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Jagdish NaraIn Babulal Jaiswal Vs. Collector and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. Nos. 143, 144, 145 and 154 of 1960
Judge
Reported inAIR1962MP146
ActsMadhya Pradesh Accommodation (Requisition) Act, 1948 - Sections 3 and 14; ;Constitution of India - Articles 19(1), 31(2) and 245
AppellantJagdish NaraIn Babulal Jaiswal
RespondentCollector and ors.
Appellant AdvocateR.S. Dabir and ;V.S. Dabir, Advs.
Respondent AdvocateH.L. Khaskalam, Adv. for Respondent Nos. 1, 2 and 4
DispositionPetition dismissed
Cases ReferredManohar v. G.G. Desai
Excerpt:
- - all these conditions must be fully satisfied by the authority exercising the power under section 3 of the act, which, if that section had stood alone, would have been the state government. 6. i may, however, note that some kind of delegation will always be necessary if the power conferred by section 3 of the act on the state government is to be effectively exercised, because the expediency and necessity in the exercise of the power require an intimate knowledge of local conditions before action is taken, and this can only be available at the place where action is taken. in my opinion, the impugned orders, if otherwise legaland valid, will not fail on the ground that they were not made in conformity with the exercise of the powers conferred on the collector, damoh, under section 14.....naik, j. 1. my opinion in this case shall also govern the disposal of miscellaneous petitions nos. 144, 145 and 154 of 1960.2. all these petitions raise a common question of law, were heard together and can be disposed of by a common order. they are all directed against the orders of the collector, damoh, requisitioning the godowns of the petitioners for what he alleged was 'a public purpose', viz., for storage of government foodgrains. the orders have been passed in exercise of the powers conferred on all the collectors under section 3 of the madhya pradesh accommodation (requisition) act (no. lxiii of 1948) (hereinafter called the act), read with section 14 thereof by the state government vide home (general) department notification no. 2866/ii-a (3), dated the 3rd july, 1959. the.....
Judgment:

Naik, J.

1. My opinion in this case shall also govern the disposal of Miscellaneous Petitions Nos. 144, 145 and 154 of 1960.

2. All these petitions raise a common question of law, were heard together and can be disposed of by a common order. They are all directed against the orders of the Collector, Damoh, requisitioning the godowns of the petitioners for what he alleged was 'a public Purpose', viz., for storage of Government foodgrains. The orders have been passed in exercise of the powers conferred on all the Collectors under Section 3 of the Madhya Pradesh Accommodation (Requisition) Act (No. LXIII of 1948) (hereinafter called the Act), read with Section 14 thereof by the State Government vide Home (General) Department Notification No. 2866/II-A (3), dated the 3rd July, 1959. The petitions seek to get the said orders quashed by a writ of certiorari or by any other appropriate writ, order or direction, inter alia, on the following grounds, which are being considered first as they are common to all the cases:

1. The impugned orders are based upon the opinion of the Collector, Damoh, whereas the Act requires the opinion of the State Government as a condition precedent to the exercise of the power of requisition conferred by it.

2. The Madhya Pradesh Accommodation (Requisition) Act is void and unenforceable, being in contravention of the Constitution.

3. In my opinion, there is no substance in the first contention. Sub-section (1) of Section 3 of the Act, which is headed: 'Powers of requisition', provides as follows:

'If in the opinion of the State Government, it is necessary to requisition any accommodation for a public purpose it may, by an order in writing, requisition such accommodation and direct that the possession thereof shall be delivered within such period and to such servant of the State Government as may be specified in the order:

Provided that the period so specified shall not be less than fifteen days, from the, date of the service of the order:

Provided further that no building or part of a building exclusively used for the purpose of religious worship shall be requisitioned under this section.'

On reading this sub-section it becomes clear that the legislature has conferred the aforesaid power of requisition on the State Government, and that the exercise of the power by the State Government is conditioned by the following considerations, which must objectively exist before the power can be validly exercised:-

(a) There must be an accommodation which is not hit by proviso 2 to the sub-section.

(b) There must be a public purpose justifying the requisition in question.

(c) The State Government must be of the opinion that it is necessary to requisition the premises in question.

(d) The order must direct the delivery of possession to a specified servant of the State Government not earlier than fifteen days from the date of the service of the order.

All these conditions must be fully satisfied by the authority exercising the Power under Section 3 of the Act, which, if that section had stood alone, would have been the State Government.

4. Section 14 of the Act, however, Permits the State Government to delegate its powers under the Act to any officer or authority subordinate to it. It reads as follows:

'The State Government may by order direct that any power conferred under this Act, shall in such circumstances and under such conditions, if any, as may be specified in that direction, be exercised by any officer or authority subordinate to it.'

5. The legislature which conferred on the State Government the power to requisition, in its wisdom, also chose to confer on it a power of delegation, so that the power so conferred by it on the State Government may be exercised by the State Government itself or by any officer or authority subordinate to it as its delegate. The delegation made by the State Government in favour of the Collectors in exercise of the aforesaid power has the widest amplitude and permits a complete substitution of the delegate of the State Government in place of 'the State Government' in Section 3 of the Act. Whether it was wise or proper for the legislature to do so or whether it was a right policy for the State Government to have conferred such wide powers on the Collectors without specifying any circumstances or conditions under which the powers may be exercised by them may be, relevant in the context of Article 19(1)(f) of the Constitution, if that article applies, but cannot invalidate the exercise of the power by the delegate.

6. I may, however, note that some kind of delegation will always be necessary if the power conferred by Section 3 of the Act on the State Government is to be effectively exercised, because the expediency and necessity in the exercise of the power require an intimate knowledge of local conditions before action is taken, and this can only be available at the place where action is taken. It is also equally apparent that final decision regarding the necessity and expediency of the action will have to be taken on the spot as delay would defeat the very purpose for which the provision was being made.

7. However, at the moment, I am only concerned with the legality of the delegation under the Act and I am of opinion that the delegation to the Collectors under Section 14 of the Act is within the terms of the section and confers on the delegates, viz., the Collectors within their respective jurisdictions, all the powers which the State Government had under the Act and which naturally include the power to form an opinion as to the necessity for the requisition. The powers conferred under Section 3 of the Act comprise first a power to take a decision as to the four essentials (as detailed in paragraph 3 above) which are conditions precedent to the exercise of the power to requisition, and, secondly, the power to implement such a decision by executive action. The first power necessarily implies the power to form an opinion as to the necessity for requisition, and I find no warrant in the language of the Act for the suggestion that only the power of implementing a decision, already taken by the State Government, by executive action was being delegated.

8. The first contention, therefore fails. In my opinion, the impugned orders, if otherwise legaland valid, will not fail on the ground that they were not made in conformity with the exercise of the powers conferred on the Collector, Damoh, under Section 14 read with Section 3 of the Act.

9. The second contention is that the Madhya Pradesh Accommodation (Requisition) Act is void and unenforceable, being in contravention of the Constitution. The attack on the constitutionality of the Act is on these grounds:

(I) That the Act has to satisfy the twin requirements of being in conformity with the fundamental rights guaranteed under the provisions of Article 31(2) as well as the Provisions of Article 19(1)(f) of the Constitution and the impugned Act being in conflict with Article 19(1)(f) read with Clause (5) thereof is void and inoperative.

(II) That even if the operation of Article 19(1)(f) is not attracted in respect of matters covered by Article 31(2) the Act is still void and inoperative because it does not satisfy the other requirements of Article 31(2) of the Constitution.

(III) That in any case the impugned orders cannot be supported on the ground that the requisitions in question were for 'a public Purpose'.

10. It has recently been pointed out by the Supreme Court in States of Madras and Kerala v. M. Moopil Nair, AIR 1960 SC 1080 following their earlier decisions in Deep Chand v. State of U. P., AIR 1959 SC 648 and Basheshar Nath v. Commr. of Income-tax, Delhi and Rajsthan, AIR 1959 SC 149, that the combined effect of Articles 245, 246, 13 and 31 of the Constitution is that the law must satisfy two tests before it can be a valid law, namely (i) that the appropriate legislature has competency to make the law; and (ii) that it does not take away or abridge any of the fundamental rights enumerated in Part III of the Constitution, so that the law depriving a person of his property will be an invalid law if it infringes either Article 19(1)(f) or any other Article in Part III.

11. That case was specifically concerned with the interpretation of Article 31(1) of the Constitution after the Constitution (Fourth Amendment) Act of 1955. Therein it was specifically argued that Article 19(1)(f) must give place to Article 31(1) because the fundamental right of a citizen to acquire, hold and dispose of property is conditioned by the existence of property so that if he is deprived of that property by authority of law under Article 31(1) his fundamental right under Article 19(1)(f)disappears with it. Their Lordships repelled the aforesaid contention and held that a law depriving a citizen of his property shall be void unless the law so made complies with the provisions of Clause (5) of Article 19 of the Constitution.

12. In my opinion the aforesaid decision in Moopil Nayar's case, AIR 1960 SC 1080 (supra), has considerably changed the whole approach to the interpretation of Article 31 in relation to Article 19. It shall, therefore, reproduce the various steps in the reasoning of their Lordships which resulted in their repelling the aforesaid contention of the learned Attorney-General that Article 31(1) excluded the operation of Article 19(1)(f) and in holding that the law made depriving a citizen of his property must also conform to the provisions of Article 19(1)(f) read with Article 19(5) of the Constitution.

13. First, their Lordships generally stated the importance of the fundamental rights in the scheme of the Constitution and observed :

(i) That the fundamental rights have a transcendental position in the Constitution;

(ii) that any other Articles in the Constitution may exclude the operation of fundamental rights in respect of a specified matter (of this they cite Articles 31A and 31B as instances where it may be noted that the operation of Article 13 is specifically excluded);

(iii) that the fundamental rights may be excluded by implication; and

(iv) that before a construction excluding the operation of the fundamental right is adopted every attempt should be made to harmonise the two Articles so as to make them co-exist and, if it is not possible to do so, one can be made to yield to the other.

14. Then their Lordships note the law as it had developed with respect to the interpretation of Article 31 prior to the Constitution (Fourth Amendment) Act, 1955, and say that the unamended clauses of Article 31 were considered in State of West Bengal v. Subodh Gopal, 1954 SCR 587 : (AIR 1954 SC 92) wherein the contention that Section 7 of the Bengal Revenue Sales Act, 1859, was void as abridging Fundamental rights guaranteed under Article 19(1)(f) and Article 31(1) was not accepted in toto but only to the extent that the said section was void as infringing the provisions of Article 31. The reasoning on which the aforesaid conclusion was based was:-

(a) That Article 31(1) and (2) dealt with the same subject of eminent domain; and

(b) That under Article 31(2) a person must be deemed to have been deprived of property if he is substantially dispossessed or if his right to use and enjoy his property has been seriously impaired or the value of the property is materially reduced by the impugned law.

This view was subsequently followed in Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co., Ltd., 1951 SCR 674 : (AIR 1954 SC 119) and in the case of Saghir Ahmad v. State of U. P., 1955 SCR 707 : (AIR 1954 SC 728).

15. Their Lordships then note that the Constitution (Fourth Amendment) Act which came into force on 27-4-1955 gave no indication as to the interpretation of Article 31(1) though it did clarify;

(1) that the two sub-clauses of Article 31 dealt with two different topics--Article 31(2) with compulsory acquisitions and requisitions, and Article 31(1) with deprivation of property by authority of law;

(2) that the deprivation of property in Clause (1) o Article 31 covered cases other than acquisition and requisition of property by the State. (See para 23 of the judgment in Moopil Nayar's Case AIR 1960 SC 1080.)

16. Their Lordships then proceeded to consider the interpretation of Article 31(1) on its own terms and held that the deprivation of property must be by authority of law, 'that law must obviously mean valid law and that in view of Article 13(2) a law could not be valid unless it satisfied the two tests viz., of legislative competency and non-infringement of fundamental rights. They further held that the Operation of Article 19(1)(f) on a law depriving a citizen of his property was not excluded by implication because the principle of the interpretation of Article 21 as enunciated in Gopalan v. State of Madras, AIR 1950 SC 27 could not be applied to the interpretation of Article 31(1) by analogy for the reasons (1) that unlike Articles 19(1)(d) and 22, the Article 19(1)(f) and Article 31(1) deal with the same subject, namely, property; (2) that the two articles were not in pari materia; (3) that they differed in their scope and content; and (4) that they also differed in phraseology as also in their setting, for whereas Articles 21 and 22 constituted an integrated code in the matter of personal liberty, Article 31(1) did not. They also held that it was not necessary for the application of Article 19 that there must be in existence property which can be enjoyed and over which rights can be exercised.

Their Lordships repelled the contention based both on Gopalan's case, AIR 1950 SC 27 as well as op State of Bombay v. Bhanji Munji, (S) AIR 1955 SC 41 which in terms was also based on Gopalan's case, AIR 1950 SC 27 and held that though prior to the amendment it was possible to hold on the analogy drawn from Article 21 that when the property was acquired or requisitioned within the meaning of Article 31 the operation, of Article 19 was excluded but there was no scope for drawing such an analogy after the Constitution (Fourth Amendment) Act, 1955, as thereafter they dealt with two different topics. They, therefore, held that the decision in Bhanji's Case, (S) AIR 1955 SC 41 no longer held the field. Their Lordships also repelled the contention that Article 31(1) dealt with police powers, that without the existence of such power it was not possible to usher in a Welfare State and that so far as the rights to property were concerned the legislature could be trusted to respect those rights.

17. The above summary of Moopil Nayar's Case, AIR 1960 SC 1080 would show that not only has the Supreme Court held that if a law has for its object the deprivation of property of any person under Article 31(1) that law so far as it relates to citizens must also conform to Article 19 but that the contentions (1) that the fundamental right to acquire, hold and dispose of property was conditioned by the existence of property and (2) that a law depriving a citizen of property under Article 31(1) had not to conform to Article 19(1)(f) because it was in exercise of the police powers of the State, were untenable.

