Bill was pending in the  legislature of the. State on the 26th January, 1950, when the  Constitu- tion came into force and this circumstance makes article  31 (4) applicable to all these cases.  It was contended by  Mr. Varma  that  the  U.P. Assembly was prorogued  on  the  21st January,  1950,  and the Bill was reintroduced  on  the  7th February,  1980,  and on the 26th January,  1950,  when  the Constitution  came  into force it could not be  said  to  be pending as it had lapsed.  This contention seems to be based on a misapprehension as to the provisions of the    1071 Constitution  Act of 1935 and the provisions of the  present Constitution.  Section  73 of the Government of  India  Act, 1931, and article 196 of the present Constitution provide in unambiguous terms that a Bill pending in the legislature  of a State shall not lapse by reason of the, prorogation of the House  or Houses thereof. In view of these clear  provisions the contention of the learned counsel that the Bill was  not pending on 26th January, 1950, has to be rejected.   Further the provisions of articles 31-A and 31-B completely  shelter this  law from any attack based on any of the provisions  of Part  III  of the Constitution.  This  proposition  was  not disputed.  As the validity of the Act could not be  impugned on  any of the provisions of Part III of  the  Constitution, that was the reason why the attack on its  constitutionality was made on other grounds-ingenious but unsubstantial--lying outside the ambit Part III.     As  regards  the  contention  that the  provisions  with regard  to payment of compensation would result in  non-pay- ment  of it as it is payable at the pleasure  of  Government and the  debts  of  the zamindars are to be deducted out  of it,  my  view is that both these  contentions  are  unsound. Under  the provisions of the Act above  cited,  compensation becomes due on the date of the vesting of the estate. Inter- est  at  two  and a half per cent runs from  that  date  and becomes  payable forthwith.  Section 27 of the Act makes  it obligatory on the Government to pay compensation. Section 65 in  clear terms provides that there shall be paid  to  every intermediary  as  compensation the amount declared  in  that behalf  under  section 60.  Section 68 gives option  to  the Government  to pay compensation either in cash or in  bonds, or partly in cash and partly in bonds as may be  prescribed. If the Government does not prescribe anything, it is obvious that  compensation  will be payable forthwith.  If,  on  the other  hand, Government makes any rules and prescribes  that compensation  will  be payable at some remote time  and  not within a reasonable period it will be open to the 1072 parties  affected to challenge the validity of the rules  on the ground of abuse of power.  These provisions, however, do not  vitiate the Act and affect its validity. So far as  the debts  are concerned, they were payable in  certain  instal-

11

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 21  

ments  out of the income of the lands, they have  been  made payable at once and provision has been made that the  amount be  deducted from the amount of  compensation.   Instalments had been fixed because of the fact that they were  recovera- ble from the income of the land. When the lands are convert- ed  into  money, it follows as a matter of course  that  the right  to recover the debts from the income of the lands  is transferred  to  the compensation money  and  the  provision regarding   instalments becomes infructuous by the  fact  of acquisition.  Dr. Ambedkar further contended that in  fixing the amount of compensation the State was a judge in its  own cause  and this was against the spirit of the  Constitution. There  is  no substance in this contention  as  the   actual amount of compensation is to be determined by the  compensa- tion officer and his adjudication on the point is subject to an appeal.  Government is not the judge of the actual amount of compensation.  So far as the law is concerned, it is  the act  of the legislature and being within its competence,  no challenge  can  be made against the validity of the  Act  on this ground.     The question that the Act does not postulate any  public purpose  and  is  thus unconstitutional  was argued  by  Mr. Dhar  and Dr. Ambedkar with some vehemence and it  was  con- tended that there was no public purpose behind this legisla- tion.   Mr. Dhar urged that the sole purpose of the acquisi- tion  of zamindars’ estates was for increasing the  revenues of  the State and for selling the intermediaries’  interests to private individuals, the intention being to make money by trading activities and at the same time root out the  zamin- dars  who constitute one-fourth of the population  of  Uttar Pradesh.   It was contended that no community in Uttar  Pra- desh  derived  any benefit from the provisions  of  the  Act because the tenants whose status was intended to be  raised, had been given    1073 sufficient relief under statutes already passed and what was humanly  possible  to do for them had been done,  that  they were at present more prosperous than the middle class people and that the creation of a classless society by destroying a class  was not a public purpose. Dr. Ambedkar on  the  other hand  argued that he would have been content had  the  State nationalised  the zamindaries because then  the  acquisition would be for a public purpose, but as under the impugned Act the  State had merely constituted itself a trustee for  dis- tribution  of  the intermediaries’  interests  amongst  the" haves" and not amongst the  "have  nots":  i.e., amongst the bhumidars, sirdars, asamis and adhivasis and not amongst the landless,  the Act was not for a public purpose at  all  but was  an  unfortunate piece of legislation  as  property  was being  acquired for the private benefit of persons  and  not for  public  use and that giving of property to  gaon  samaj also  could not be held to be for public benefit  or  public use.     In  my  opinion, as already stated by me  in  the  Bihar appeals,  these  arguments  are  unsound.   The   expression "public purpose" is not capable of a precise definition  and has not a rigid meaning.  It can only be denned by a process of  judicial inclusion and exclusion.  In other  words,  the definition of the expression is elastic and takes its colour from  the  statute in which it occurs, the  concept  varying with the time and state of society and its needs.  The point to be determined in each case is whether the acquisition  is in  the general interest of the community  as  distinguished from the private interest of an individual. Prof. Willis has summarized the present position in the United States on this

