http://JUDIS.NIC.

IN SUPREME COURT OF INDIA Page 1 of 12

Vs.

RESPONDENT:
STATE OF MYSORE & ANR.

DATE OF JUDGMENT:
04/12/1968

BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
HIDAYATULLAH, M. (CJ)
SHAH, J.C.
MITTER, G.K.
GROVER, A.N.

CITATION:
1969 AIR 453 1969 SCR (3) 1
1969 SCC (1) 1
CITATOR INFO :
F 1971 SC 161 (6)
F 1974 SC1480 (8)
R 1976 SC1207 (61,77,539)
F 1985 SC1416 (70)
RF 1986 SC 555 (6)
RF 1986 SC1117 (10)

ACT:
Constitution of India, 1950,,Arts. 31, 31A, Entry 33, List
1, Entry 36, List II and Entry 42, List III of 7th Schedule-
Mysore (Personal and Miscellaneous) Inams Abolition Act
(Mys. 1 of 1955), constitutional validity of-If can be
challenged on the ground of violation of Art. 31(2)If
condition regarding public purpose and payment of
compensation could be implied in the word ’acquisition’ in
Entries.

HEADNOTE:
By virtue of a notification under s. 1(4) of the Mysore
(Personal ’and Miscellaneous) Inams Abolition Act, 1954, the
Inam villages of the petitioners vested in the State of
Mysore. The petitioner challenged the validity of the Act
on two grounds, namely : (1) that the compensation provided
by the Act was not the market value of the property at the
time of acquisition and since it did not, provide for an
adequate compensation as a ’just equivalent’ there; was a
violation of Art. 31(2); and (2) that the impugned Act was
beyond the legislative competence of the Mysore Legislature
under Entry 36 of List 11 and Entry 42 of List III to the
7th Schedule as the Entries stood before the 7th Amendment
of the Constitution, because, (i) the existence of public
purpose and the obligation to pay compensation are necessary
concomitants of compulsory acquisition of property, and so,
the term ’acquisition’ must be construed as importing by
necessary implication the two conditions of public purpose
and payment of adequate compensation, and (ii) the words
’subject to the provisions of Entry 42, List III’ in Entry
36 of List 11 reinforce the argument that a law with respect
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12
to acquisition of property made under Entry 36 should be
exercised subject to the two-fold restriction as to public
purpose and payment of compensation both of which are
referred to in Entry 42, List Ill.
HELD : (1) (a) The impugned Act provides for the acquisition
of rights of inamdars in inam estates and it is intended to
abolish ’all intermediate holders and to establish direct
relationship between the Government and occupants of land in
Inam villages in respect of which notifications had been
issued. The legislation was undertaken as a part of
agrarian reform which the Mysore State Legislature proposed
to bring about in the State. Therefore, the impugned Act is
a law providing for the acquisition by the State of any
estate or of any rights therein or for the extinguishment or
modification of such rights as contemplated by Art. 31A and
hence, the impugned Act is protected from attack in any
court on the ground that it contravenes Art. 31(2). [9 G-H;
10 A-B]
(b) The ratio of the two decisions in State of Madras v.
Namasivaya Mudaliar [1964] 6 S.C.R. 936 and Vajravelu
Mudaliar v. Spl. Dy. Collector, [1965] 1 S.C.R. 614, in
which it was held that the principle of Beta Banerjee’s
case., [1954] S.C.R. 558 that the Legislature in making a
law of acquisition must provide for a ’just equivalent’ as
compensation, has no application to the present -case,
because, those two cases related to legislation not dealing
with agrarian reform and the protection of Art. 31A was not
available to either of the statutes challenged in those
cases. [10 F; 11 A-B]
2
(2) (1) Under the common law of eminent domain the State
cannot take the property of its subject unless such property
is required for a public purpose and without compensating
the owner for its loss. But, when these limitations are
expressly provided for in Art. 31(2) and it is further
enacted that no law shall be made which takes away or
abridges those safeguards, and any such law, if made, shall
be void, there can be no room for implication, and the words
’acquisition of property’ in Entry 36 must be understood in
their natural sense of the mere ’act of acquiring property
without importing into the phrase an obligation to pay
compensation or a condition as to the existence of a public
purpose. The entries in the Lists of the VII Schedule are
designed to define and delimit the respective areas of
legislative competence, of the Union and State Legislatures
and the principle of the maxim expressum facit cessare
tacitum, makes it inappropriate to treat the obligation to
pay compensation as implicit in Entry 33 of List I or Entry
36 of List 11 when it is separately and expressly provided
for in Art. 31(2). [12 C-F]
(3) The words ’subject to the provision of Entry 42 of List
III’ mean no more than that any law made under Entry 36 by a
State Legislature can be displaced or overridden by the
Union Legislature making a law under Entry 42 of List 11.