18. I shall now examine if there can be any reasonable basis for excluding Article 31(2) from the operation of Article 19(1)(f) in cases of property belonging to the citizen of India. In the first place unlike Article 31A, the language of Article 31(2) does not expressly exclude the operation of Article 19. I shall therefore consider whether it is excluded by implication. This could be on the analogy of the principles adopted by the Supreme Court in Gopalan's Case AIR 1950 SC 27 for the interpretation of Articles 21 and 22 vis-a-vis Article 19. In Moopil Nayar's Case, AIR 1960 SC 1080, recapitulating the aforesaid principles their Lordships said that they could be broadly summarized under three heads viz :

(1) to invoke Article 19(1), a law shall be made directly infringing that right;

(2) Articles 21 and 22 constitute a self-contained code; and

(3) the freedoms in Article 19 postulate a free man;

and held that applying those principles to the interpretation of Article 31(1) it could not be said that Article 31(1) was saved from the operation of Article 19(1)(f). I shall now examine if and how far those principles apply to the interpretation of Article 31(1).

19. Similar to Article 31(1), Article 31(2) also provides in a negative way that no property of any person shall be compulsorily acquired or requisitioned (i) save for a public purpose and (ii) save by authority of law which provides for compensation and either fixes the amount of the compensation or the principles on which and the manner in which it is to be determined and given.

20. It further provided that the expressions 'acquisition' and 'requisition' shall have the meanings assigned to them by Clause 2 (a) and that the inadequacy of compensation shall not be justiciable.

21. Therefore apart from the fact that Sub-clauses (1) and (2) now deal with two different and distinct topics, both relating to the same subject, namely, 'property' and both coveted by the principles of eminent domain and had not now to be construed as one integral whole, the fundamental requirement of the two clauses still remains the same, namely, that both the deprivation of property as well as compulsory acquisition and requisition of property had to be by authority o law; and as law means valid law, it must not in the case of citizens take away or abridge their fundamental rights. The fact that Sub-clause (2) also required that the law should be for a public purpose and should also provide for compensation did not save it from the operation of Article 13(2).

It is plain that all the three provisions, i.e., Article 19(1)(f), Article 31(1) and Article 31(2), deal with the same subject-matter, viz., 'property'. While under Article 19(1)(f) a citizen has a right to acquire, 'hold and dispose of property, Article 31(1) enables the State to make a law depriving him of that property, and Article 31(2) also enables the State to make a law for compulsorily acquiring or requisitioning it (which, is nothing but another mode of deprivation of property provided by the Constitution), subject to certain special requirements of that Article. Such a law, which provides for Compulsory acquisition or requisition, must therefore of necessity infringe the fundamental right given under Article 19(1)(f) so that the first criterion for the application of Article 19(1)(f) is satisfied.

22. The next criterion is whether like Articles 21 and 22, Article 31(2) constitutes a self-contained code. It appears that it was so construed prior to the Constitution (Fourth Amendment) Act, when Clauses (1) and (2) of Article 31 were held to form parts of an integral whole which had to be construed together. Since after the amendment, they have been held to deal with two different and distinct topics, though both under the general head 'property', for, whereas Clause (2) deals with deprivations of property by compulsory acquisition and requisition by the State, Clause (1) deals with deprivations of property 'in cases other than acquisition and requisition of property by the State'. In my opinion, in the context in which the two clauses occur, there is no material difference between the scope, contents and setting of these clauses to hold that while Clause (1) does not constitute a self-contained code, Clause (2) does. The observations of the Supreme Court, therefore, that Article 19 ...... cannot be construed on the basis of the construction placed upon Article 21' apply to the instant case also.

23. It may, however, be argued that if the Intention of the Constitution was that a law made on the subject of compulsory acquisition and requisition had to be tested on the touchstone of reasonableness, then the somewhat detailed provision of Article 31(2) in so far as it made the exercise of power under that clause subject to the existence of a public purpose, and to the provision for compensation would be redundant.

24. The argument is not without substance but in my opinion not conclusive.

In the first place while the provisions of Article 31 are general in nature and apply to all citizens and non-citizens alike--the provisions of Article 19(1)(f) only apply to citizens of India. Consequently there is nothing surprising, if the Constitution thought of providing additional safeguards mentioned in Article 19(1)(f) in cases of the property of the citizens of India, in addition to the general safeguards given to all persons alike under Article 31(2).

Secondly, it would be anomalous that the law restricting the rights of a citizen to property had to satisfy the test of reasonableness and yet if his property had to be compulsorily acquired, or requisitioned that could be done without any such limitation.

Thirdly, according to their Lordships of the Supreme Court, Article 19 could not be construed on the basis of the construction placed upon Article 21. It is also interesting to note that so far as Gopalan's case, AIR 1950 SC 27 was concerned, some of the Judges constituting the Constitution Bench were inclined to agree with the dissenting view of Fazl Ali J. if the question had been res integra, which indicated that the analogy of Gopalan's Case, AIR 1950 SC 27 could not be stretched any further.

Fourthly a the mere inclusion of the two conditions viz., the existence of public purpose and the provision for compensation subject to which the power conferred upon the State had to be exercised, could not make it a self-contained code especially as when viewed in its setting and context it did not deal with a subject materially different from the one dealt with in Article 19(1)(f).

And, lastly, as observed by their Lordships in Moopil Nayar's Case AIR 1960 SC 1080 before a construction excluding the operation of the fundamental rights is adopted every attempt should be made to harmonise the two articles so as to make them co-exist and in my opinion there is no such conflict between the two here that one must yield to the other.

25. The third criterion is whether Article 19 postulated the existence of property over which the rights could operate. This criterion was again held to be erroneous in Moopil Nayar's Case, AIR 1960 SC 1080 where the observations of Bose, J. in Bhanji's Case, (S) AIR 1955 SC 41 in that regard were expressly disaffirmed. Another reason why the application of Sub-clause (f) of column (1) of Article 19 was not conditioned on the existence of property is, as observed by the Supreme Court in Moopil Nayar's Case. AIR 1960 SC 1080, that it was inconceivable that law cannot restrict a citizen's right unless the restriction is reasonable and for a public purpose; and it cannot deprive him of such property without such a limitation. If this be so in the case of Clause (1) of Article 31, I do not see what justification there is for importing this anomaly when interpreting Clause (2) of Article 31. The result of holding that Article 19 was by implication excluded would be that in order to justify any restrictions, the law would have to conform with Article 19; but if it totally deprives a citizen of his property by acquiring Or requisitioning it compulsorily for the State, it would be free of such limitations.

26. I may here briefly notice the effect of the amendment of the Constitution brought about by the Constitution (Fourth Amendment) Act of 1955 to show that there was nothing therein which could have any effect on the interpretation I have sought to put on Article 31(2) of the Constitution. The object of the amendment was :

(i) to take acquisitions and requisitions as now defined in Clause (2-A) from out of the category of Clause (2) so that both clauses now dealt independently with different and distinct topics; which need not now be construed as one integral whole.

(ii) the obligation to pay compensation was now restricted to cases covered by Clause (2); and

(iii) the question of adequacy of compensation was made non-justiciable.

Beyond that the amendment did not in any way alter the concept underlying the two clauses and though they now dealt with two distinct topics, the subject-matter of the two clauses remained the same viz., the property and its deprivation.

27. I, therefore, see no justification whatsoever for cons-truing Article 31(2) in a way different from Article 31(1).

28. I am, therefore, of the opinion that the impugned law in the instant case must not only conform to the provisions of Article 31(2) but also must not take away or abridge the fundamental rights guaranteed to the petitioners who are citizens of India under Article 19(1)(f).

29. It is not disputed that if Article 19(1)(f) applies, the impugned law does take away or abridge the fundamental right guaranteed by that clause. It shall therefore have to be justified under Clause (5) which reads as follows:

'Nothing in Sub-clauses (d), (e), (f) and of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.'

I shall now examine if the impugned law imposes 'reasonable restrictions' in the interest of the general Public to be valid. A full and precise summary of what the phrase 'reasonable restriction' connotes has been given by patanjali Sastri C. J. in State of Madras v. V.G. Row 1952 SCR 597 at p. 607 : (AIR 1952 SC 196 at p. 200) in the following words:

'It is important in the context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.'

30. The learned counsel for the State did not seriously contest that it would be difficult to justify the impugned Act on this test and consequently I shall only briefly refer to these shortcomings :

(1) Under Section 3 of the Act unrestricted and unregulated power has been given to the State Government to exercise the power of requisitioning any premises whatsoever which is not hit by proviso 2 to Sub-section (1) of Section 3 and which in its opinion it considers necessary. It has also been given power under Section 14 of the Act to delegate its powers of requisitioning to whomsoever it likes and then the exercise of the power depends on the subjective satisfaction of the delegate. Further, no rules have been framed and no directions given to regulate or guide his discretion in any of these matters. There is nothing in the Act which could ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same. Such an unregulated or uubriddled power had been held to be bad in Dwarka Prasad v. State of U.P., AIR 1954 SC 224 and on a parity of reasoning must be held to be an unreasonable restriction upon the rights guaranteed under Article 19(1)(f) in the instant case also.

(2) There is no right of appeal revision or representation against the orders passed, nor is there any provision for hearing objections before taking a final decision.

(3) The impugned Act, in so far as it permits the requisitioning of any accommodation, goes far beyond the purpose for which it was enacted. There is nothing to show why occupied premises need be requisitioned, nor how the object could not have been achieved by leaving them out.

(4) Though the expression 'in the interest of the general public' has a very wide connotation, even so it has not been shown how the housing of the Government foodgrains was more in the interest of the general public than the housing of the other foodgrains of which the ownership vests in the different members of the public generally. I need not, however, dilate on this topic at this stage as I have examined this question in somewhat greater detail when examining the concept of 'public purpose'. I am, therefore, of opinion that the impugned Act is ultra vires Article 19(1)(f) of the Constitution and is accordingly void.

31. It may, however, be argued on the basis of paragraph 28 of the judgment of the Supreme Court in Moopil Nayar's case, AIR 1960 SC 1080 that that case expressly dealt with Clause (1) of Article 31 after the amendment and that it left untouched the law relating to Clause (2) of Article 31, so that to cases to which the latter clause applied, Article 19(1)(f) had no application.

32. Some support can be derived for this suggestion from the judgment of the Supreme Court in Babu Barkya Thakur v. State of Bombay (now Maharashtra), decided on 8-8-1960 ; (AIR 1960 SC 1203), wherein, in spite of the observations of their Lordships that the impugned Act (the Land Acquisition Act) was Saved from the operation of Article 31(2) by Article 31 (5) (a) as an existing law, their Lordships further Observed that the attack on that Act under Article 19(1)(f) was equally futile in view of the decision of that Court in Bhanji Munji's, case, (S) AIR 1955 SC 41 (supra), and Lilavati Bai v. State of Bombay, 1957 SCR 721: ((S) AIR 1957 SC 521). I shall, therefore, examine if the impugned Act can be held to be valid law as satisfying all the requirements of Article 31(2) on the footing that it being a self-contained code dealing with a subject different from that dealt with in Article 19(1)(f), excluded the operation of Article 19(1)(f) or that the fundamental right of a citizen to acquire, hold and dispose of property was conditioned by the existence of property so that if he was deprived of that property under Article 31(2), his fundamental right under Article 19(1)(f) disappeared with it.

33. This brings me to the second contention, viz., that even if the operation of Article 19(1) is not attracted in respect of matters covered by Article 31(2), the Act is still void and inoperative because it does not satisfy the other requirements of Article 31(2) of the Constitution.

34. I shall first briefly notice certain provisions of the Act, with which I shall be concerned in the discussion which follows. Section 3 of the Act, which I have detailed in paragraph 3 above, permits requisition of any premises except those which are covered by the second proviso thereto, provided there is a 'public Purpose' justifying the requisition and provided further that the State Government is of opinion that it is necessary to do so. Section 2 (d) of the Act, which is the definition clause, then attempts to define the connotation of the expression 'public purpose' by including in its ambit certain purposes which it Specifics therein. The clause reads as follows :

''Public Purpose' includes any Government purpose such as providing accommodation for the residence of a person holding office of profit under the State Government or for locating any public office of the State Government or any local authority or for storing Government foodgrains and allied purposes.'

35. In all the cases we have before us, the requisitions are for the purpose of 'storing of Government foodgrains', a purpose which has been included in the ambit of the expression public purpose' in Section 2 (d) aforesaid. The first question that arises for consideration is whether the impugned Act is a law providing for 'compulsory requisition' of property within the meaning of Article 31(2) of the Constitution.

36. In the instant case, there can be no dispute that right to possession is meant to be transferred to the State Government by the Act because,as long as the requisition order stands, right topossession shall vest in the State. It is true thatpossession is an attribute of property right andordinarily vests in the owner who has always aright to recall Possession of it from the person inpossession, subject to the provisions of the Transferof Property Act and the Contract Act governing therights of the parties. But, where a law vests theright of possession in the State against the willof the owner, there can be no doubt that a compulsory transfer of the right of possession of the owner or occupier takes place. At best it may besaid that right of possession of the owner or occupier is suspended as long as the order transferringthe right of possession is in force. I have therefore, no doubt that, under the Constitution (FourthAmendment) Act, 1955, the Act in question is governed by Clause (2) of Article 31 of the Constitution.

37. I shall now examine whether the requisitions in question fully satisfy the requirements of Clause (2) of Article 31 of the Constitution-

Under Clause (2) of Article 31, as it Originally stood before the Fourth Amendment, 'public purpose' was impliedly held to be an essential condition precedent to the exercise of the sovereign power of the State to compulsorily acquire or requisition the property of a person and consequently justiciable: (see State of Bihar v. Kameshwar Singh, AIR 1952 SC 252 at pp. 263, 272 and 288.) But, after the amendment, such a provision has no more to be imported by implication because now the power of compulsory acquisition or requisition cannot be exercised save for 'a public purpose'; and in the absence of it, any law which provides for compulsory acquisition or requisition of property would be unconstitutional.