12

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 21  

subject, at pages 817 and 818 of his book, in these words :-     "What  is public use? On this question there  have  been two view-points.  One may be called the older view-point and the  other newer view-point. According to the  older   view- point,  in order  to have    a public  use,  there must   be the use  by the public  .......  ....According to the  newer view-point there 138 11074 is a public use if the thing taken is useful to the  public. This makes public use for eminent domain practically synony- mous  with  public purpose for taxation  and  somewhat  like social interest for  police power  Under this rule it is not necessary for the benefit to be for the whole community, but it must be for a considerable number ."     The High Court took the view that acquisition of proper- ty  under compulsory powers for securing an aim declared  in the Constitution to be a matter of State policy is an acqui- sition for a public purpose. The following observations from the judgment of Bhargava J. may be quoted with advantage :-     "The effect of the impugned Act is to vest the ownership and control of a considerable part of the material resources of the community in the State Government;  ...........   the vesting in the State of the estate of the intermediaries  is an indispensable preliminary to the pursuit of measures  for the  eradication  or mitigation of the principal  causes  of agricultural poverty.  Two of such measures are embodied  in the  Act,  which makes provision for three  new  classes  of tenure-holders,  bhumidar,  sirdar and asami,  and  for  the formation of co-operative farms.  The provisions of  Chapter Vii  of  the  Act, which depend in some  measure  for  their efficacy  on the transfer of property to the State  effected by  Part I of the Act, are clearly directed to the  develop- ment  of village self-government. It can, we think,  be  in- ferred from the Act that the scope is given for more  effec- tive development of the State’s ’agricultural resources than is at present possible  ..............  Reading the Act as a whole  there  can, we think, be no doubt  that  the  primary object  of the legislature is to effect a radical change  in the system of the land tenure now prevailing in this State.     In my opinion, legislation, which aims at elevating  the status  of  tenants by conferring upon  them  the  bhumidari rights  to  which status the big zamindars  have  also  been levelled down cannot be said as Wanting 1075 in  public purposes in a democratic State.  It aims  at  de- stroying  the  inferiority complex in a large  number     of citizens  of the State and giving them a status of  equality with  their former lords and ’prevents the’ accumulation  of big  tracts of land in the hands of a few individuals  which is contrary to the expressed intentions of the Constitution.    Dr.  Ambedkar combated this view and urged that  the  ex- pression  "public  purpose" was not a new concept  when  the Constitution of India was framed; on the other hand, it  had a  settled meaning in the past legislative history  of  this country  and it must be presumed that the Constitution  used the  expression in the same sense in which it had been  used in  the  earlier Acts and in the Government  of  India  Act, 1935,  and that it should not be construed in the  light  of the directive principles laid down in Part IV of the Consti- tution. He contended that had the constitutionmakers intend- ed  to  give this  concept a different meaning than  it  had acquired in the past, they would have clearly given  expres- sion to that intention by saying that the expression "public purpose"  includes  purposes which aim at  implementing  the