If the restrictive conditions as to public purpose and
payment of compensation are to be derived from these words,
their absence in Entry 33 of List I leads to the
unreasonable inference that Parliament can make law
authorising acquisition of property without a public purpose
and without a provision for compensation. The true
inference is that the power to make a law, belonging both to
Parliament and State Legislatures, can be exercised subject
to- the two restrictions not by reason of anything contained
in the legislative entries but by reason the positive
provisions in Art. 31(2). But as legislation falling within
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12
Art. 31A cannot be called in question in a court for non-
compliance with those provisions in Art. 31(2) such
legislation cannot be struck down as unconstitutional and
void. [13 B-E]

JUDGMENT:
ORIGINAL JURISDICTION: Writ Petitions Nos. 188 and 189 of
1968.
Petitions under Art. 32 of the Constitution of India for
enforcement of the fundamental rights.
V. Krishnamurti, S. K. Dholakia and J. B. Dadachanji, for
the petitioners (in both the petitions).
Niren De, Attorney-General, S. S. Shukla and S. P. Nayar,
for the respondents (in both the petitions).
The Judgment of the Court was delivered by
Ramaswami, J. In these writ Petitions under Art. 32 of the
Constitution a common, question of law arises for
determination, viz., whether the Mysore (Personal and
Miscellaneous) Inams Abolition Act, 1954 (Mysore Act 1 of
1955)is constitutionally valid.
The villages of Debur and Kappasoge in Mysore District were
Inam grants made to Bakshi Bhima Rao, the ancestor of the
petitioners. The inam grants were made by the Ruler of
3
Mysore State in recognition of the military services of
Bakshi Bhima Rao. The inam included not only the income
from the lands but from every kind of revenue including
excise and the right to treat all lands newly brought into
cultivation as the personal property of the Inamdars. The
Mysore (Personal and Miscellaneous) Inams Abolition Act,
1954 (Mysore Act 1 of 1955) (hereinafter called the impugned
Act) was passed by the-, Mysore Legislature and received the
assent of the President on the 18th March, 1955 and
published in the Mysore Gazette on 19th March, 1955. The
Act was subsequently amended by Mysore Act 7 of 1956 which
received the assent of the President: on 28th June, 1956 and
which was published in the Mysore Gazette on 5th July, 1956.
By virtue of a notification dated 2nd October, 1956 under
section 1 clause (iv) of the impugned Act,, the two inam
villages vested in the State of Mysore under section, 3 of
the impugned Act. Compensation of the various items was.
the subject matter of dispute between the petitioners and
the Special Deputy Commissioner who was appointed to assess.
compensation under the machinery of the Act. Awards of
compensation were made under sections 17 and 20 of the
impugned Act by the Special Deputy Commissioner. The peti-
tioners preferred Miscellaneous Appeals Nos. 89 and 130 in
the High Court of Mysore under section 31 of the impugned
Act. These appeals were heard and decided by the Mysore
High Court by a consolidated order of the 27th October,
1960. Against that decision two appeals were brought to
this Court in Civil Appeals, 196 and 197 of 1965. These
appeals were heard on 25th October, 1967. It was then
pointed out by the Court that the. constitutional validity
of the provisions of the Act cannot be challenged in the
statutory appeals in view of the decision of this Court in
K. S. Venkataraman & Co. v. State of Madras.(1) The
petitioners thereafter filed these writ petitions
challenging the constitutional validity of the Act.