38. I may, at the outset, mention that 'public purpose' being a requirement of the Constitution, its determination lies within the jurisdiction of the Courts. It is one of the conditions precedent for the exercise of the power of the State to compulsorily acquire or requisition private property, and it cannot be finally determined by it either legislatively or by executive fiat. No doubt, where a legislature declares that there is a 'public purpose' in any law providing for a requisition or acquisition of private property the Courts would respect its words, but its declaration in this respect will not be conclusive: (see AIR 1952 SC 252 (supra, at p. 295)). Cooly in his 'Constitutional Limitations', Vol. II, at P. 1140, says:

'The question what is a public use is always one of law. Deference will he paid, to the legislative judgment, as expressed in enactments providing for an appropriation of property, but it will not be conclusive.'

39. Consequently the provision in Clause (d) of Section 2 of the Act that certain purposes enumerated therein shall be included within the connotation of the phrase 'public purpose' as understood in the Constitution, cannot be final and conclusive; and we shall have to examine the concept in some detail in order to determine whether the condemnation of private property for those purposes can be justified on the ground of the avowed or any other 'public purpose'.

40. The question then arises what the expression 'public purpose' connotes;

Explaining why the State is said to possess this extraordinary power of 'eminent domain', Cooly at p. 1108 in Volume Two of his treatise on Constitutional Limitations says :

'Every sovereignty possesses buildings, lands, and other property, which it holds for the use of its officers and agents, to enable them to perform their public functions. It may also have property from the rents, issues, and profits, or perhaps the sale, of which it is expected the State will derive a revenue. Such property constitutes the ordinary domain of the State. In respect of its use, enjoyment, and alienation, the same principles apply which govern the management and control of like property of individuals; and the State is in fact but an individual proprietor, whose title and rights are to be tested, regulated, and governed by the same rules that would have pertained to the ownership of the same property by any of its citizens.

There are also cases in which property is peculiarly devoted to the general use and enjoyment of the individual citizens who composed the organized society, but the regulation and control of which are vested in the State by virtue of its sovereignty. The State may be the proprietor of this property, and retain it for the common use, as a means or contributing to the general health, comfort, or happiness of the people; but generally it is not strictly the owner, but rather the governing and supervisory trustee of the public rights in such property, vested with the power and charged with the duty of so regulating, protecting, and controlling them, as to secure to each citizen the privilege to make them available for his purposes, so far as may be consistent with an equal enjoyment by every other citizen of the same privilege.

In some instances these rights are of such a nature, or the circumstances are such, that the most feasible mode of enabling every citizen to participate therein may seem to be for the State to transfer its control, wholly or partially, to individuals, either receiving by way of augmentation of the public revenues a compensation therefor, or securing in return a release to the citizens generally from some tax or charge which would have rested upon them in respect to such rights, had the State retained the usual control in its hands, and borne the incidental burdens.'

Then again, quoting from the judgment in In re. Kansas City Ordinance No. 39, 946 (1923) 28 ALR 395 at Pp. 1139 and 1140, he says :

'.......No satisfactory definition of the term 'public use' has ever been achieved by the Courts Two different theories are presented by the judicial attempts to describe the subjects to which the expression would apply. One theory of 'public use' limits the application to 'employment'--'occupation'. A more liberal and more flexible meaning makes it synonymous with 'public advantage'--'public benefit.' ...... A little investigation will show that any definition attempted would exclude some subjects that property should be included in, and include some subjects that must be excluded from, the operation of the words 'public use' ....

As might be expected, the more limited application of the principle appears in the earlier cases, and the more liberal application has been rendered necessary 'By complex conditions due to recent developments of civilization and the increasing density of population. In the very nature of the case modern conditions and the increasing interdependence of the different human factors in the progressive complexity of a community make it necessary for the government to touch upon and limit individual activities at more points than formerly.'

41. Similarly Nichols in 'The Law of Eminent Domain, Vol. 2, paragraph 7.2 (3), at p. 440, says--

''Many courts have recognized the folly of attempting to lay down any hard and fast rule, and, while repudiating the dangerous doctrine that any enterprise which indirectly promotes the public welfare is necessarily a public use, have not attempted to confine the exercise of eminent domain to cases in which the public will have the right to use the property sought to be taken. It is now generally realized that only by the gradual process of judicial exclusion and inclusion, and by a study of the influences which have affected the development of the law upon this subject can an authoritative delimitation of 'public use' be attained.'

42. Though the expression 'public use' is not synonymous with the expression 'public purpose', the aforesaid observations are of considerable value for correctly appreciating the connotation of the expression 'public purpose' under our Constitution because the underlying concept in both the expressions is the same.

43. In Hamabai Framji v. Secretary of State, 42 Ind App 44 at p. 47 : (AIR 1914 PC 20 at p. 21) the Judicial Committee of the Privy Council also did not attempt to define the expression 'public purpose'. On the other hand, it approved the view of Batchelor, J., in Appeal No. 24 of 1910, dated 5-9-1911, ILR 39 Bom 279 (288) at p. 291 and said:

'They think the true view is well expressed by Batchelor, J., in the first case, when he says:

'General definitions are, I think, rather to be avoided where the avoidance is possible, and I make no attempt to define precisely the extent of the phrase 'public purposes' in the lease; it is enough to say that, in my opinion, the phrase, whatever else it may mean, must include a purpose, that is an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned'.'

44. Das, J., (as he then was, later Das, C. J.), in AIR 1952 SC 252 (supra), at pp. 289-290 cited with approval the judgment in ILR 39 Bom 279 : (AIR 1914 PC 20) (supra), and said:

'And it is well that no hard and fast definition was laid down, for the concept of 'public purpose' has been rapidly changing in all countries of the world. The reference in the above quotations to the 'general interest of the community', however, clearly indicates that it is the presence of this element in an object or aim which transforms such object or aim into a Public purpose. From what I have stated so far, it follows that whatever furthers the general interests of the community as opposed to the particular interest of the individual must be regarded as a public purpose.'

* * * * *'Our Constitution, as I understand it, has not ignored the individual but has endeavoured to harmonise the individual interest with the paramount interest of the community.'

* * * * *'The ideal we have set before us in Article 38 is to evolve a State which must constantly strive to promote the welfare of the people by securing and making as effectively as it may be a social order in which social, economic and political Justice shall inform all the institutions of the national life.'

* * * * *'The words 'public purposes' used in Article 23(2) indicate that the Constitution uses those words in a very large sense. In the never-ending race, the law must keep pace with the realities of the social and political evolution of the country as reflected in the Constitution.'

45. I am strongly of opinion that this extraordinary power of divesting a person of his estate against his will should be permitted only on the clearest proof of the 'public purpose', which alone can justify its exercise. This should be more so under our Constitution which has specifically guaranteed certain property rights as fundamental. No doubt, the Constitution itself has permitted their encroachment under certain circumstances, provided certain specified conditions are fulfilled. This has been done, in an attempt to strike a balance between social control and individual rights, and it should be our endeavour to harmonize the two conflicting rights.

46. How then, I ask myself, do I set myself about to determine whether a particular object is or is not for a 'Public purpose', bearing in mind the principle enunciated by their Lordships of the Judicial Committee and the Supreme Court that whatever else the phrase 'public purpose' may mean, it must include a purpose that is an object or aim in which the general interest of the community as opposed to the particular interest of the individual is directly and vitally concerned.

47. The first consideration strikes me is that whatever subserves to the basic or fundamental needs of an individual must necessarily subserve the interest of the society because there is no antithesis between the interest of the two so far as the basic or fundamental needs are concerned.

It appears to me that it is for this reason that our Constitution has been at pains to guarantee certain basic needs or rights as fundamental, not because social interests would be thwarted byguaranteeing those rights but because they wouldserve them better. Secondly, if there is no antithesis between the two interests and the problemis one Of harmonising the two seemingly differentinterests, it would be necessary to have an overall picture of the whole scheme with all the attendant circumstances relevant Jo the issue, because then alone a balancing of the two interestscould be attempted. In my view, public purposecannot be determined in an isolated aim or object de hors, from the whole purpose or the schemeof which it is a part. It may well be that anobject may serve the interest of the communityin one context, while that very self-name objectmay not be so in another context.

48. Examining the question, whether a monopoly in favour of the State was or was not conducive to the common welfare, the Judicial Committee of the Privy Council in Commonwealth of Australia v. Bank of New South Wales, 1950 AC 235 at P. 311 observed:

'.... their Lordships do not intend to lay it down that in no circumstances could the exclusion of competition so as to create a monopoly either in a State or commonwealth agency or in some other body be justified. Every case must be judged on its 'own facts and in its own setting of time and circumstances', and it may be that in regard to some economic activities and at some stage of social development it might be maintained that prohibition with a view to State monopoly was the only practical and reasonable manner of regulation. ...... (Underlining there in single quotation marks ' ' -- Ed. is mine).

These observations were cited with approval by Mukherjea, J., (as he then was) in AIR 1954 SC 728 at p. 738; and in my view they have full application in the instant case, also. Consequently, in order to determine 'public purpose' in a specified object, regard must be had to the facts of the case 'in its own setting of time and circumstances'.

49. Cooly at p. 1131 and p. 1138 in Volume Two of is Constitutional Limitations' says:

'The reason of the case and settled practice of free governments must be our guides in deter-mining what is or is not to be regarded a public use; and that only can be considered such where the government is supplying its own needs, or is furnishing facilities for its citizens in regard to those matters of public necessity, convenience, of welfare, which, on account of their peculiar character and the difficulty--perhaps impossibility --of making provision for them otherwise, it is alike proper useful, and needful for the government to provide.'

* * * * *'But accepting as correct the decisions which have been made, it must be conceded that the term 'public use', as employed in the law of eminent domain, has a meaning much controlled by the necessity, and somewhat different from that Which it bears generally.'

50. Similarly, in Corpus Juris Secundnm, Vol. 29, p. 828, it is laid down:

'Necessity combined with a public use must exist as conditions to the exercise of the power of eminent domain.

The necessities of an individual cannot control, but public necessity alone justifies the taking of private Property under the power of eminent domain, but it is not essential to the exercise of this right that the taking of the property in question should be absolutely necessary. However, it has been stated that the controlling consideration in determining whether land is taken for a public use is not the necessity of the use, not even the fact of use, but the right to use.'

51. In my opinion, the concept of necessity inheres in the concept of 'public purpose' under our Constitution also. It is one of the controlling considerations in the determination of 'public purpose', because, in order to determine whether a particular object or aim is for a 'public purpose', we have to examine the whole scheme of which the specified object or aim forms a Part in 'its own setting of time and circumstances'. But, this necessity has not to be confused with the necessity for the exercise of the power by the legislature, which is a political question--a question of legislative policy--with which the courts are not concerned.

The legislative determination of the necessity For the exercise of legislative power is conclusive unless the challenge be that there was a colourable exercise of the power. Necessity enters into the question once again--but here also the Court are not concerned--when the necessity of requisitioning a particular property by the authority legally empowered to do so under an Act authorising requisition is determined. This necessity is governed by executive discretion and will not be interfered with except on the ground of bad faith, fraud or abuse of discretion. The Courts shall thus not ordinarily embark upon an enquiry whether in any particular case there was necessity for the exercise of the power in respect of a Particular accommodation.

52. In my analysis, necessity thud enters into the question at three stages, and with two of them we are not ordinarily concerned. But, it would be erroneous to suggest that in considering 'necessity', when determining 'public purpose', we would be entering into the sphere of the executive discretion of the requisitioning authority and deciding the necessity of requisitioning a particular accommodation under the Act.

53. In ILR 39 Bom 279 : (AIR 1914 PC 20) (supra), the judgment of the Judicial Committee states that on being challenged as to what the public purpose was* the Government explained that --

'they wished for the ground in order to erect dwelling houses, which they could offer to Government officials at adequate rents for- their private, residence. Suitable houses for Government servants are not easily obtainable in Bombay; but it is not said that obtaining quarters of some kind is an impossibility.'

They then asked themselves a question;

'Is such a scheme a 'public purpose' within the meaning of the contracts contained in the lease and the sanad?' and answered it by saying:

'.... the whole of the learned judges, who are thoroughly conversant with the conditions of Indian life, say that they are satisfied that the scheme is one which will redound to public benefit by helping the Government to maintain the efficiency of its servants. From Such a conclusion their Lordships would be slow to differ, and upon its own statement it commends itself to their judgment.' (see pp. 46 and 47)

54. In AIR 1952 SC 252 (supra) Mahajan, J., (as he then was), who gave the judgment which had the approval of the majority (i.e., Mahajan and Chandrashekhara Aiyer, JJ.,) examined the whole scheme of the Act to determine the underlying 'public purpose' of the exproprietary legislation and said at p. 274:

'Now it is obvious that concentration of big blocks of land in the hands of a few individuals is contrary to the principle on which the Constitution of India is based. The purpose of the acquisition contemplated by the impugned Act therefore is to do away with the concentration of big blocks of land and means of production in the hands of a few individuals and to so distribute the ownership and control of the material resources which come in the hands of the State as to subserve the common good as best as possible.

In other words, shortly put, the purpose behind the Act is to bring about a reform in the land distribution system of Bihar for the general benefit of the community as advised. The legislature is the best judge of what is good for the community, by whose suffrage it comes into existence and it is not possible for this Court to say that there was no public Purpose behind the acquisition contemplated by the impugned statute. The purpose of the statute certainly is in accordance with the letter and spirit of the Constitution of India. It is fallacious to contend that the object of the Act is to ruin five and a half million people in Bihar. All lands in khas possession of all these persons have not been made the subject-matter of acquisition.

Their home-steads, their mineral wealth except mines not in operation have not been seriously touched by the provisions of the Act. Various other exemptions have also been made in their favour in the Act, apart from the provisions as to compensation which in the case of small zamindaris can by no means be said to he of an illusory character. It is difficult to hold in the present day conditions of the world that measures adopted for the welfare of the community and sought to be achieved by process of legislation so far as the carrying out of the policy of nationalization of land is concerned can fill on the ground of want of public purpose. The phrase 'public purpose' has to be construed according to the spirit of the times in which particular legislation is enacted and so construed, the acquisition of the estates has to be held to have been made for a public purpose.'