13

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 21  

directive principles Of State policy and that Part IV of the Constitution merely contained glittering generalities  which had  no  justification behind them and should not  be  taken into   consideration  in  construing  the   phrase   "public purpose".      In my opinion, the contentions raised by Dr.  Ambedkar, though interesting, are not sound because they are based  on the assumption that the concept of public purpose is a rigid concept and has a settled meaning. Dr. Ambedkar is right  in saying  that in the concept  Of  public purpose there  is  a negative element in that no private interest can be  created in  the  property acquired  compulsorily;  in  other  words, property  of A cannot be acquired to be given to B  for  his own private purposes and that there is a positive element in the  concept  that the property  taken  must be  for  public benefit. Both these concepts are present in the acquisition 1076 of  the zamindari estates.  Zamindaries are not being  taken for  the  private benefit of any  particular  individual  or individuals,  but  are being acquired by the  State  in  the general  interests of the community. Property acquired  will be vested either in the State or in the body corporate,  the gaon  samaj, which has to function under the supervision  of the  State.  Tenants, sirdars, asamis etc., are  already  in possession  of  the  lands in which their status  is  to  be raised  to that of bhumidars.  Zamindars who are  being  re- duced  to the status of bhumidars are also in possession  of the  lands. There is no question in these  circumstances  of taking  property of A and giving it to B.  All that the  Act achieves  is  the equality of the status  of  the  different persons holding lands in the State. It is not correct to say that Government is acquiring the properties for the  purpose of  carrying on a business or a trade. The  moneys  received from  persons seeking bhumidari status or from the income of zamindari  estates will be used for State purposes  and  for the benefit of the community at large. For the reasons given above I hold that the impugned Act is not void by reason  of the  circumstance  that   it  does not  postulate  a  public purpose.     As regards the question of delegation, our attention was drawn  particularly to the provisions of sections 6 (e)  and (g) and 68.  These sections provide for the prescription  of the  rate of interest by the executive government  on  mort- gages and they also authorize the local government to deter- mine the period of redemption of the bonds and the  fixation of  the ratio between payment of compensation in  bonds  and payment  in cash.  In my opinion, the delegation  is  within the permissible limits and does not amount to delegation  of essential  legislative power.  The main principles on  these matters have been laid down in the Act and matters of detail have been left to the rule-making power.     As  regards  the appeal of the  Maharaja  of  Kapurthala (Appeal No. 285 of 1951), the facts are these: By article 12 of the Covenant of Merger dated the 5th 1077 May, 1948, entered into between the Rulers of the States now comprised  in the Pepsu Union, the properties which are  the subject-matter of the appeal were declared and guaranteed as the  private  properties of the Maharaja. Tha  Maharaja  was also  guaranteed a privy purse of Rs. 2,40,000, It was  sug- gested that the Maharaja accepted this sum which was smaller in  amount  than what was allowed to other Rulers  as  privy purse  because  he  was assured of the income  of  the  Oudh estate.  On these facts it was contended that the   impugned Act contravened the provisions of article 362 of the Consti-

14

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 21  

tution inasmuch as it has not paid due regard to the guaran- tees  contained in article 12 of the Covenant.   As  already held by me in the Madhya Pradesh petitions, this  contention is devoid of force. The impugned Act has fully respected the Covenant  of the 5th May, 1948, inasmuch as it  has  treated the  Oudh estate as the private property of the Maharaja  as distinguished  from the State properties and it is  on  that basis  that  it has proceeded to acquire it  on  payment  of compensation. The allegation that the income of this  estate was  to  supplement the privy purse and that  the  appellant accepted a lower sum by way of privy purse than given to the other Maharajas has been denied by the Government and we see no  reason  to hold in the absence of any  material  to  the contrary, that this denial is not true. This Act, therefore, constitutes no breach of the guarantees given in article 362 of the Constitution.  It was urged by the learned  Attorney- General that article 363 of the Constitution bars the juris- diction  of  this Court from going into this  question.  Dr. Ambedkar, on the other hand, contended that this article has no  application because of the fact that the  Government  of India  was  not  a party to this Covenant.   As  at  present advised, I see good deal of force in the point raised by the learned  Attorney-General.  Not only did the  Government  of India  sign the Covenant as a guarantor but it also   signed it  as a concurring party and that being so, the  provisions of article 363 seem to be attracted to the case.  The appeal of the Maharaja therefore fails on this point. 1078     Mr.   Bishan Singh, who appeared  in  Appeals Nos.  284, 285,  288,  289  and 290, argued the special  cases  of  the taluqdars of Oudh.  It was contended that the taluqdars were absolute owners of these holdings at the time of the annexa- tion of Oudh in February, 1856, that subsequently the  Brit- ish Government under the directions of Lord Dalhousie  tried to  take  away  the taluqdars’ rights, but  that  after  the mutiny they were reinstated in their earlier status and that status  was reaffirmed by the enactment of the Oudh  Estates Act, I of 1856, that the permanent and hereditary rights  of the  appellants under that Act in the lands granted to  them under  the sanads could not be affected by  any  legislation made by the successors in interest of the British Government and  that Government could not derogate from its  grant.  It seems to me that the lands held by the taluqdars stand on no higher footing than the properties of other owners in  Oudh. Be that as it may, the matter seems to have been set at rest by the decision of their Lordships  of the Privy Council  in Thakur  Jagannath Baksh Singh v. United Provinces  (1).   At page 119 of the report it was observed as follows:- "It  is,however,desirable to examine the particular  grounds on which it is sought to induce the court to arrive at  this paradoxical conclusion.  Some of these are said to be  based on the general principle of law that the Crown cannot  dero- gate  from its own grant, others are said to depend on  par- ticular  provisions of the Government of India Act.  It  has not been possible for the appellant to adduce any  authority for the principle involved, which their Lordships  apprehend to be that Parliament, whether Imperial, Federal or  Provin- cial,  in  the absence of express prohibition,  is  debarred from legislating so as to vary the effect of a Crown grant."     The  Crown cannot deprive a legislature of its  legisla- tive authority by the mere fact that in the exercise of  its prerogative  it makes a grant of land within  the  territory over which such legislative authority exists (1)  [1946] F.C.R. 111.    1079