The main contention raised by the petitioners is that the,
impugned Act does not provide for adequate compensation for
the property acquired, that the compensation provided for
was not a "just equivalent", in other words,.the market
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12
value of the property at the time of acquisition and there
was hence a violation of the guarantee under Art. 31(2) of
the Constitution. The impugned Act is entitled as an Act to
provide for the "abolition, of personal inams and certain
miscellaneous inams in the State of Mysore except Bellary
District". The preamble states that it is expedient in the
public interest to provide for the abolition of’ personal
inams and certain miscellaneous inams in the State of Mysore
except Bellary District and for other matters connected
therewith., Section 1(4) enacts that this section and
(1) [1966] 2 S.C.R. 229.
4
sections 2, 27, 38 and 40 shall come into force in respect
of any inam village, or minor inam in an unalienated
village, on such date as the Government may by notification
appoint. Section 3 provides for the consequences of’ the
vesting of an inam in the State and states as follows :-
"(1) When the notification under sub-section
(4) of section 1 in respect of any inam has
been published in the Mysore Gazette, then
notwithstanding anything contained in any
contract, grant or other instrument or in any
other law for the time being in force, with
effect on and from the date of vesting, and
save as otherwise expressly provided in this
Act, the following -consequences shall ensue,
namely :-
(a) the provisions of the Land Revenue Code
relating to alienated holdings shall, except
as respects minor inams to which this Act is
not applicable, be deemed to have been
repealed in their application to the inam; and
the provisions of the Land Revenue Code and
all other enactments applicable to unalienated
-villages shall apply to the said inam;
(b) all rights, title and interest, vesting
in the inamdar including those in all communal
lands, cultivated lands uncultivated lands,
whether assessed or not, waste lands, pasture
lands, forests, mines and minerals, ,quarries,
rivers and streams, tanks and irrigation
works, fisheries and ferries, shall case and
be vested absolutely in the State of Mysore,
free from all encumbrances;
Section 9 enacts
"Lands and buildings to vest in the
inamdar
(1) Every inamdar shall, with effect on and
from the -date of vesting, be entitled to be
registered as an occupant of all lands other
than-
(i) communal lands, waste lands,, gomal
lands, forest lands,tank beds, mines,
quarries, rivers, streams, tanks and
irrigation works;
(ii) lands in respect of which any person is
entitled to ’be registered under sections 4,
5, 6, 7 or 8; and
(iii) lands upon which have been erected
buildings owned by any person other than the
inamdar.
(2) Every building situated within the
limits of the inam which was owned immediately
before the
2
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12
date of vesting by the inamdar shall, with
effect on and from such date, vest in the
inamdar.
Explanation : In this section inamdar’ means
an inamdar other than a holder of a minor inam
referred to in section 7".
Section 17 provides as follows
"Amount of compensation payable : (1) Save as
otherwise provided in section 26, the total
compensation payable in respect of any inam
shall be the aggregate of the sums specified
below
(i) a sum equal to twenty times the amount
of land revenue payable in respect of land
held by kadim tenants and permanent tenants
entitled to be registered under section 4 and
section 5, respectively.
Explanation : where the land revenue is paid
in kind, the amount of land revenue for
purposes of this. clause shall be determined
on the basis of the market value prevailing on
the 1st day of January, 1954, of the crop or
crops paid as land revenue;
(ii) a sum equal to seventy five per centum
of the amount payable by the quasi-permanent
tenants of the inamdar under subsection (2) of
section 6 in respect of lands of which they
are entitled to be registered as occupants
under sub-section (1) of the said section 6;
(iii) a sum calculated at the rates specified
below in respect of lands referred to in
clause (iii) of subsection (1) of section 7 or
section 9;
(a) seventy five rupees per acre within the
municipal limits of the Cities of Bangalore,
Mysore and Davangere and within an area of one
mile from such, limits; and
(b) forty rupees per acre within the
municipal limits of the towns of Kolar,
Tumkur, Chitaldrug, Shimoga, Bhadravati,
Chickmagalur, Hassan and Mandya and the limits
of the Kolar Gold Fields Sanitary Board Area,
and within an area of one mile from such
limits; and
(c) twenty rupees per acre in all other
areas;
(iv) a sum equal to twenty times the jodi,
quitrent or other amount, if any, of like
nature, derived by the inamdar concerned from
persons holding minor inams under such
inamdar; and
6
(v) a sum equal to ten times the average net
annual income derived by the inamdar during a
period of five years immediately preceding the
date of vesting, from lands other than lands
referred to in clause (iii) and lands in
respect of which any person is entitled to be
registered under sections 4, 5, 6, 7, 8 and 9;
Provided that
(a) the income from sandalwood or any other
forest produce shall not be included in the
annual -income from forests unless the right
thereto was expressly conferred on the inamdar
by a competent authority;
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12
(b) the income from royalty on minerals or
from -mining lease shall not be included in
the annual in-come unless the right to such
minerals or mines was expressly conferred on
the inamdar by a competent authority and such
right was recognised under section 38 of the
Land Revenue Code;
(c) the income from ferries shall not be
included unless the right to such ferries was
expressly granted to the inamdar ’by a
competent authority.