In this scheme taken in, its entirety, they did not consider that the acquisition of arrears of rent of deduction of 4 to 12 1/2 per cent from the gross assets as representing costs of work of benefit to the raiyat could be upheld as subserving any public purpose.

55. Similarly, Das, J., who with Patanjali Shastri, C. J., was in the minority and was in favour of upholding the whole of the Act in its entirety, adverting to this topic, said at p. 291:

'It is an entirely wrong approach to pick out a scheme of land reforms and say that that item is not supported by a public purpose. One may just as well say that there is no Public purpose in the acquisition of forest or of mines and particularly of undeveloped mines, for such acquisition has no bearing on a scheme of agrarian reforms in that it does not improve or affect the conditions of the tillers of the surface of the soil. This, I apprehend, is not the right Way of looking at things. 'The proper approach is to take the scheme as a whole and then examine whether the entire scheme of acquisition is for a public purpose''; (Underlining (here in single quotation marks ' '-- Ed.) is by me.)

56. In AIR 1954 SC 728 (supra), though the question of determination of a public Purpose was not directly involved, the case, is useful in so far as it gives us a workable principle for approaching such a question. In that case, the question was, whether monopoly in favour Of the State Government in respect of motor transport could be up-held. Their Lordships did not say that State monopoly was under no circumstances justified as conducive to general welfare of the public but what they said was (pp. 738-739):

'In the present case we have absolutely no materials before us to say in Which way the establishment of State monopoly in regard to road transport service in the particular area would be conducive to the general welfare of the public. We do not know the conditions of the bus service at the present moment or the conveniences or inconveniences of the public in regard to the same; nor we are told how the position is likely to improve if the State takes over the road transport services and what additional amenities or advantages the general public would enjoy in that event. We mention these matters only to show that these are relevant facts which might help the Court in coming to a decision as to the reasonableness or otherwise of the prohibition, but unfortunately there are no materials in the record relating to any one of them.'

57. In (S) AIR 1955 SC 41, the question was whether under the Bombay Land Requisition Act (No. 33 of 1948) as amended by Bombay Act (29 of 1950), a requisition for the purpose of housing the informants of suppressed vacancies and Government servants could be justified. Dealing with the question whether this object could be upheld on the ground that it subserved a public purpose, the Court said at pp. 45 and 46:

'In the present set of cases there is proof of a public purpose. It is given in the affidavits made on behalf of the State and in the subsequent orders just quoted, namely; to house the homeless. At that time the housing situation in Bombay was acute, largely due to the influx of refugees. Questions of public decency, public morals, public health and the temptation to lawlessness and crime, which such a situation brings in its train, at once arose; and the pubic conscience was aroused on the ground of plain humanity. A race of proprietors in the shape of rapacious landlords who thrived on the misery of those who could find no decent roof over their heads sprang into being.

Even the efficiency of the administration, was threatened because Government servants could not find proper accommodation. Milder efforts to cope with the evil proved ineffective. It was necessary, therefore, for Government to take more drastic 'steps and in doing so they acted for the public weal. There was consequently a clear public purpose and an undoubted public benefit.

The Constitution authorises requisitions for a public purpose. 'The purpose here, is finding accommodation for the homeless. If, therefore, a vacancy is allotted to a person who is in fact houseless, the purpose is fulfilled.' It might be possible to attack a given allotment on other grounds, such as fraud, invidious discrimination nepotism, bribery or corruption; but none of that is alleged here. All that is said is that there was no public purpose.

A wide discretion must be left to Government to carry out the policy of the Act. If the number of vacancies is small and the number of the homeless large, it is evident that there must be some picking and choosing. So long as this is 'done on broad lines of principle and reasonably, the Courts cannot interfere simply because other methods are also possible,' even if the Courts think they are letter, for in the end Government must be left to determine which of may possible schemes is the best'

(Underlining (here in single quotation marks' '-- Ed.) is mine),

58. In (S) AIR 1955 SC 810, it was held that in requisition of 'accommodation under the Bombay Land Requisition Act, 1948 (No. 23 of 1948) for housing a member of the staff of a foreign consulate was for a Public purpose; and in (S) AIR 1956 SC 294, under the same Act, e. g., the Bombay Land Requisition Act, 1948, a requisition for housing an officer of the State Road Transport Corporation was upheld as a requisition for a public purpose, it is well to remember that the scheme of the Act had been examined by the Supreme Court in Bhanji Munji's case, (S) AIR 1955 SC 41, (supra), and the scheme being for housing the homeless from out of all vacant or otherwise available accommodation the requisitions for housing a foreign consulate as well as for housing an employee of a public utility concern were upheld. In the latter case, Imam, J., delivering the judgment of the Court observed at p. 297;

'An examination of these 42 Ind App 44 : (AIR 1914 PC 20), (S) AIR 1955 SC 41 and (S) AIR 1955 SC 810 and other cases leads us to the conclusion that it is impossible to precisely define the expression 'public purpose'. 'In each case all the facts and circumstances will require to be closely examined in order to determine whether a 'public purpose' has been established'.

'Prima facie the Government is the best Judge as to whether 'public purpose' is served by issuing a requisition order, but it is not the sole judge.

The Courts have the jurisdiction and it is their duty to determine the matter whenever a question is raised whether a requisition order is or is not for a 'public purpose'. The cases of ILR 39 Bom 279 : (AIR 1914 PC 20); (S) AIR 1955 SC 41 and (S) AIR 1955 SC 8.10 (supra), are merely illustrative.''

(Underlining (here in single quotation marks ' '-- Ed.) is mine.)

59. A careful reading of the aforesaid cases shows that in order to determine a 'public purpose' underlying a specified object of requisition, the whole scheme shall have to be carefully examined in its own setting of time arid circumstances. If the scheme is of agrarian land reforms, the ownership of an individual in forests, mines, waste lands, etc., may be expropriated, which otherwise may not be permissible if taken by it-self.

Similarly, if the scheme is of housing the homeless, any vacant or available accommodation may be requisitioned for housing persons who are homeless, of whom the legislation may first choose servants of the Government of public utility concerns or of foreign consulates as persons needing preferential treatment because in the first case the Government is vitally concerned with the efficiency of its servants and it would be to its benefit to have such servants, who have proper living accommodation for them; in the second, the trade interest of the State was served in the effective discharge of his duty by a foreign consul who would be connected with such trade or commerce; and, in the third, the interest of the community required that employees of a public utility corporation are properly housed so that they may morel effectively discharge their duties.

60. What purpose, however, would be served if for housing a Government servant another person, who is peacefully housed, is to be made homeless? To feed a hungry is an admirable public purpose; but if it is to be done by starving somebody, it shall cease to be a public purpose. In my opinion, therefore, to house a homeless would be a public purpose so long as the available or vacant accommodation is requisitioned to house him as is the case with the Bombay Act. But if in the process persons in peaceful occupation of their houses are to be made homeless, then the mere housing of Government servants will not be supportable as a public purpose.

61. It is pertinent to note that the Act legally permits the requisitioning of any accommodation which Section 2 (a) of the Act defines as meaning, 'any building or part of a building' and including 'the garden, grounds and out-Houses) if any, appertaining to such building or part of building, and any fittings or fixtures attached to any such building or part of such building or any furniture supplied by the owner for use in such building or part of building'. So that an occupied residential house or building otherwise legitimately occupied by an owner or occupier could be requisitioned at the sweet will of the Collector irrespective of the hardships caused to the Owner or the occupier. To permit a result so far-reaching as this, strongest possible proof of 'public purpose' would be needed and it is no answer to say that we must trust to the good sense of the requisitioning authorities as a safeguard, against its possible misuse by them. In my opinion, compensation is not a panacea for all the hardships involved in such transactions, and it is for this reason that apart from the provision for compensation, the Constitution also requires the existence of a 'public purpose' to justify the exercise of such a poster.

62. In the instant case, the expression 'storage of Government foodgrains' by itself in too laconic and incomplete a statement to justify a 'public purpose', because, unless the whole scheme is known of which this storage forms a part, it cannot be said that such storage would always necessarily subserve a public purpose. It may or it may not, according to the conspectus of all the relevant fact and circumstances'.

63. NOW, broadly speaking, irrespective of all other considerations, and taking the scheme as involving the requisitioning of godowns only, I do not see how the Government grain needs any greater protection than the grain of any resident of this country and how the State could throw out the grain of a person to house its own. I confess that if this were the law, irrespective of time and circumstances justifying its absolute necessity, the executive fiat of the Government could throw out the goods of an individual from his godown may ask him himself to vacate the premises in his occupation and practically stand under a tree in order to house its own grain, and all our guarantees of fundamental rights would be a mockery and a sham. The inclusion of this item, therefore, in Clause (d) of Section 2 of the impugned Act would not per se make it a public purpose; and in so far as the definition in that clause admits of no exception or explanation, the provision is ultra vires the Constitution and is void. This, however, does not conclude the matter because the State Government may yet show, that the requisitions in question were for Public purpose.

64. Mahajan, J., (as he then was) has laid down in Kameshwar Singh's case, AIR 1952 SC 252 (supra), that --

''It is unnecessary to state in express terms in the statute the precise purpose for which property is being taken provided from the whole tenor and intendment of the Act it could be gathered that the property was being acquired either for purposes of the State or for purposes of the public and that the intention was to benefit the community at large.' (see p. 274).

Consequently, as held by Bose, J., in Bhanji Munji's case, (S) AIR 1955 SC 41 the Act having authorised a requisition for a 'Public purpose' in Section 3 thereof, will not fail, because if chose to include within the ambit of 'public purpose' items which per se would not fall under it Similarly the requisition orders also would not fail, if they chose to specify the 'public purpose' in terms of the Act. Again, as pointed out by Bose, J., in Bhanji Munji's case, (S) AIR 1955 SC 41:

'It is not necessary to set out the purpose of the requisition in the order. The desirability of such a course is obvious because when it is not done proof of the purpose must be given in other ways and that exposes the authorities to be kind of charges we find here and the danger that the Courts will consider them well founded. But in itself an omission to set out the purpose in the order is not fatal so long as the facts are established to the satisfaction of the Court in some other way. The underlying principle of our decision in Biswabhusan Naik v. State of Orissa, AIR 1954 SC 359 applies here.' (see p. 45).

65. It is, therefore, plain that the specific mention of the purpose (as being for 'storage of government foodgrains') in the order does not conclude the matter and the State Government could still give us a scheme, of which the requisition in question were but a part, in order to justify the object in question to be a 'public purpose'. In my opinion, under the circumstances of the case, the non-mention of the scheme is on par with an incomplete mention or a non-mention and consequently unless the State Government could justify the requisitions in question by proof of facts in some other way to the satisfaction of the Court, the requisition orders must be held to be invalid.

66. In the affidavits of the respondent-State the public purpose underlying the requisitions in question is stated as follows;

'.... the collection and the storage of food-grains is undertaken by the State Government under its scheme of fair distribution of foodgrains to deficit areas. Under this scheme the foodgrains, whenever and to whomsoever supplied are to be supplied at the actual price Plus the incidental charges and there is no profit motive. The question of State trading does not arise in this case and purpose of storage of foodgrains is clearly a public purpose as contemplated and defined in the Act.'

67. It would be apparent that the information supplied is very inadequate for me to determine whether the requisitioning of occupied accommodations in the district of Damoh for the purpose of storing Government foodgrains would be conducive to the general interest of the community as opposed to the particular interest of individuals. We are not told the grain position at the present moment, nor the deficit areas, nor the conveniences or inconveniences of the public in regard to the same. We are not told how and where-from the grain is being procured nor why it is not being stored with the sellers from whom the purchases are being made. We do not know why it is necessary to bring the grain to Damoh town and then to store it in the godowns of merchants thereby getting them vacated. We are also not told what is to become of the grain and goods of the persons who are being asked to remove them within a fortnight of the service of the requisition orders. We do not know what the position of, accommodation of godowns in Damoh town is and why it is not possible to requisition vacant and available accommodation for the purpose, nor whether it is impossible or absolutely impracticable to store the foodgrains in question in any other place except by the requisitioning of the occupied godowns and that the advantage to the public by these requisitions would far outweigh any inconvenience, damage or loss to the merchants whose godowns are being requisitioned.

In my opinion, the simple ipse dixit of the respondent State that the 'collection and the storage of foodgrains in undertaken by the State Government under its scheme of fair distribution of foodgrains to deficit areas' on a non-profit basis cannot make it a 'public purpose', unless it is established that the requisition of every kind of accommodation as defined in the Act, occupied or unoccupied, occupied as a human dwelling, for a business or for storing of goods, was either necessary or justified in order to successfully implement the scheme reasonably. Once the scheme is disclosed permit such a course, it is no answer to say that the Collector would not exercise his discretionary powers unreasonably.

68. Therefore, providing accommodation for Government foodgrains in a scheme which permits the throwing out of the goods or grains of an individual owner without justifying it as either necessary or desirable cannot be a 'public purpose' unless by reason of the location, size and other relevant considerations, which have, not been disclosed to us, the requisitioning of accommodation in the occupation of citizens is the only mode which, can reasonably best serve the object namely the storage of Government foodgrains. As the requisitioning authority has to justify the challenged requisitioning on the ground, of 'public purpose', which has to be ascertained by the Courts on all the relevant data given by the authorities, I am of opinion that the object or aim namely 'storage of foodgrains' in the scheme as disclosed is not justified on the ground of 'public purpose'. The requisition orders in question shall thus fail on this ground.

69. I shall however examine each case separately also to ascertain if the impugned requisition orders were for a 'public purpose' on the footing that only vacancies or unoccupied accommodation were in fact being requisitioned.

Miscellaneous Petition No. 143 of 1960.