15

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 21  

and  no court can annul the enactment of a legislative  body acting  within  the legitimate scope of its sovereign compe- tence.  If therefore it be found that the subject-matter  of a  Crown  grant  is within the competence  of  a  provincial legislature,  nothing  can  prevent  that  legislature  from legislating  about  it, unless the Constitution  Act  itself expressly prohibits legislation on the subject either  abso- lutely or conditionally.     Dr. Asthana, who appeared in Appeals Nos. 291 to 294  of 1951,  argued  the case of the  religious  institutions.  He contended that the properties held by these institutions had already been dedicated for public purposes, that the  income of these properties was being used for holding melas,  feed- ing sadhus and other charitable purposes and that any reduc- tion  in that income would adversely affect  those  institu- tions  and  the properties that were already  dedicated  for public  purposes  could  not be  acquired  under  compulsory powers of acquisition. The argument is fallacious. A charity created  by  a  private individual is not  immune  from  the sovereign’s power to compulsorily acquire that property  for public purposes.  It is incorrect to say that the vesting of these  properties in the State under the provisions  of  the Act in any way affects the charity adversely because the net income  that the institutions are deriving from the  proper- ties  has  been made the basis of  compensation  awarded  to them.     Mr.  Varma,  who  appeared in Appeal No.  295  of  1951, raised  several  new and ingenious points,  none  of  which, however, he was able to substantiate. He contended that  the impugned Act may not be void but the notification which  the Government  was  authorised to issue under the  powers  con- ferred  on it by the statute  would  be  void   because  the executive  government could not infringe fundamental  rights by  a notification which remained unaffected by articles  31 (4), 31-A and 31-B.  The argument does not seem to be  valid because  it suffers from the defect that if the  statute  is good,  the notification which is of a  consequential  nature cannot be held to be bad it was 1080 next contended by the learned counsel that the zamindars had vested rights in existing law, namely, the Land  Acquisition Act  and the impugned statute could not deprive them of  the benefits  of the provisions of that Act.   Similar  argument was  raised in the Bihar appeals and for the  reasons  given therein  it is repelled. It was then contended that in  view of the provisions of the Religious Endowments Act, lands  of religious endowments could not be acquired under the  provi- sions  of  the impugned statute.  This contention  seems  to have been raised on some misapprehension as to the scope and extent of the  Religious  Endowments Act, XX of 1863.  It is not  proved that Act has any application to  the  properties sought  to  be acquired under the impugned  Act.   Moreover, that  Act only deals with management of  certain  properties and does not stand in the way of their acquisition.     Great effort was made by Mr. Varma to establish that the impugned  Act was a piece of fraud on the Constitution.   It was contended that the U.P. Government had been since a long time enacting laws with the fraudulent intention of  depriv- ing   the  zamindars  of  compensation  by  reducing   their incomes,--he  made  mention of half a dozen Acts  that  were enacted in U.P. prior to the impugned Act.  The argument, to my mind, is based on a confusion of thought.  The enactments referred to were enacted by the legislature of U.P.  between 1930 and 1940, before the COnstitution came into force,  and have no connection whatever with acquisition of properties.