On behalf of the petitioners learned counsel stressed the
argument that the inamdar of the estate was completely
deprived of any sort of compensation in regard to the
category of lands mentioned in section 9 ( 1 ) (1). It was
said that in regard to the permanent tenants, the
compensation was fixed at 20 times of the land revenue, but
in the case of quasi-permanent tenants the compensation is
75 per cent of the value payable by the quasi-permanent
tenants under section 6(2). That is to say, the Government
recovers a premium under section 6(2) at 40 times the land
revenue -and hands over 75 per cent as compensation to the
holder of the inam estate. It was contended that compen-
sation was not fixed on the basis of the market value on the
date of acquisition and that the guarantee embodied in
Article 31 (2) of the Constitution has been violated.
In support of this argument reference was made to the
decision of this Court in The State of West Bengal v. Mrs.
Bela Banerjee & Ors., (1) in which this Court observed that
while under Entry 42 List III the Legislature was given
discretionary
(1) [1954] S.C.R.558.
7
power to lay down the principles which should govern
determination of the amount to be given to the owner of the
property appropriated, Article 31(2) of the Constitution
required that such principles must ensure what is determined
as payable must be ’compensation’, i.e. a just equivalent of
what the owner has been deprived. Whether such principles
take into account all the elements which make up the true
value of the property appropriated and exclude matters which
are to be neglected is a justiciable issue to be adjudicated
by the Court. The Court, therefore, held in that case that
the West Bengal Land Development and Planning Act, 1948
which was enacted primarily for the settlement of immigrants
who had migrated into West Bengal due to communal
disturbances in East Bengal and which by section 8 provided
that the compensation to be awarded for compulsory
acquisition to the owner of the land was not to exceed the
market value of the land on 31st December, 1946 was ultra
vires of the Constitution and void under Article 31(2) of
the Constitution. At page 564 of the report the Court
observed as follows:-
" Turning now to the provisions relating to
compensation under the impugned Act, it will
be seen that the latter part of the proviso to
section 8 limits the amount of compensation so
as not to exceed the market value of the land
on December 31, 1946, no matter when the land
is acquired. Considering that the impugned
Act is a permanent enactment and lands may be
acquired under it many years after it came
into force, the fixing of the market value on
December 31, 1946 as the ceiling on the land
at the time of the acquisition is arbitrary
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12
and cannot be regarded as due compliance in
letter and spirit with the requirement of .
Article 31(2)".
In our opinion, this principle cannot apply in testing the
validity of the impugned Act in the present case. Article
31(2) before its amendment by the Constitution (4th
Amendment) Act reads as follows : -
"(2) No property, movable or immovable,
including any interest in, or in any company,
owning, any commercial or industrial
undertaking, shall be taken possession of or
acquired for public purposes under any law
authorising the taking of such possession or
such acquisition, ’unless the law provides for
compensation for the property taken possession
of or acquired and either fixes the amount of
the compensation, or specifies the principles
on which, and the manner in which, the
compensation is to be determined and given".