70. The petitioner in this case is admittedly the owner of an oil mill and uses the requisitioned premises, which he has taken on lease from respondent No. 3, for storage of seeds and oilcakes. He has alleged on affidavit that the contents of the godown--which from a letter on record appear to be about 700 bags--are pledged with the State Bank. The fact is not admitted by the respondent requisitioning authority on the ground that he did not say so orally to him nor did he state that tact in his application to him. This kind of denial has no value. The further allegation in reply that the petitioner had another godown of lesser storage capacity which he offered to the State Government in place of the requisitioned godown, if anything, shows the bona fides of the petitioner and cannot, and does not, justify the requisitioning order in question. In my opinion, the requisition to question cannot be justified on the ground of 'public purpose'. The impugned order shall, therefore, have to be quashed. The costs of this petition shall be paid by the respondents 1 and 2. Counsel's fee Rs. 100/-.

Miscellaneous Petition No. 144 of 1960.

71. The petitioner in this case is admittedly the owner of a firm carrying on business as grain merchant and uses the requisitioned premises for storing grain. The respondents, however, denied that the godown in question, which is admittedly situated behind the shop of the petitioner, is absolutely necessary for the running of the business or that he will have to dose his business and lose the means of his livelihood if the requisition, order in respect of the godown stands, or that his grain will have to be thrown on the streets as he has no other place for the storage of his grain. This kind of bare denial can, hardly carry conviction when once it is admitted that the petitioner is a grain merchant and uses the requisitioned godown for storing his grain. I do not see how, under the circumstances of the case, getting his godown vacated for storing Government foodgrain would be for a 'public purpose'. Similarly, the petitioner alleged that the contents were pledged with the Central Bank of India. This again was not admitted for a reason exactly similar to the one in the last. In my opinion, such a denial has no value. As the initial burden of justifying the requisition in question for a Pubic purpose Jay on the requisitioning authority, which it has not been able to discharge, the petition shall have to be allowed with costs. Counsel's fee Rs. 100/-.

Miscellaneous Petition No. 145 of 1960.

72. The petitioner is an agent of the firm. Heerji Govindji and Co. and looks after the work, of the firm at Damoh. He alleged that the go down No. 455, e. g., the requisitioned godown, was stored with grain to its fullest capacity. This fact was, however, denied by the respondents who alleged that only a few bags were stored in the godown when the requisition order was passed. The number of bags was not specified. The petitioner, on 30-5-1960, filed another affidavit in reply and stated that on 8-4-1960 the godown in question had 1,122 bags of grain, and on 16-4-1960 it had 1,821 bags of grain, and that on the date-of the affidavit it had 3,645 bags of grain as against its total storage capacity of 4,000 bags, it is not the case of the respondents that the storage of the grain by the petitioner in his godown was a colourable device to defeat the requisition Order. It is further clear from the petitioner's affidavit that he had no other grain godown where this grain could be stored. The petitioner admitted that he was negotiating for the sale of the godown to the Warehouse Corporation which had also agreed to permit the grain of the petitioner remain there. Whatever that may be, 1,122 bags cannot be called a few bags and in any case, the godown in question cannot be said to be an unoccupied or vacant godown, to warrant the inference that the interest of the community would be better served by storage of Government foodgrains therein to the exclusion of the grain of the petitioner, whatever its quantity.

73. In this case a further question was raised that the Act was unconstitutional on the ground that it contravened the provisions of Article 19(1)(g) of the Constitution. There can be no denying the fact that in conceivable cases where the requisition of an accommodation results in the stoppage of the business or the profession of owner, the Act will have to be justified on the ground of Article 19(6) of the Constitution. Also, again inconceivable cases, the deprivation by the State of a godown may result in the deprivation of the business of the owner, and in that event as there is no provision for compensation in the Act for such deprivation of property (the property being in the business), the Act would be unconstitutional as contravening Article 31(2) of the Constitution. I, however, do not think that the Act would be bad on this score. I had occasion to examine the question in the Burhanpur Tapti Mills, Ltd. v. State of Madhya Pradesh, L. P. A. No. 55 of 1958, D/-27-11-1959 (MP) and in view of my opinion expressed therein I hold that the Act would not fail but that any user of the Act which brings about such a result would be struck down as unconstitutional. I need not discuss the question further as, in my opinion, the petition fails on the ground that the requisition in question is not for a 'public purpose'.

74. The petition shall, therefore, have to be allowed with costs. Counsel's tee Rs. 100/-.

Miscellaneous Petition No. 154 of 1960.

75. The petitioner in this case is a partnership firm doing bidi business at Damoh. The godown under requisition was not completed when the requisition order was passed and consequently it may, with some show of reason, be said that the interest of the community would be better served by storing Government foodgrain therein than the particular interest of the individual in leaving it to him for his use if and when necessary for storing his bidi leaves. At the moment, no goods--let alone any grain--of the petitioner were being made shelterless; nor is there any allegation that the said requisition was completey depriving him of his business. The respondents alleged that the petitioner had constructed two godowns of which one only had been requisitioned, and there is no affidavit to the contrary. As vacant accommodation was being requisitioned for storage of Government foodgraing and as I may take judicial notice of the fact that our country is deficit in foodgrain products and consequently it was in the public interest to conserve whatever foodgrains we have, and as the need to provide accommodation for foodgrains (to whomsoever they may belong), which otherwise may remain, exposed to inclemencies of weather, is a dire necessity of the moment, the requisition of the accommodation in question could have been justified on the ground of 'public purpose' in this case, provided the scheme had been to requisition vacancies only. However, as have already held that the Act was unconstitutional as infringing the fundamental rights guaranteed under Article 19(1)(f) of the (Constitution, and as the scheme as unfolded in the affidavit (in the return) did not disclose a 'public purpose', this petition shall also have to be allowed with costs. Counsel's fee Rs. 100/-.

Newaskar, J.

76. I have had the advantage of rending the opinion prepared by my brother Shrivastava, J., and I must say that I generally agree with his reasoning and conclusions. But I should like to express myself thus--

77. These are four petitions Nos. 143, 144, 145 and 154 of 1960 under Article 226 of the Constitution for the issue of writs of mandamus for quashing the orders passed by the Collector Damoh requisitioning the premises of the petitioners in purported exercise of powers under Section 3 of the Central province and Berar Accommodation (Requisition) Act, 1948, (hereinafter called 'The Act') delegated to him under Section 14 of the Act under a Notification issued by the Government The impugned orders in Misc. Petitions Nos. 143 and 145 of 1960 were passed on 16-4-1960 while those in Misc. Petitions Nos. 144 and 154 of 1960 were passed on 25-4-1960.

78. The grounds on which the action of the Collector is sought to be assailed are the following.

1. Sections 3 and 14 of the Act as amended by the M. P. Act No. 12 of 1959 are ultra-vires the Constitution inasmuch as they contravene fundamental right of the petitioners under Article 19(f) and (g) of the Constitution as the said provisions have the effect of placing unreasonable restrictions upon the petitioners' right:-

(i) 'to hold and dispose of property' and;

(ii) 'to carry On any trade or business' any where they like.

2(a). The aforesaid provisions contravene fundamental right of the petitioners guaranteed under Article 31(2) 6f the Constitution as amended by the Constitution Fourth Amendment Act, 1955, since there is no public purpose served by requisitioning premises for storing Government food-grains.

(b) The definition of 'Public purpose' as given in the amended provisions of the Act is not in accord with what is contemplated as public purpose under the terms of the Article 31(2) of the Constitution.

3. Assuming that the aforesaid provisions are not ultra vires the Constitution the Collector Damoh could not have directed requisition of the premises in question on his Own opinion as the duty of forming opinion as regards the need to requisition premises for a public purpose vests exclusively in the State Government and that power neither could nor has been delegated to him.

4. There is colourable exercise of powers by the Collector in these cases since, even if it be assumed that storing of Government food grains is a public purpose, ulterior motive in requisitioning the premises of the petitioners is to stifle their private trade and thereby benefit State Trading in food grains to the prejudice of private traders.

5. The power is not duly exercised having regard to the entire circumstances including the nature of available accommodation, need of the petitioners and the State and after a proper enquiry in which the petitioners had an opportunity of hearing.

79. In order to appreciate these contentions of the petitioners with reference to these grounds it will be material to set Out material parts of sections 3 and 14 of the Act:-

Section 3--'If, in the opinion of the State Government, it is necessary to requisition any accommodation, for a public purpose it may, by an order in writing, requisition such accommodation......'

Section 14: --'The State Government may by order direct that any power conferred underthis Act, shall in such circumstances and under such conditions, if any, as may be specified in that direction, be exercised by any officer or authority subordinate to it.'

79a. The term public purpose' as used in Section 3 is defined in the Act under Section 2 (d). That definition is:-

' 'Public purpose' includes any Government purpose such as providing accommodation for the residence of a person holding office of profit under the State Government or for locating any Public office of the State Government or any local authority or for storing Government foodgrains and allied purpose.

80. It is clear from these provisions that under Section 3 of the Act any accommodation can be requisitioned if the Government be of the opinion that such requisitioning is needed for a public purpose, as defined in Section 2 (d) of the Act and that this power of the Government of requisitioning premises for a public purpose can be delegated by it under Section 14 of the Act to any subordinate officer or authority chosen by it.

81. In the present case there is no dispute that the State Government has by issuing a notification conferred the power possessed, by it under Section 3 of the Act to the Collector of the District.

82. We have therefore to consider, in view of the grounds raised in the petitions, whether these provisions of the Act are ultra vires the Constitution and if not whether on the terms of these provisions of the Act itself the action of the Collector is lawful and proper or has not been exercised in good faith.

83. We shall, therefore take the grounds raised, as stated above, for consideration seriatim.

84. As regards the first ground regarding unconstitutionality of Sections 3 and 14 of the Act with reference to Article 19(f) and (g) of the Constitution read with Article 19(5) the contention raised on behalf of the petitioners is that these provisions have the effect of trenching upon the fundamental rights of the petitioners 'to hold and dispose of their property without any let or hindrance and 'to carry on any trade or business' where-ever they want to do and that therefore their validity can only be tested by the touch-stone of reasonableness of restrictions thereby Put upon those rights in the interest of general public. On a careful scrutiny of the scheme of the Act and particularly these provisions, it is urged, it would appear that the restrictions imposed upon the owners of premises are unreasonable.

85. There is no machinery Provided for controlling the, very drastic and unbridled powers conferred upon the Government and its delegate. Either of them can exercise those powers purely on the basis of their subjective decision. This subjective decision or opinion of theirs, it is said, is incapable of being scrutinised or assailed in many cases either for its impropriety or its male-fide character. Moreover the owners can say nothing as to this. They have no right to be heard. Thus their property is at the mercy of the Government. Reliance in this connection is sought to be placed upon the decisions reported in AIR 1052 SC 196, Raghubir Singh v. Court of Wards Ajmer, AIR 1953 SC 373, Mineral Development Ltd. v. State of Bihar, AIR 1960 SC 468, Hamdard Dawakhana v. Union of India, AIR 1960 SC 554, Superintendent, Central Prison v. Dr. Ram Manohar Lohia, AIR 1960 SC 633.

86. Now as regards this contention based on Article 19(1)(f) of the Constitution position prior to the passing of the Constitution (Fourth Amendment) Act 1955, was that whereas Article 19(1)(f) provided for a fundamental right of a citizen to acquire, hold and dispose of property Article 31 provided for a safeguard, against its deprivation subject to certain limitations. Article 31(1) provided that no person shall be deprived of his property save by the authority of law and Article 31(2) provided for limitation upon the legislative power of the State or the Centre. That provision forged two limitations (1) the deprivation in the form of acquisition or taking possession of any property of a person should be for public purpose and (2) the law itself must provide either for the amount of compensation to be paid therefor or must at any rate provide for the principle on which and the manner in which it could be determined and given to the person deprived of his property.

87. It was consequently held by the Supreme Court in a series of cases including AIR 1950 SC 27, AIR 1954 SC 92, AIR 1954 SC 119, (S) AIR 1955 SC 41, that Article 19(1)(f) and Article 31 deal with different subjects and cover different fields and that there is no overlapping. The former, it is said, postulates existence of property which can be enjoyed or over which rights can be exercised. For if such were not the case restrictions contemplated in Clause (5) of Article 19 cannot come into play. If there is no property acquired, held or disposed of no restriction can be imported upon the rights to acquire, hold and dispose of such property. This would be the case not only where there is no property at all but also where what is left is mere husk of title. It may be mentioned here that Bhanji Munji's case, (S) AIR 1955 SC 41 was a case of requisition of premises. If the principle of decision in Bhanji Munji's case, (S) AIR 1955 SC 41, continues to apply to the case of requisition even After the promulgation of the Constitution (Fourth Amendment) Act of 1955 there can be no doubt that Article 19(1)(f) need not be considered in determining the vires of the law regarding requisition and all that we need look to is Article 31(2) of the Constitution.

88. But it is said that after the passing of the Constitution of India (Fourth Amendment) Act, 1955, the authority of this decision (Bhanji Munji's case, (S) AIR 1955 SC 41) is considerably shaken and the said decision is no longer applicable to the case of requisition in so far as relevance of Article 19(1)(f) is concerned. Reliance in this connection is sought to be placed upon some stray sentences in a recent decision of their Lordships of the Supreme Court in the case reported in Kavalappara Kottarathil Kochuni v. State of Madras and Kerala, AIR 1960 _SC 1080. That was a case of State Legation involving non-recognition of the rights of Sthanees who had been enjoying that right and conferral of that right upon the members of a Tarwad. That legislation was held to run counter to the fundamental right guaranteed under Article 19(1)(f) of the Constitution on the ground that there was deprivation of property of the Sthanee within the meaning of Article 31(1) of the Constitution which is subject to the tests laid down in Article 19(5)namely that the restrictions imposed should be reasonable and in the interest of general public as it involved inroad upon the fundamental right of a Sthanee guaranteed under Article 19(1)(f) to hold and dispose of property. Their Lordships observed in that case with reference to their earlier decision in (S) AIR 1955 SC 41 : 1955 SCR 777 as follows :

'The decision in (S) AIR 1955 SC 41, on which reliance is placed by the learned counsel for the respondents in support of their contention that Article 31(1) excludes the operation of Article 19(1), is one based on the pre-existing law before the Constitution (Fourth Amendment) Act, 1955. In that case it was contended that Sections 5(1) and 6 (4) (a) of the Bombay Land Requisition Act, 1948, (Bombay Act 33 of 1948), as amended by Bombay Act II of 1950 and Bombay Act 39 of 1930, were ultra vires Articles 19(1)(f) and 31(2) of the Constitution. The premises in question there be longing to the respondents were requisitioned by the Governor of Bombay under the said Act. The Act also provided for compensation, and this Court found that there was a clear public purpose for the requisition, and upheld the law under Article 31(2) of the Constitution.