16

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 21  

   Mr.  Varma attacked the validity of section 840  of  the Act which enacts that-     "where  any orders had been made  .................   or jurisdiction  exercised  under the provisions  of  the  U.P. Agriculture  Tenants (Acquisition of Privileges) Act,  1949, the  provisions  of the said Act shall be so read  and  con- strued  as  if the amendments mentioned in Schedule  IV  had been made therein and were in force from the commencement of the said Act."     It  was  contended  that the  U.P.  Agriculture  Tenants (Acquisition of Privileges) Act, 1949  was an existing 1081 law  in U.P. and had not been repealed by the  impugned  Act and that being so, this Act could not validate notifications made  under that existing law.  I have not been able to  see the  force of this suggestion.  Be that as it may, the  con- stitutionality of this section does not affect the  legisla- tion as a whole.  The point was never raised before the High Court and has no substance.     It  was  also contended that mere rights in  land  apart from  the lands themselves could not be acquired under  com- pulsory  power and that the U.P. Legislature could  not  ac- quire  proprietary rights in lands and leave  the  bhumidari rights with the landlords.  This proposition sounds strange. It is open to Government to acquire the whole of the  rights of  an owner or a part of that right.  Leasehold  and  other similar  rights can always be acquired and if a person  owns the  totality of rights, it is not necessary to acquire  the whole interest of that person if it is not needed for public purposes.     Lastly,  it was urged that in truth the  legislation  in question fell under legislative power conferred by entry  18 of List II and this power could only be exercised subject to the freedom guaranteed by article 19(f) of the Constitution, that  the  total abolition of the zamindaris  could  not  be protected  by  the provisions of clause 6 of article  19  in that  it could not be regarded a reasonable  restriction  on the  exercise of the right to hold property.  This  argument loses sight of the fact that no help can be sought in  these cases from any of the provisions of Part III; moreover,  the legislation  in question has been enacted under  legislative powers  given by entry 36 of List II and not under entry  18 of that List.  Mr. Varma raised some other contentions  also but  during  the  discussion he eventually abandoned them.     The  result therefore is that there is no  substance  in any  one of the appeals and I would accordingly dismiss  all of them. I would, however, make no order 139 1082 as  to costs in any of them in view of the peculiar  circum- stances of these cases.  The Constitution was amended during the pendency of the litigation and any costs allowed to  the Government would further reduce the inadequate  compensation that  the Government is paying for the acquisition of  these estates. MUKHERJEA J.--I agree that these appeals should be dismissed.     DAS  J.--This  group of appeals arises  out  of  various proceedings instituted in the High Court of Allahabad  under article 226 of the Constitution questioning the validity  of the Uttar Pradesh Zamindari Abolition and Land Reforms  Act, 1950  (U. P. Act No. I of 1951) hereinafter referred  to  as The Act.     On  8th  August 1946, the United  Provinces  Legislative Assembly passed a resolution accepting the principle of  the

17

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 21  

abolition of the zamindari system in the Province  involving intermediaries  between  the cultivators and the  State  and resolving  that the rights of such intermediaries should  be acquired  on payment of equitable compensation.  To  prepare the  necessary  scheme  a committee,  called  the  Zamindari Abolition Committee, was appointed.   That committee submit- ted  its report in August, 1948, making various  recommenda- tions which have been summarised by Mr. S.K. Dhar  appearing for some of the appellants as follows :--    (1)  Abolition of zamindari on payment of Rs. 137  crores at 21/2 per cent interest;     (2) Establishment of gaon samaj;     (3) Supply of rural credit by Government;     (4) Introduction of a modified form of peasant  proprie- torship combined with voluntary co-operative farming;     (5) Introduction of a restricted form of landlordism;     (6)  Prohibiting sub-letting and  permitting  alienation only  to the extent that the alienee will not get more  than 35 acres including his previous possessions, 1083     To give effect to the recommendations of the committee a Bill  which eventually became the Act was introduced in  the U.P. Legislative Assembly on 17th July, 1949.  After  having been  passed by the U.P. Legislature  the Bill received  the assent of the President on 24th January, 1951.  There is  no dispute  in this case that the provisions of article 31  (3) have  been complied with. It is also clear,  notwithstanding that  at  one stage it was disputed by one  of  the  learned counsel evidently out of some misapprehension, that the Bill was  pending before the Legislature at the  commencement  of the  Constitution  and comes within article 31  (4)  of  the Constitution.     The title and preamble of the Act follow the wording  of the resolution of the Legislature. The preamble recites that it is expedient to provide for the abolition of the  zamind- ari system which involves intermediaries between the tillers of  the soil and the State in the Uttar Pradesh and for  the acquisition  of  their  rights, title and  interest  and  to reform the law relating to land tenure consequent upon  such abolition  and acquisition and to make a provision for other matters connected therewith.  The body of the Act is divided into  two parts, each part containing six chapters.  Chapter 11  of Part I deals with acquisition; Chapter III  with  as- sessment  of  compensation and Chapter IV  with  payment  of compensation.  Chapter  V is concerned  with  rehabilitation grant,  while  Chapter  VI deals with  mines  and  minerals. Chapter  VII, which is in Part II, deals with the  constitu- tion  of gaon samaj and gaon sabha. Chapter VIII relates  to tenure,  Chapter  IX to Adhivasis.  Chapter X  is  concerned with  land revenue and Chapter XI with  co-operative  farms. Chapter XII deals with miscellaneous matters. Broadly speak- ing,  the  Act provides for acquisition of the  interest  of intermediaries for a compensation calculated at eight  times the net income arrived at by deducting from the gross assets (which  are  the same as the gross  income)  the  Government revenues,  cesses and local rates,  agricultural  income-tax and costs of management. 1084     Before  notification was issued by the State  Government under  section 4 of the Act, the intermediaries filed  peti- tions  under article 226 of the Constitution praying,  inter alia,  for the issue of a writ in the nature of mandamus  or other  appropriate directions, orders or writs calling  upon the State to forbear from giving effect to or acting in  any manner  by virtue of or under the Act.  By a judgment  of  a