8
But Article 31A was added in the Constitution with retros-
pective effect by section 4 of the Constitution (1st
Amendment) Act, 1951 which provides as follows :-
"4. After Article 31 of the Constitution, the
following article shall be inserted, -and
shall be deemed always to have been inserted,
namely :
31A. Saving of laws providing for acquisition
of estates. etc.-(1) Notwithstanding anything
in the foregoing provisions of this Part, no
law , providing for the acquisition by the
State of any estate or of any rights therein
or for the extinguishment or modification of
any such rights shall be deemed to be void on
the ground that it is inconsistent with or
takes away or abridges any of the rights
conferred by, any provisions of this Part
Provided that where such law is a law made by
the Legislature of a State, the provisions of
this article shall not apply thereto unless
such law, having been reserved for the
consideration of the President, has received
his assent.
(2) In this article-
(a) the expression ’estate’ shall, in
relation to any local area, have the same
meaning as that expression or its local
equivalent has in the existing law relating to
land tenures in force in that area, and shall
also include any jagir, inam or maufi or other
similar grant;
(b) the expression ’rights’ in relation to
an estate, shall include any rights vesting in
a proprietor, sub-proprietor, under-
proprietor, tenure-holder or other
intermediary and -any rights or privileges in
respect ofland revenue".
Article 31A was amended again by section 3 of
the Constitution (4th Amendment) Act, 1955
with retrospective effect. Section 3 of the
Constitution (4th Amendment) Act reads, as
follows
"(a) for clause (1), the following clause
shall be, and shall be deemed always to have
been substituted, namely : -
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12
(1) Notwithstanding anything contained in
article 13, no law providing for-
(a) the acquisition by the State of any
estate or of any rights therein or the
extinguishment or modification of -any such
rights, or
9
(b) the taking over of the management of any
"property by the State for a limited period
either in the public interest or in order to
secure the proper management of the property;
or
(c) the amalgamation of two or more corpora-
tions either in the public interest or in
order to secure the proper management of any
of the corporations, or
(d) the extinguishment or modification of
any rights of managing agents, secretaries and
treasurers, managing, directors, directors or
managers or corporations, or of any voting
rights of shareholders thereof, or
(e) the extinguishment or modification of
any rights accruing by virtue of any
agreement, lease or licence for the purpose of
searching for, or winning, any mineral or
mineral oil, or the premature termination or
cancellation of any such agreement, lease or
licence,
shall be deemed to be void on the ground that
it is inconsistent with, or takes away or
abridges any of the rights conferred by
article 14, article 19 or article 3 1;
Provided at where such law is a law made by
the Legislature of a State, the provisions of
this article shall not apply thereto unless
such law, having been reserved for the
consideration of the President, has received
his assent; and
(b) in clause (2),-
(i) in sub-clause (a), after the word
’grant’ the words ’and in the States of
Madras and Travancore-Cochin, any janmam
right’ shall be, and shall be deemed always to
have been inserted.
(ii) in sub-clause (b), after the word
’tenure-holder’ the words ’raiyat, under-
raiyat’ shall be, and shall be deemed always
to have been, inserted.
In the present case, it is plain that under Article 31A as
introduced by the 1st Amendment to the Constitution or as
altered by the 4th Amendment, the impugned Act is protected
from -attack in any Court on the ground that it contravenes
the provisions of Article 31(2) of the Constitution. The
reason is that the impugned Act is a law providing for the
acquisition by the State of any estate or of any rights
therein or for the extinguishment or modification of such
rights as contemplated by Article 31A of the Constitution.
The impugned Act provides
L7 Sup. C.1.169-2
10
for acquisition of the rights of inamdars in inam estates in
Mysore State and it is intended to abolish all intermediate
holders who were termed as Superior holders and to establish
direct relationship between the Government and occupants of
land in the Inam Villages in respect of which notifications
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12
had been issued. The legislation was undertaken as a part
of agrarian reform which the Mysore State Legislature
proposed to bring about in the former State of Mysore. The
impugned statute, therefore, falls under the protection of
Article 31A of the Constitution and cannot be challenged on
the ground that Article 31 has been violated, that no
principle of compensation has been provided or that the
compensation provided for is illusory or inadequate.