This Court also considered the alternative argument advanced, namely, that the Act was hit by Article 19(1)(f) of the Constitution inasmuch as unreasonable restrictions were imposed on the rights of the respondents to acquire, hold and dispose of property. In rejecting that argument, Bose J., speaking for the Court, observed at p. 780 (of the SCR) (at pages 43-44 of AIR) thus :

'We need not examine those differences here because it is enough to say that Article 19(1)(f) read with Clause (5) postulates the existence of property which can be enjoyed and over which rights can be exercised because otherwise the reasonable restrictions contemplated by Clause (5) could not be brought into play. If there is no property which can be acquired, held or disposed of, no restrictions can be placed on the exercise of the rights to acquire, hold and dispose of it, and as Clause (5) contemplates the placing of reasonable restrictions on the exercise of those rights it must follow that the Article postulates the existence of property over which these rights can be exercised.' For these observations the learned Judge has drawn upon the principle laid down in A.K. Gopalan's case, 1950 SCR 88 : (AIR 1930 SC 27). These observations prima facie appear to be against the contentions of the petitioner herein. But a further scrutiny reveals that they have no bearing on the construction of Article 31(1) of the Constitution after Clause (2) of Article 31 has been amended and Clause (2-A) has been inserted in that Article by the Constitution (Fourth Amendment) Act, 1955. Before the amendment this Court, as we have already noticed, held by a majority in 1954 SCR 587 : AIR 1954 SC 92 that Clauses (1) and (2) of Article 31 were not mutually exclusive in scope and content, but should be read together and understood as dealing with the same subject, namely, the acquisition or taking possession of property referred to in Clause (2) of Article 31.

In that view, Article 31, before the amendment, was a self contained Article providing for a subject different from that deal, with in Article 19. On that basis it was possible to hold, as this Court held in (S) AIR 1955 SC 41 : 1955 SCR 777, on the analogy drawn from Article 21, that when the property therein was requisitioned within the meaning of Article 31, the operation of Article 19 was excluded. But there is no scope for drawing such an analogy after the Constitution (Fourth Amendment) Act, 1955, as thereafter they deaft with two different subjects; Article 31(2) and (2-A) with acquisition and requisition and Article 31(1) with deprivation of property by authority of law. The decision of this Court in Bhanji Munji's case, (S) AIR 1955 SC 41 no longer holds the field after the Constitution (Fourth Amendment) Act, 1955.'

89. It is dear from these observations that when their Lordships said that the decision in Bhanji Munji's case, (S) AIR 1935 SC 41 no longer holds the field they meant to speak of the cases of deprivation covered only by Article 31(1) of the Constitution. The position with reference to the case of acquisition or requisition covered by Article 31(2) and 31 (2-A) however remained unaltered in spite of the Fourth Amendment to the Constitution and the principle of Bhanji Munji's case, (S) AIR 1955 SC 41 still continues to apply to those cases. It would therefore seem to follow that Article 31(2) and 31 (2-A) still continue to deal with a subject different from that in Article 19(1)(f) and that there is no over-lapping. There is therefore no necessity to have recourse to Article 19(1)(f) and 19(5)in order to test the validity of a legislation on the subject of requisition or acquisition covered by Article 31(2) and 31 (2-A). The necessary safeguards for the special kind of deprivation covered by Article 31(2) are provided for in the body of that provision itself and it is not necessary to travel outside it.

There is nothing in the observations of their Lordships in the aforesaid case to suggest that Article 31(2) like Article 31(1) is subject to Article 19(1)(f) and that for that reason restrictions and limitations upon the legislative powers of the State or the. Centre imposed by Article 19(5) ought to govern the case of acquisition or requisition covered by Article 31(2) and 31 (2-A). This view is fully supported and reinforced by another and later decision of the Supreme Court in (Ordinal Jurisdiction) Petn. No. 134 of 1959 : (AIR 1960 SC 1203). They observed in this later case :

'The other attack under Article 19(1)(f) of the Constitution is equally futile in view of the decision of this Court in (S) AIR 1955 SC 41 and 1957 SCR 721 : ( (S) AIR 1957 SC 521)'.

90. That was a case of acquisition of land under the provision of the Land Acquisition Act. It therefore follows that we need consider the validity of the impugned legislation only on the basis of limitations and conditions laid down in Article 31(2) itself and there is no need to consider whether the legislation further satisfies the tests laid down in Article 19(5) of the Constitution. The decisions relied upon on behalf of the petitioners namely AIR 1952 SC 252, AIR 1953 SC 373, AIR 1960 SC 468, AIR 1960 SC 554 and AIR 1960 SC 633, which relates to Article 19(5), therefore, are not apposite. First ground raised on behalf of the petitioners is therefore untenable.

91. This brings us to the second ground namely that Sections 3 and 14 of the Act contravene Article 31(2) of the Constitution. Article 31(2) as amended reads as follows :

'No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principle on which, and the manner in which, the compensation is to be determined and given, and no such law shall be called in question in any Court on the ground that the compensation provided by that law is not adequate.'

92. Now Section 4 of the Act lays down the principle on which the compensation to be paid in respect of the premises requisitioned is to be determined. Provision is made for the payment of compensation to the proprietor and also to a tenant. The requisition in the present cases is under the Act and hence under the authority of law and not merely by executive order and the only question which therefore remains to be considered is whether the requisition can be said to be for a Public purpose. Section 3 of the Act, which is material in this connection and which deals with the power of the State Government in requisitioning premises under the Act, provides that when the State Government be of the opinion that it is necessary to acquire any accommodation for the public purpose it may by an order in writing do so. Since the requisitioning is to be only for a public purpose apparently there is no contravention of Article 31(2) of the Constitution. The term 'public purpose' as is clear from its definition given in the Act and quoted above includes any Government purpose as indicated therein. The storing of Government foodgrains is one such purpose.

But the question which arises for consideration is whether what the Act mentions as 'public purpose,' is the last word upon the subject or whether the matter is justiciable so that if the Court be of the opinion that a particular purpose mentioned by the Act is in fact not a public purpose it can hold any requisitioning for such a purpose as contrary to Article 31(2). Now since existence of a public purpose is a necessary condition for a statute, relating to acquisition or requisition of a private property, to be valid under Article 31 which is an Article dealing with a fundamental right guaranteed by the Constitution, what the legislature may choose to say regarding a particular purpose as being a public purpose cannot be the last word of the subject. For if this were so the legislature by an appropriate legislation bring any non-public purpose in the category of public purpose thereby trenching upon the fundamental right guaranteed under Article 31(2) of the Constitution.

But since with us not the Legislature but the Constitution is supreme and the High Courts and the Supreme Court are assigned the duty of interpreting the Constitution it follows that whether a particular purpose mentioned by law as 'public purpose' is so or not becomes justiciable. This is clear from the decision of the Supreme Court in Charanjitlal v. Union of India, 1950 SCR 869 : (AIR 1951 SC 41), where Mukherjea J., observed :

'Article 31 (2) of the Constitution prescribes a two fold limit within which such superior right of the States should be exercised. One limitation imposed upon the acquisition or taking possession of private property which is implied in the clause is that such taking away must be for public purpose, etc.'

93. In a later case reported in AIR 1952 SC 252, Das, J., reiterated the view thus:

'I am, therefore, clearly of opinion that the existence of a public purpose as a pre-requisite to the exercise of the power of compulsory acquisition is an essential and integral part of the 'provisions' of Clause (2).''

94. In 1956 SCR 18 : (S) AIR 1956 SC 294, it was observed :

'An examination of these and other cases leads us to the conclusion that it is impossible to precisely define the expression 'public purpose'. In each case all the facts and circumstances will require to be closely examined in order to deter-mine whether a 'public purpose' has been established, prima facie the Government is the best judge as to whether 'public purpose' is served by issuing a requisition order, but it is not the sole judge. The Courts have the jurisdiction and it is their duty to determine the matter whenever a question is raised whether a requisition order is or is not for a 'public purpose'.

95. This position is made further clear after the passing of the Constitution (Fourth Amendment) Act, 1955, whereby existence of a 'public purpose' is specifically made one of the conditions for acquisition or requisition under Article 31(2). That being so mere inclusion of the purpose of storing of Government foodgrains in the definition of 'public purpose' will not prevent this Court from examining whether the purpose is a Public purpose or not.

96. NOW in the present stage of development in our country and with the vagaries of nature such as floods, storms, draughts, ever increasing population with the production of the foodgrains not keeping pace with it, acute shortage of foodgrains does many times occur in different parts of this vast sub-continent with teeming millions. It therefore becomes one of the prime duties of the State to safe-guard against occurrence or recurrence of famine conditions due to such shortage.

97. Moreover it may also become necessary that the Government should hold adequate stock of food-grains to prevent prices from soaring high due to cut-throat trade competition and cornering.

98. For both the above reasons acquisition of food-grains and their storage clearly becomes a public purpose in the sense of purpose in which the general interest of the community as opposed to particular interest of individuals is understood, vide 42 Ind App 44 : (AIR 1914 PC 20).

99. Das J., in AIR 1952 SC 252, has after reviewing the field of legal opinion as to the meaning and scope of the phrase 'public purpose' observed :

'From what I have stated so far, it follows that whatever furthers the general interests of the community as opposed to the particular interest of the individual must be regarded as a public Purpose. With the onward march of civilization our notions as to the scope of the general interest of the community are fast changing and widening with the result that our old and narrower notions as to the sanctity of the private interest of the individual can no longer stem the forward flowing lide of time and must necessarily give way to the broader notions of the general interest of the community. The emphasis is unmistakably shitting from the individual to the community. This modern trend in the social and political philosophy is well reflected and given expression to in our Constitution.'

100. Having regard to what I consider to be the probable scheme behind storing of Government food-grains and the meaning and scope of the phrase 'public purpose' there is no doubt that there is public purpose in requisitioning the premises for storing food-grains. Whether a resort should be had to such storing or not is a matter of policy which the authority at the halm of Governmental affairs alone have to decide and the Court of Law will have no say in the matter. The second ground of contention is therefore untenable.

101. We now pass on to the third contention namely that assuming Sections 3 and 14 of the Act are not ultra-vires the Constitution and that there may exist some public purpose in requisitioning private premises for storing Government food-grains there is no lawful exercise of the power of requisition in these cases because the Government, who alone could under Section 3 of the Act form an opinion as to the storing of Government food-grains, has not really done so and that the formation of that opinion as also actual acquisitioning of premises thereafter had both been the acts of the Collector Damoh alone.

102. The point thus raised turns the exact significance of the term 'power' as used in Section 14 of the Act It is contended on behalf of the petitioners that by Section 3 of the Act the Legislature has confided to the Government the duty of forming its opinion regarding the need for requisitioning an accommodation for a public purpose as defined in Section 2 (d) of the Act. It is only after the opinion is thus formed by the Government that it can exercise its power of requisitioning premises. What is permissible for delegation under the terms of Section 14 is this power of the Government and not the duty of forming an opinion. The word 'power' in Section 14 should, it is said, be confined to the second stage in the process of requisition and should not be extended to the first stage as well because the first stage does not connote so much a power as it does a duty.

It was pointed out that requisitioning property is a serious inroad upon the fundamental right of a citizen to acquire, hold and dispose of property and that it cannot be reasonably said that such grave matter would be made to rest upon the opinion of any person, high or low, whom the Government may choose to select for the Purpose. For if such is assumed to be the case, it is said, the fundamental rights which the Constitution has so solemnly guaranteed will be rendered illusory.

103. In my opinion the contention is untenable. Requisitioning is only permissible for a public purpose. This is defined in the Act. Whether it is the Government itself or its nominee who acts in that regard the limitations are the same. If therefore factually there exists the need for requisition for a public purpose it makes no difference whether the opinion in that regard is formed by the Government or any subordinate officer or authority selected by the Government. Section 14 of the Act authorises delegation of powers of Government under Section 3 which does not mean merely to do ministerial acts. For what are merely ministerial acts can be got done through subordinates even in the absence of power of delegation acquired through legislation.

When therefore the Legislature authorises delegation of power by any named authority or Government to others what is really meant is that it authorises delegation of such power with its limitations and not power simpliciter. It is not legitimate to hold in such cases that the legislature permitted delegation of power without the limitations to which the delegating authority itself was subject. It is thus clear that power, in the context in which the term is used, is not confined to ministerial acts but includes everything which the delegating authority itself can do namely formation of opinion as to the existence of need for the requisitioning of an accommodation and the actual issue of a written order directing such requisition.

104. Argument in somewhat similar strain was advanced before the Privy Council in England in a recent appeal from North Rhodesia and Nyasa-land. The original action was launched by one Edward Liso Mungoni, an African resident in Northern Rhodesia for damages against the State for false imprisonment during a certain period pursuant to the order of the Provincial Commissioner who had been delegated 'Power' of the Governor under Regulation 16 of the Emergency Powers Regulations, 1956, to detain any person by an order in writing if he was satisfied about the necessity of doing so for maintaining public order.