18

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 21  

Full  Bench  of the Allahabad High Court delivered  on  10th May,  1951, the petitions were dismissed.  The  High  Court, however,  certified,  under article 132(1), that  the  cases involved substantial questions of law as to the  interpreta- tion  of the Constitution.  The  intermediaries  accordingly have come up on appeal before us.     Mr. P.R. Das who appears in support of several of  these appeals  raises the same questions as were raised by him  in the Bihar appeals.  Other learned counsel appearing for  the other  appellants  mainly supported Mr. P.R.  Das  and  also sought to reinforce the appellants’ cases on some additional grounds.    Mr. S.K. Dhar has taken us through the provisions of the Act and drawn our attention to the facts and figures appear- ing in the affidavit of Sri J. Nigam filed in Appeal No. 285 of 1951 and the Report of the Zamindari Abolition Committee. He  has contended that of the 20, 16,783 zamindars  in  U.P. about  20,00,000  are tillers of the soil  also;  that  one- fourth  of the cultivable lands is with peasant  proprietors and the remaining three-fourths is with tillers who pay rent to the zamindars.  Most of the tillers have occupancy rights and cannot be ejected.  Since 1947, the Congress  Government has  carried out extensive agrarian reforms;  the  zamindars profits have gone down from 1108 crores in 1939-40 to  1,069 crores in 1945-46, that is to say, there has been a drop  of about 39 crores;cess has been raised by 27 lacs and  income- tax  has  been imposed to the extent of about one  crore  of rupees. The price of agricultural produce has gone up by 400 per  cent so that the price of produce aggregates  to  about rupees  851 crores while the rent payable by the tenants  is only 17  crores.  Therefore, it is 1085 contended that there does not appear any essential or urgent public  purpose for which the impugned Act was necessary  at all.     Dr.  Ambedkar  appearing for the appellants  in  Appeals Nos.  285 and 288 of 1951 has addressed us at length  as  to the meaning ,of the expression "public purpose" as explained in  various judicial decisions and text books. He  has  con- tended  that  it is wrong to say that the  Act  proposes  to acquire  the zamindaries for the State.  What, he  asks,  is the destination of the property acquired ? Under the Act the State assumes the function of a trustee for distributing the property.  The  main purpose of the Act is  to  convert  the tenants  into bhoomidars, sirdars and so on. The net  result of  the Act, according to him, is that the property  of  the zamindars  is   taken  away and vested in the  tenants.   He points  out that the Act makes no provision for  the   land- less labourers.  Dr. Ambedkar maintains that this cannot  be called  "acquisition for a public purpose". He submits  that public  purpose  must be distinguished from  a  mere  public interest  or public benefit or public utility.   He  further contends that the establishment of gaon samaj cannot be said to be a public purpose.     As  regards  compensation Mr. Dhar points  out  that  in fixing  compensation under Table A regard is to be had  only to  income.  Non-income yielding property goes  without  any compensation,  e.g.,  culturable  waste. In  point  of  fact Government acquired a large area of culturable waste at  Rs. 300 per acre and yet no compensation will be paid under  the Act  for culturable waste.  Abadi sites also will  bring  no compensation.  Even income yielding property, e.g.,  irriga- tion works like 600 miles of canal in Balrampur and 143  1/2 miles  in  Bird estate, will yield no compensation  although the  Government  will get additional revenue  out  of  them.