On behalf of the petitioners Mr. Krishnamurthi in support of
his argument referred to the decision of this Court in State
of Madras v. D. Namasivaya Mudaliar and Ors. (1) in which
Madras Lignite (Acquisition of Land) Act (Madras Act XI of
1953) was held invalid on the ground that the provisions of
the Act relating to compensation violated Article 31(2) of
the Constitution as it stood before the Constitution (4th
Amendment) Act, 1955 and that the principle laid down in The
State of West Bengal v. Mrs. Bela Banerjee & Or s.(2) was
-applicable. Reference was also made to another decision of
this Court in P. Vajravelu Mudaliar v. Special Deputy
Collector, Madras & Anr.,(3) in which the question was
raised with regard to the validity of Land Acquisition,
Madras Amendment Act, 1961 (Madras Act 23 of 1961). In that
case the petitioners’ lands were notified for acquisition
for the purpose of housing schemes and the object of the
acquisition was slum clearance. In that case also it was
held by this Court that the principle of Bela Banerjee’s(2)
case should be applied and by virtue of Article 31(2) the
Legislature in making the law of acquisition must provide
for a "just equivalent" of what the owner has been deprived
of or specify the principles for the purpose of ascertaining
such "just equivalent" It was pointed out that the
comparative study of the principal Act and the Amending Act
showed that if land was acquired for a housing scheme under
the Amending Act, the claimant would get a lesser value than
what he, would get for the same or similar land acquired for
some public purpose under the Principal Act. The
discrimination between persons whose lands were acquired for
housing schemes -and those whose lands were acquired for
other public purposes could not be sustained on the
principle of reasonable classification and the Amending Act
clearly violated Article 14 of the Constitution and was
void. In our opinion, the ratio of the two decisions, in
State Of Madras v.
(1) [1964] 6S.C.R.936. (2) [1954]
S.C.R.558.
(3) [1965] 1 S.C.R. 614.,
11
D.Namasivaya Mudaliar & Ors. (1) and P. Vajravelu Mudaliar
v. Special Deputy Collector, Madras and Anr. (2) has no
application to the present case because those cases related
to legislation not dealing with agrarian reform and the
protection of Article 31A of the Constitution was not
available to either of the statutes challenged in those
cases.
We pass on to consider the next question raised on behalf of
the petitioners, namely, whether, the impugned Act was
beyond the legislative competence of the Mysore Legislature
under Entry 36 of List 11 to the 7th Schedule and Entry 42
of List III as those Entries stood before the 7th Amendment
of the Constitution. The argument maybe summarised thus :
Entry 36 of List 11 read with Article 246(3) of the
Constitution was obviously intended to authorise the State
Legislature to exercise the right of eminent domain i.e.,
right of compulsory acquisition of private property. The
exercise of such power has been recognised in Anglo-Saxon
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12
jurisprudence as conditioned by public necessity and payment
of compensation. All legislation in this country
authorising such acquisition of property from Regulation 1
of 1824 to Land Acquisition Act 1894 proceeded on that
footing. The existence of public purpose and the obligation
to pay compensation are, therefore, necessary concomitants
of compulsory acquisition of private property, and so, the
term "acquisition" must be construed as importing by
necessary implication the aforesaid two conditions. It is
also a recognised rule for the construction of statutes
that, unless the words of the statute clearly so demand, a
statute is not to be construed so as to take away the
property of a subject without compensation : ’Attorney-
General V. De Keyser’s Royal Hotel.(3) The power to take
compulsorily raises by implication a right to payment :
Central Control Board v. Cannon Brewery(4). The words
"subject to the provisions of entry 42, in List 111" in
entry 36 reinforce the argument, as these words must be
taken to mean that the power to make a law with respect to
acquisition of property should be exercised subject to the
condition that such law should also provide for the matters
referred to in entry 42, in other words, a two-fold
restriction as to public purpose and payment of compensation
(both of which are referred to in entry 42) is imposed on
the exercise of the law making power under entry 36. Entry
36 at the material time read as follows
.lm15
" Acquisition or requisition of property, except for the
purposes of the Union, subject to the provisions of entry 42
of List III".
Entry 42 was to the following effect
(1) [1964] 6 S.C.R. 936. (2) [1965] 1
S.C.R. 614.