The point raised was that what was authorised was the delegation of powers of the Governor and not the duty of being satisfied about the necessity of detention which could be performed under the Regulations in question by the Governor, the Legislature having confided the same to him alone. This argument appealed to Bell C. J., when at the early stage the detention order was challenged by means of a petition for a writ of habeas corpus. It appealed to the High Court in a subsequent suit for damages for false imprisonment.

But on appeal the Federal Supreme Court disagreed with this view of the High Court and held that the detention was not illegal and that the Provincial Commissioner could have acted both as regards the formation of opinion as well as for the actual issue of the written order of detention.

When the matter was taken to the Privy Council in appeal they set Out the argument in favour of the plaintiff-appellant in the words of Bell C. J., thus : (vide 1960 All England Law Reports February 23)

'The delegation set out in Government Notice 221/56 is good as far as it goes. The Provincial Commissioner can make a detention order--but only when the Governor is satisfied that it is necessary in terms of Regulation 18 (1); and no delegation of the duty of satisfying himself has been made by the Governor. Without the step of 'satisfying' being taken, a detention order is ultra vires.'

105. The privy Council then proceeded to meet the reasoning thus set out in the following words :

''While their Lordships share with the Chief Justice his concern for the liberty of the subject, they cannot agree with this line of reasoning. The power and the duty under Regulation 16 (1) are so interwoven that it is not possible to split the one from the other so as to put the duty on one person and the Power in another. Whosoever exercises the power, he it must be who has to carry out the duty.

It seems clear to their Lordships that, if the Governor has any authority at all to d legate his functions under Regulation 16 (1), he must be able to delegate both the power and duty together to one and the same person. He cannot delegate the power to another and keep the duty to himself. Even this, did not daunt counsel for the appellant. He said that, if the power cannot be split from the duty, then it means that the Governor cannot delegate his functions under Regulation 16 (1) at all; for he cannot delegate his duty under it to any one.

It seems to their Lordships that the arguments for the appellant proceed on this fallacy: they assume that the duty under Regulation 16 (1) is something separate and distinct from the power therein contained, Their Lordships cannot accept this view. In their opinion, Regulation 16 (1) contains not so much a duty, but other a power coupled with a duty. The power of the Governor to make a detention order can only be exercised when he is 'satisfied' that it is necessary. The requirement that he is to be satisfied--though in one sense a duty--is; nevertheless, also a condition or limitation on the exercise of the power. And when Regulation 47 authorises the Governor to delegate the power to any person, it authorises him to delegate to such person the fulfilment of all the conditions and limitations attaching to it, even though they be also duties.''

106. The above reasoning of the Privy Council in England applies fully in the present case. The Act is meant to apply to the whole of the State. There are different categories of public purposes included in the definition of the term 'public purpose' as given in Section 2 (d) of the Act, The accommodations referred are spread over the entire region of the State to which the Act applies. Particular need for a particular public purpose with reference to a particular accommodation has to be judged and in many cases it may be necessary to act with speed. It is for that reason that the power is delegated to a subordinate officer or authority to be selected by the Government.

It is to be assumed that the Government in making selection of such a person will act with a sense of responsibility. One need not be over-suspicious or over-critical in that the Government would confide that power to an absolutely incompetent person particularly when the actions of the Government as well as the delegate are subject to the controlling authority of the Courts if the same are beyond Constitutional and statutory limitations. This contention therefore also deserves to be rejected.

107. As regards the fourth ground it raises a question of fact.

108. The orders of the Collector Damoh under examination no doubt do not set out the actual scheme regarding the storage of Government food-grains but this is not necessary. The affidavit filed on behalf of the Government as to this is;

'The collection and storage of food-grains is undertaken by the State Government under its scheme of fair distribution of food-grains to deficit areas. Under this scheme the food-grains whenever and to whomsoever supplied are to be supplied at the actual price plus the incidental charges and there is no profit motive.'

109. It is suggested on behalf of the petitioners that scheme is designed to facilitate State Trading in food-grains at the sacrifice of a private trader and that such a purpose cannot be a public purpose and hence there is exercise of power for an ulterior purpose under garb of public purpose indicated in the Act and Article 31(2) of the Constitution.

110. In the first Place, as observed already, this raises a question of fact. In the second place, the petitioner has placed no material before us to satisfy that what is suggested is the real motive.

111. As regards the fifth ground, powers of this Court under Article 226 of the Constitution are not the same as powers of appeal to correct all errors of judgment on the part of authorities concerned. If the authority has acted within the ambit of its power, this Court cannot interfere unless it is shown that it had acted mala fide. There, is no material placed to show that the Collector had acted mala fide in making requisition in any of these cases. The law also does not make it necessary to give a hearing to the petitioner before making the requisition.

112. I, therefore, would agree with my brother Shrivastava J., and would reject all the petitions with costs. Counsel's fees shall be taxed at Rs. 100/- in each of the petitions.

113. After this opinion was prepared, I had the benefit of reading the opinion prepared by my brother Naik, J. For reasons indicated in the above opinion, I do not think unnecessary to modify my view.

Shrivastava, J.

114. This and three other miscellaneous petitions (Nos. 144, 145 and 154 of 1960) are directed against the orders of the Collector, Damoh, requisitioning the godowns belonging to the petitioners for the purpose of storing food-grains. The requisition has been made in exercise of the powers vested in the State Government under Section 3 of the Madhya Pradesh Accommodation (Requisition) Act, 1948--hereinafter referred to as the Requisition Act--and delegated to the Collector under Section 14 thereof. The relevant part of those sections reads as under:

'Section 3. If, in the opinion of the State Government, it is necessary to requisition any accommodation for a public purpose, it may, by an order in writing requisition such accommodation.......

Section 14. The State Government may by order direct that any Power conferred under this Act, shall in such circumstances and under such conditions, if any, as may be specified in that, direction, be exercised by any officer or authority subordinate to it'

''Public purpose' has been defined in Section 2(d) of the Requisition Act as follows:

'Public purpose' includes any Governmental purpose such as providing accommodation for the residence of a person holding office of profit under the State Government or for locating any public office of the State Government or any local authority or for storing Government food-grains and allied purposes.'

115. It is not disputed that a delegation under Section 14 has been made by the State Government in favour of the Collectors by a proper notification. However, it was pointed out that Section 3 provides for two distinct matters, the first is the formation of an opinion as to the existence of the necessity to requisition; and the second is the actual act of requisition. It was argued that the first is a matter of subjective opinion to be formed by the State Government and is not a 'power' within the meaning of Section 14 and could not, therefore, be delegated. Only the second part of the section deals with a 'power' and it is this power which could be delegated.

116. In my opinion, the formation of the opinion and the requisition form but one composite act and must be performed by the same authority. In this connection, I may refer to the observations of Das J. in Province of Bombay v. Khushaldas Advani, AIR 1950 SC 222 interpreting Section 3 of the Bombay Land Requisition Ordinance (V of 1947) on page 263:

'....on a true construction of Section 3 of the Ordinance the determination of the existence of a public purpose and the necessity or expediency (or requisitioning any particular land for that purpose was a purely administrative act, for the entire composite matter was left to the opinion of the Provincial Government and its decision if made in good faith could not be questioned.'

Though these observations occur in a different con-text, they show that the formation of opinion and requisition are but one act. The delegation of the power must therefore include the power to determine the existence of the necessary condition.

117. That such a power may be delegated and is usually delegated would be clear from the following extracts from Nichols on Eminent Domain (Vol I):

''When property is taken by the State itself, the power to select the land to be taken and to institute the proceedings to take it, is usually delegated by the Legislature to some public official (p. 209).

In some cases, the Legislature itself, by the mere enactment of a statute, effects the taking of certain land or interests in land for the public use, but ordinarily the taking of private property involves so much detail work that it is delegated to administrative officers. (p. 207)'

Thus, there was nothing wrong in the State Government delegating its powers to the Collectors.

118. We may here refer to the decision in Mungoni v. Attorney-General of Northern Rhodesia, 1960-1 All ER 446. Interpreting Regulation 47 (1) of the Northern Rhodesia Emergency Powers Regulations, 1956, their Lordships quoted from the judgment under appeal the following passage:

'The delegation set out in Government Notice 221/56 is good as far as it goes. The provincial commissioner can make a detention order--but only when the governor is satisfied that it is necessary in terms of reg. 16 (1); and no delegation of the duty of satisfying himself has been made by the governor. Without the step of 'satisfying' being taken, a detention order is ultra vires. In the result the fifty-four orders of detention, the subject-matter of this application, are, in my opinion, invalid and I have no option but to order the release of the detained persons, which I accordingly do.'

and repelled the contention by observing that:

'while their Lordships share with the chief justice his concern for the liberty of the subject, they cannot agree with this line of reasoning. The power and the duty under Regulation 16 (1) are so interwoven that it is not possible to split the one from the other so as to put the duty on one person and the power in another. Whosoever exercises the power, he it must be who has to carry out the duty. It seems clear to their Lordships that, it the governor has any authority at all to delegate his functions under Regulation 16 (1), he must be able to delegate both the power and duty together to one and the same person. He cannot delegate the power to another and keep the duty to himself. Even this did not daunt counsel for the appellant. He said that, if the power cannot be split from the duty then it means that the governor cannot delegate his functions under Regulation 16 (1) at all; for he cannot delegate his duty under it to anyone.

It seems to their Lordships that the arguments for the appellant proceed on this fallacy: they assume that the duty under Regulation 16 (1) is something separate, and distinct from the power therein contained. Their Lordships cannot accept this view. In their opinion, Regulation 16 (1) contains not so much a duty, but rather a power coupled with a duty. The Power of the governor to make a detention order can only be exercised when he is 'satisfied' that it is necessary. The requirement that he is to be satisfied--though in one sense a duty--is, nevertheless, also a condition or limitation on the exercise of the power. And when Regulation 47 authorises the governor to delegate the power to any person, it authorises him to delegate to Such person the fulfilment of all the conditions and limitations attaching to it, even though they be also duties.'

These observations fully apply to sections 3 and 14 of the Requisition Act I accordingly hold that the State Government could validity delegate its power to requisition as well as the connected duty to form an opinion as to the, necessity of the requisition.

119. Another ground on which the delegation is attacked is that under Section 14 of the Requisition Act the power can be delegated to 'any person' and there is nothing in that section to ensure the exercise of the power in a reasonable manner. On the strength of the decision in AIR 1954 SC 224, ii is argued that the provision is contrary to Article 19(1)(f) of the Constitution. I agree that if Article 19(1)(f) applies to the case, Section 14 of the Requisition Act would be liable to be struck down as unconstitutional. However, for reasons which I shall presently give I am of the view that Article 31(2) is not controlled by Article 19(1)(f). The contention cannot, therefore, be accepted.

120. The second point urged in support of the petitions is that the business carried on by the petitioners is completely stopped by the order and it is thus an unreasonable restriction on their right to carry on business under Article 19(1)(f). It was well settled by several decisions of the Supreme Court, e.g. 1954 SCR 587 : (AIR 1954 SC 92), 1954 SCR 674 : (AIR 1954 SC 119) and 1955-1 SCR 707 : (AIR 1954 SC 728) that Articles 19 and 31 operate in different fields and therefore Article 19 had no application in cases falling under Article 31. The question is whether the Constitution (Fourth Amendment) Act, 1955, by which Article 31 has been amended made any difference.

121. This, question was considered in Petn. No. 443 of 1955, D/- 4-5-1960 : AIR 1960 SC 1080. In that case, their Lordships were interpreting Article 31(1) which prohibits deprivation of property save by authority of law. It was pointed out that a 'law' can he valid only if it does not take away or abridge any of the fund mental rights enumerated in Part III of the Constitution. So far as Article 31(1) is concerned, their Lordships definitely held that the view taken in 1955 SCR 777 : (S) AIR 1955 SC 41 that Article 31(1) excludes the operation of Article 19(1)(f) is no longer good law after the Fourth Amendment.

122. On this reasoning the contention of the petitioners that Article 31(2) must also be subject to Article 19(1)(f) as the word 'law' is used therein also has some force. However, their Lordships have drawn a distinction between Clauses (1) and (2) of Article 31 as would appear from the following passage :

'But a further scrutiny reveals that they have no bearing on the construction of Article 31(1) of the Constitution after Clause (2) of Article 31 has been amended and Clause (2A) has been inserted in that Article by the Constitution (Fourth Amendment) Act, 1955. Before the amendment this Court, as we have already noticed hold by a majority in 1954 SCR 587 : AIR 1954 SC 92 that Clauses (1) and (2) of Article 31 were not mutually exclusive in scope and content, but should be read together and understood as dealing with the same subject, namely, the acquisition or taking possession of property referred to in Clause (2) of Article 31. In that view. Article 31. before the amendment, was a self-contained Article providing for a subject different from that dealt with in Article 19. On that basis it was possible to hold, as this Court held in 1955-1 SCR 777 : (S) AIR 1955 SC 41 on the analogy drawn from Article 21, that when the property therein was requisitioned within the meaning of Article 31, the operation of Article 19 was excluded. But there is no scope for drawing such analogy after the Constitution (Fourth Amendment) Act, 1955, as thereafter they dealt with two different subjects : Article 31(2) and (2A) with acquisition and requisition and Article 31(1) with deprivation of property by authority of law.'

There would be no necessity to emphasise this distinction if the matter could be disposed of simply on the meaning of the word 'law' used in the two clauses.

123. The strongest argument which led to a different construction being Placed on the first clause of Article 31 is that as it is now separated from the second clause and deals with the subject of deprivation of property in general, there is no restriction left on that power. The State could make any law depriving a citizen of his property in cases not falling under Clause (2) and such law need not provide even for compensation. Such an arbitrary and uncontrolled power could not be intended to be given to the State by the Constitution which is so careful about the fundamental rights of the citizens. This is how the view is summed up :

'If the interpretation sought to be placed Pa Article 31(1) was accepted, it would compel the importation of the entire doctrine of police power and grafting it in Article 31(1) or the recognition of arbitrary power in the legislature with the hope or consolation suggested that our Parliament and legislatures may be trusted not to act arbitrarily. The first suggestion is not legally permissible and the second does not stand to reason, for the Constitution thought fit to impose limitations on the power of the legislatures even in the case of leaser infringements of the rights of a citizen.'