19

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 21  

Scattered trees in Balrampur alone will come up to 85,000 in number.  The income of Seyer property will only be taken  at the figure recorded in Khataunis, although it is  well-known that   actual incomes are not recorded therein.   Seyer  and khud 1086 khast were never assessed to revenue, but under the Act they will be so assessed.  No compensation is, however,  provided for  the loss of status from Zamindari to Bhoomidari.  Rent- free holdings granted by the zamindar which at present yield no  income  are  not taken into account  although  there  is always  a  possibility of  their  resumption.   Agricultural income-tax   is deducted and forest is valued on an  average of 20 to 40 years’ income, although forest industry is of  a very  recent growth.  Finally, the income of mines is to  be computed on an average of 12 years’ income.  The undeveloped mines  or mines which have not started yielding  any  income will  not fetch any compensation. These are, in  short,  the main  objections of the landlords as summarised by Mr.  S.K. Dhar  as  to the method of assessment of  compensation.   As regards the manner of payment of compensation Mr. S.K.  Dhar points out that the Act does not really provide for  payment of compensation at all in the eye of the law.  Under section 68  no  time is fixed for payment.  It is left  to  be  pre- scribed by rules, but no rules have been made.  Compensation payable, say in 40 years or 50 years or 200 years, may be  a charity or a dole but is certainly not compensation,  prompt and  certain such as is contemplated by the decision of  the United States Supreme Court in Sweet v. Rachel(1) and sever- al other cases cited by him. He maintains that the compensa- tion is illusory because-     (i)   it is based not on the actual income but on  arbi- trarily determined income;     (ii) the determination of time and manner of payment  is left entirely at the discretion of the appropriator, and     (iii)  the source of payment is not the community  as  a whole but the expropriated proprietors’ own property.     In  my  judgment in the Bihar appeals I  have  dealt  at length with the meaning of "public purpose" and I have  also dealt with the question of compensation. (1) 4x L. Ed. 188 at pp. 196-97. 1087 It is, therefore, unnecessary for me to reiterate the  prin- ciples  as  I apprehend them.  For reasons stated by  me  in that  judgment the impugned Act cannot be questioned on  the ground  of  absence of a public purpose or absence  of  just compensation.  If  anything, the public purpose in  the  im- pugned Act is much more evident and pronounced than it is in the  Bihar Land Reforms Act.  It is impossible to  say  that the impugned Act is not a law with respect to principles  on which compensation is to be determined and the manner of its payment.  If the Government does not prescribe how  much  of the  compensation will be paid in cash and how much will  be paid by bonds as mentioned in section 18, the intermediaries will  not suffer because under section 65 their  right  will remain enforceable.     I  have  also dealt with the questions of fraud  on  the Constitution and the improper delegation of essential legis- lative power in my judgment in the Bihar appeals and I  need not  repeat the answers given by me. Suffice it to say  that for  reasons stated in my judgment in the Bihar appeals  the main grounds on which the Act is impugned must be rejected.     Dr. Ambedkar has urged that the spirit of the  Constitu- tion  is a valid test for judging the  constitutionality  of the  impugned Act. He maintains that our Constitution  being