(3) [1920] A.C. 508, 542. (4) [1919] A.C.
744.
12
"Principles on which compensation for property
acquired or requisitioned for the purpose of
the Union or of a State or for any other
public purpose is to be determined, and the
form and the manner in which such compensation
is to be given".
By the Constitution (7th Amendment) Act, 1956, Entries 36 of
List 11, 33 of List I were omitted and Entry 42 of List III
was altered and the altered entry reads as follows :
"Acquisition and requisitioning of Property"- it was however
pointed out on behalf of the petitioners that the amendment
was not retrospective and the validity of the impugned Act
must be tested by the language of entries 36 of List II and
42 of List III as they stood at the material time.
In our opinion, there is no substance in the argument. It
is true that under the common law of eminent domain as
recognised in Anglo-Saxon jurisprudence the State cannot
take the property of its subject unless such property is
required for a public purpose and without compensating the
owner for its loss. But, when these limitations are
expressly provided for in Article 31(2) and it is further
enacted that no law shall be made which takes away or
abridges these safeguards, ’and any such law, if made, shall
be void, there can be no room for implication, and the words
"acquisition of property" in entry 36 must be understood in
their natural sense of the act of acquiring property,
without importing into the phrase an obligation to pay
compensation or a condition as to the existence of a public
purpose. In other words, it is not correct to treat the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12
obligation to pay compensation as implicit in the
legislative entry 33 of List I or legislative entry 36 of
List II for it is separately and expressly provided for in
Article 31(2). The well-known maxim expressum facit cessare
tacitum is indeed a principle of logic and common sense and
not merely a technical rule of construction. The express
provision in Article 31(2) that a law of acquisition in
order to be valid must provide for compensation will,
therefore, necessarily exclude all suggestion of an implied
obligation to provide for compensation sought to be imported
into the meaning of the word "acquisition" in entry 36 of
List II. In the face of the express provision of Article
31(2), there remains no room for reading any such
implication in the legislative heads. The entries in the
Lists of the Seventh Schedule are designed to define and
delimit the respective areas of legislative competence of
the Union and State Legislatures. Such a context is hardly
appropriate for the imposition of implied restrictions on
the exercise of legislative powers, which are ordinarily
matters for positive enactment in the body of the
Constitution.
It was said that the words "subject to the provisions of
entry 42 of List 111" must be taken to mean that the law-
making power under entry 36 could be exercised subject to
the two conditions as
13
to public purpose and payment of compensation both of which
are referred to in entry 42. In our opinion, the contention
is unsound. The two entries are merely heads of legislation
and are neither interdependent nor complementary to each
other. These words in entry 36 mean no more than that any
law made under entry 36 by a State Legislation can be
displaced or overridden by the Union Legislation making a
law under entry 42 of List II. It is important to notice
that similar words do not occur in entry 33 of List I which
confers on Parliament the power to make laws with respect to
acquisition of property for the purpose of the Union. For
if these restrictive conditions as to public purpose and
payment of compensation are to be derived only from those
words, then it must follow that in the absence of those
words, Parliament can make law, authorising acquisition of
property without a public purpose and without a provision
for compensation. No reason was suggested why Parliamentary
Legislation with respect to such acquisition of property is
to be free from such restrictive condition, while State
Legislation should be subject to them. The true inference
is that the power to make law belonging to both Parliament
and the State Legislatures can be exercised only subject to
the aforesaid two restrictions not by, reason of anything
contained in the legislative entries themselves but by
reason of positive provisions contained in Article 31(2).
But as legislation falling within Article 31A cannot be
called in question in a Court of law for noncompliance with
those provisions such legislation cannot be struck down as
unconstitutional and void. In our opinion, counsel on
behalf of the petitioners is, unable to make good his
argument that the impugned Act was beyond the legislative
competence of the Mysore Legislature at the time when it was
enacted.
For these reasons we hold that the petitioners have made out
no case for grant of relief under Art. 32 of the
Constitution. These writ petitions accordingly fail and are
dismissed with costs. There will be one set of hearing fee.
V.P.S. Petitions dismissed.
14
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12