20

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 21  

one  for establishing liberty and equality and a  government of  a  free  people it must be held to  contain  an  implied prohibition  against the taking of private  property  except for  a public purpose and on payment of  just  compensation. The necessity for the existence of a public purpose and  for providing  for compensation are, as I have said in my  judg- ment in the Bihar appeals, provisions of article 31 (2) and, therefore,  it  is  not necessary to have  recourse  to  any spirit of the Constitution, for the letter of the  Constitu- tion  itself  requires the two  requisites.   Dr.  Ambedkar, however,  argues  that, so far as the  appellants  are  con- cerned,  Part  III of the Constitution does not  exist  and, therefore,  the maxim expressum facit cessare taciturn  does not apply.  I am not prepared to accept this argument as 1088 sound.   It is true that the appellants cannot question  the impugned  Act on the ground that it is inconsistent with  or takes  away or abridges any of the rights conferred  by  any provisions of Part III, but this circumstance does not imply that  Part III is wholly erased out of the Constitution.  It exists for all other purposes.   For instance, article 3 I-A protects a law providing for acquisition by the State of any estate, but it does not protect a law providing for acquisi- tion by the State of any property which does not come within the expression "estate" as defined in that article.  For all laws  for acquisition of all other properties Part III  cer- tainly  exists and if it is conceded that the provisions  of Part  III exist in so far as such other laws  are  concerned the provision of article 31 (2) requiring the existence of a public  purpose  and  the provision  for  compensation  must exclude  any  theory of the implied existence of  those  two requirements.  In the next place, the spirit of the  Consti- tution  has to be inferred from some provision,  express  or implied,  of the Constitution. Mr. P.R. Das based his  argu- ment on the implications to be deduced from the language  of entry 36 in List II and entry 42 in List III.  Dr. Ambedkar, however, says that it is not necessary for him to go to  any entry  at all.  He points out that the American Courts  have held that where in a Constitution there is a  representative form  of government in which there is liberty  and  equality and when the government is a limited one such a Constitution carries  with it the implication that the State cannot  take private property except for a public purpose and on  payment of  compensation.  I find it very difficult to  accept  this argument.  The existence of a public purpose and the  neces- sity  for  payment of compensation have been  insisted  upon from  very old times when the constitutions  of  governments in  different  countries were entirely  different  from  the Constitution  of the United States.  It follows,  therefore, that  these  two elements cannot be said to be  an  inherent part  of  the spirit of any particular form  of  government. Our Constitution has in article 31 (2) recognised the exist- ence of the two elements  as a    1089 prerequisite to the exercise of the power of eminent domain, The  impugned  Act having been expressly taken  out  of  the operation of those provisions, the question of invoking  any imaginary spirit of the Constitution cannot be  entertained. Indeed,  invocation  of such an imaginary  spirit  will  run counter to the express letters of articles 31 (4), 31-A  and 31-B.     Dr. Ambedkar appearing  for  the  Maharaja  of Kapurtha- la,  who is the appellant in Case No. 289 of 1951, has  also raised the point that the private property of the  appellant is  protected by article 362 of the Constitution and as  the

21

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 21  

impugned  Act does not pay any regard to those rights it  is void.   On 5th May, 1948, certain covenants of  merger  were entered  into  between the rulers of  seven  Punjab  States. Under  article 12 of the covenant each ruler is to be  enti- tled  to  the ownership, use and enjoyment  of  all  private properties.  A list was furnished to the Rajpramukh in which certain  Oudh  properties belonging to  the  appellant  were shown  as his private property.  The appellant  states  that the  amount of his privy purse was fixed at a low figure  in consideration  of  the  income of the  Oudh  estate.   These allegations  are  not admitted by the respondents.   I  have already  dealt  with the correctness of a  similar  argument raised  by Dr. Asthana on behalf of the ruler of  Khairagarh in  petition  No. 268 of 1951 which was concerned  with  the Madhya Pradesh Act.  Shortly put, my view is that this claim to  the private property is not within article 362, that  by offering him compensation the Act has recognised his  owner- ship,  that,  in any event, that article  imposes  no  legal obligation  on the Parliament or the State Legislature  and, finally,  that  article 363 bars the  jurisdiction  of  this Court  with respect to any dispute arising out of the  cove- nant  of merger.  Those covenants were entered into  by  the seven rulers and the Government of the Dominion of India was a  party thereto in that it concurred in the  covenants  and guaranteed  the same.  In my opinion, for reasons stated  in my  judgment  in the Madhya Pradesh petitions, there  is  no substance in this point. 140 1090     Dr. Asthana appearing for certain religious institutions which  are  appellants in Appeals Nos. 291 to  294  of  1951 contended that their property already dedicated to a  public purpose  cannot be acquired for another public  purpose.   I see no substance in this contention. The property  belonging to  the  religious institutions will only change  its  form, namely, from immovable property into money.     Certain   subsidiary points raised by Mr.  Bishun  Singh and  Mr.  Prem  Manohar Verma have been  dealt  with  by  my learned  brother Mahajan J. and it is unnecessary for me  to add anything thereto.     In  my judgment, for reasons stated in ray judgments  in the Bihar appeals and the Madhya Pradesh petitions and those mentioned above, these appeals should be dismissed. CHANDRASEKHARA AYYAR J.-I  agree that the appeals should be dismissed without any order as to costs. Appeals dismissed. Agent for the appellant: S.S. Sukla. Agent for the respondents: C.P. Lal. 1091