At another place in the judgment, their Lordships point out;

'Articles 19(1)(d) and 22 deal with different subjects, whereas both Articles 19(1)(f) and 31(1); deal with the same subject namely, Property; while under Article 19(1)(f), a citizen has the right to acquire, hold and dispose of property, Article 31(1) enables the State to make a law to deprive him of that property. Such a law directly infringes the fundamental right given under Article 19(1)(f). Further, Articles 21 and 22 are linked up together; while Article 21 enables the State, to deprive a person of his life or personal liberty according to the procedure established by law, Article 22 prescribes certain, procedure in respect of both punitive and preventive detention. They constitute an integrated code in the matter of personal liberty. On the other hand, Article 31(1), by reason of the amendment, ceases to be a part of the guarantee against acquisition or requisition of property without the authority of law, and must therefore be construed On its own terms.'

These observations were made to explain how it is not possible after the amendment to rely on A.K. Gopalan's case, AIR 1950 SC 27 as was done before the amendment in earlier decisions of the Supreme Court. Their Lordships have accepted the earlier view that Articles 21 and 22 are still not subject to the provisions in Article 19(1)(d), as they constitute an integral code in the matter of personal liberty. However, after the Fourth Amendment, Clause (1) of Article 31 is independent of Clause (2) thereof and there is thus no restriction left now on the legislative power of the State in matters falling within that clause. It is this vital change after the Fourth Amendment which led their Lordships to take a different view regarding Clause (1).

124. The position as regards the second clause dealing with requisition of property by the State is still the same. The requisition has to be in accordance with law, it is to be for a public purpose and it cannot be without payment of compensation. The provisions in this clause thus form an integral code about requisition of land by the State and the earlier view should, in my opinion, still apply to this clause. It is, pertinent to observe that in the decision of the Supreme Court above referred to nothing is said about the interpretation of Clause (2). On the contrary, Clause (1) has been differentiated from it. I consider that the earlier decisions of the Supreme Court continue to be binding on the interpretation of the second clause.

125. My view on this vexed question receives support from a later decision of the Supreme Court in Petn. No. 134 of 1959, D/- 8-8-1960 : AIR 1960 SC 1203. In that case, the provisions in the second clause of Article 31 were being considered directly. There is no reference to the decision in Moopil Nayar's case, AIR 1960 SC 1080 (supra) and the question of the applicability of Article 19(1)(i) is not discussed in detail. All the same, the following observations occur in the penultimate para-graph of the judgment:

'The other attack under Article 19(1)(f) of the Constitution is equally futile in view of the decisions of this Court in (S) AIR 1955 SC 41 and 1957 SCR 721 : ( (S) AIR 1957 SC 521).'

These two decisions read together seem to imply that while Bhanji's, case (S) AIR 1955 SC 41 is no longer good law in the context of Clause (1) as laid down in the first case, it is still good law in the context of Clause (2) of Article 31 as laid down in the second case.

126. Accordingly, I hold that Clause (2) of Article 31 is not controlled by Article 19(1)(f). Deprivation of property by the State is a subject completely provided for in that Article and must satisfy the three requirements of that clause. It need not satisfy any other test in addition.

127. That being the position, it is not necessary for me to consider the contention that the Requisition Act must be struck down, as it gives arbitrary power to the State Government and its delegates without laying down anything to control their action. In judging the reasonableness of a provision under Article 19, the scope of the enquiry is much larger than in judging the validity of a requisition under Article 31(2). In a case of requisition under Article 31(2), all that we have to see is that the requirements in that clause are satisfied. We need not So into the question of reasonableness of the legislation on the basis of the tests laid down under Article 19.

128. Turning now to Article 31(2), a requisitioning order would be constitutional only if it satisfies the following requirements of that Article, viz.,

(i) the requisitioning must be Under the authority of law;

(ii) the law should provide for compensation; and

(iii) the requisitioning must be for a public-purpose.

In the instant case, the necessary authority for requisitioning is found in the Accommodation (Requisition) Act. That Act also provides for payment of compensation to be determined in accordance with the principles enacted therein. I have now to examine whether the third requisite is also satisfied.

129. Before I do this, it is necessary for me to discuss the contention raised on behalf of the State, viz., the question whether a public purpose exists is not justiciable in view of the language used in Section 3 of the Requisition Act.

130. It is true that the use of the words 'in the opinion of in that section show that the whole matter including the existence of a public purpose is left to the subjective satisfaction of the State Government The contention of the State on this aspect is supported by Hubli Electricity Co. Ltd. v. Province of Bombay, AIR 1947 Bom 276 (FB) and In re, Jayantilal, AIR 1949 Bom 319 as also Franklin v. Minister of Town and Country Planning, 1948 AC 87. It has been held in these cases that where words like 'if it appears' or 'is satisfied' or ''in the opinion of' or words of similar import are used, the matter falls within the subjective satisfaction of the authority and the opinion cannot be challenged in Court unless it has been arrived at mala fide.

131. However, this view was taken in the context of interpreting a statute containing these expressions. The provisions, of the Constitution must prevail over legislation and if an enactment violates constitutional provisions, no finality can be attached to the opinion of an authority even though the express words of the statute make it so. Article 31(2) of the Constitution makes the existence of a public purpose a condition precedent to every acquisition or requisition of property. Unless the necessary pre-requisites exist, the acquisition or requisition would be unconstitutional irrespective of anything contained in the relevant statute.

132. A contrary view was taken in Sudhindranath v. Sailendra Nath, 87 Cal LJ 140 : (AIR 1952 Cal 65). Relying upon Wijeyesekhara v. Festing, 1919 AC 646 : (AIR 1919 PC 155) it was held that

'the opinion of the Provincial Government that housing a minister is a public purpose would be final and could not be questioned by this Court.'

However, the learned Judge added that even if the Court could question the opinion, the housing of a minister was a public purpose and decided the case on that ground.

133. The decisions of the Supreme Court clearly lay down that the existence of a public purpose is justiciable. Thus, in AIR 1952 SC 252, Das J. said :

'I am, therefore, clearly of opinion that the existence of a public purpose as a pre-requisite to the exercise of the power of compulsory acquisition is an essential and integral part of the 'provisions' of Clause (2).'

In AIR 1950 SC 222 (supra), Fazl Ali J. said :

''But the same cannot be said with regard to the decision of the Provincial Government an to the existence of a public purpose, which is the foundation for its power and is a condition precedent to its exercise. If the executive authority requisitions land under Section 3 without there being any public purpose in existence, its action is a nullity and the position in law is as if the authority did not act under Section 3 at all.'

In 1956 SCR 18 : ( (S) AIR 1956 SC 294) their Lordships reviewed the authorities on the point and observed:

'An examination of these and other cases leads us to the conclusion that it is impossible to precisely define the expression 'public purpose'. In each case all the facts and circumstances will require to be closely examined in order to determine whether a 'public purpose' has been established. Prima facie the Government is the best judge as to whether 'public purpose' is served by issuing a requisition order, but it is not the sole judge. The courts have the jurisdiction and it is their duty to determine the matter whenever a question is raised whether a requisition order is or is not for a 'public purpose'.'

It cannot, therefore, be seriously contended that the validity of a requisition order cannot be questioned on the ground of non-existence of a public purpose, notwithstanding that the relevant statute makes it final.

134. We have next to find out what exactly the expression 'public purpose' as used in Article 31 of the Constitution means. The decision which is so often cited in this connection is 42 Ind APP 44 : (AIR 1914 PC 20). It was, referred to in Kameshwarsingh's case, AIR 1952 SC 252 (supra) by Das J. who said;

'Even in 1914 the Judicial Committee did not think fit to attempt a precise definition of the expression 'public purpose' and was content to quote with approval the following passage from the judgment of Batchelor, J.:

'General definitions are, I think, rather to be avoided where the avoidance is possible, and I make no attempt to define precisely the extent of the phrase 'public purpose' in the lease; it is enough to say that, in my opinion, the phrase, whatever else it may mean, must include a purpose, that is, am object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned.' And it is well that no hard and fast definition was laid down, for the concept of 'public purpose' has been rapidly changing in all countries of the world. The reference in the above quotation to 'the general interest of the community', however, clearly indicates that it is the presence of this element in an object or aim which, transforms such object or aim into a public purpose.

From what I have stated so far, it follows that whatever furthers the general interests of the community as opposed to the particular interest of the individual must be regarded as a public purpose.'

135. The provisions of Section 3 of the Bombay Land Acquisition Ordinance, 1947, which are similar to the provisions which we are considering, were considered in Khushaldas Advani's case, AIR 1950 SC 222 (supra), in (S) AIR 1955 SC 41 (supra), (S) AIR 1955 SC 810 and lastly in Nanj's case, 1956 SCR 18: ((S) AIR 1956 SC 294), (supra). The requisition in the first two cases was for housing homeless persons. In the third case, it was for housing a member of the Foreign Consulate and in the fourth case it was for housing in officer of the State Transport Corporation. The purpose was held to be a 'public purpose' in all these cages I need only quote the following passage from the last case, in which some of the earlier cases have been referred to :

'The cases of 42 Ind App 44 : (AIR 1914 PC 20); (S) AIR 1953 SC 41 and (S) AIR 1955 SC 810 are merely illustrative. In each of them Primarily the person directly and vitally concerned would be the person to whom the residential accommodation would be allotted with which prima facie the genera! interest of the community would not be directly concerned at all. We must regard Hamabai's case, 42 Ind App 44 : (AIR 1914 PC 20) as a decision to the effect that the general interest of the community was directly and vitally concerned with the efficiency of the Government servants because it would be to its benefit to have such servants and, therefore, providing living accommodation for them was a public purpose. The decision in Bhanji Munji's case, (S) AIR 1955 SC 41 must be read as one in which the general interest of the community wag directly and vitally concerned with prevention of lawlessness and disease and to house the homeless in order to avoid such a contingency was a public purpose. In Ali Gulshan's case, (S) AIR 1955 SC 810 a State purpose was served because the State Government was interested in its own trade or commerce and in the efficient discharge of his duties by a Foreign Consult who would be concerned with such trade or commerce.'

The State Transport Corporation, in that case, was for development of road transport. It was considered that the requisitioning of a house for an employee of the Corporation was a public purpose, as this ensured the efficiency of its officers and led to its proper functioning. Their Lordships said :

'The activities of the Corporation under Section 19(1) are so interlinked with its successful functioning as a Road Transport Corporation that requisitioning or acquisition of property to advance and ensure those activity must be regarded as for a public purpose.'

136. In Babu Barkya's case, Petn. No. 134 of 1959 : (AIR 1960 SC 1203) (supra), acquisition of land for providing 'village sites' was held to be for a 'public purpose' with the following observations :

'.... the expression 'public purpose' has been used in its generic sense of including any purpose in which even a fraction of the community may be interested or by which it may be benefited.'

137. The principle deducible from these decisions appears to me that any scheme would be considered to be for a public purpose which has for its purpose, i.e., ''object' or 'aim' interest of the community as opposed to the interest of the individual. The proper approach in such casts is to take the scheme as a whole and then examine whether the entire scheme of acquisition is for a public purpose (paragraph 107 of Kameshwarsingh's tease, AIIR 1952 SC 252 (supra)).

138. The legislative sanction, on which the exercise of the power of requisitioning is based in the present case, is provided for in Section 3 read with Section 2 (d) of the Requisition Act. Section 2(d) merely declares that storing of Government food-grains would be a public purpose. This cryptic provision by itself gives us no idea of the interest, benefit or use of the public served by the storing of foodgrains. It may be that under some circumstances the act may be beneficial to public and thus form a public purpose. Under other circum-stances it may not. However, the provision is only an enabling one, and the power can be used in suitable cases where it subserves a public purpose. It is true that no exceptions are provided therein; but that by itself does not seem to me sufficient to strike down the provision as ultra vires of the Constitution.

139. The true position appears to be as pointed out by Bose J. in Bhanji's Case, (S) AIR 1955 SC 41 (supra) :

'It is not necessary to set out the purpose of requisition in the order. The desirability of such a course is obvious because when it is not done proof of the purpose must be given in other ways and that exposes the authorities to the kind of Charges we find here and to the danger that the Courts will consider them well founded. But in itself an omission to set out the purpose in the order is not fatal so long as the facts are established to the satisfaction of the Court in some other way.'

These observations were approved recently in Babu Barkya's case, Petn. No. 134 of 1959 : (AIR 1960 SC 1203) (supra).

140. We have thus to examine the scheme under which food-grains is sought to be stored by Government. The affidavit filed by the Government on this point is as follows :

'...... the collection and the storage of foodgrains is undertaken by the State Government under its scheme of fair distribution of foodgrains to deficit area. Under this scheme the goodgrains whenever and to whomsoever supplied are to be supplied at the actual price plus the incidental charges and there is no profit motive.'

141. Thus, the object of the scheme is to supply foodgrains to deficit areas where prices are likely to rise for a variety of reasons. The Government has made it clear that there is no profit motive, in working the scheme. The price they charge for the foodgrains sold in deficit areas is equal to the cost incurred. It cannot, therefore, be said that the storing is in the course of the normal trade activities of the Government. In Kameshwarsingh's case, AIR 1952 SC 252 (supra) the Supreme Court did not uphold the acquisition of the 'arrears of rent' as that did not serve any public propose and was merely to increase the revenue. In the instant case, this objection is not tenable, as Government has no motive to make profit but only attempts to make an equitable distribution of foodgrains.

142. I have no difficulty in conceding that such a scheme is for a pubic purpose. The duty of maintaining supplies and prices is the duty of a welfare State and the action of the State in purchasing foodgrains is directed to that end. Necessity to requisition godowns for the successful working of the scheme is obvious. The scheme is necessarily for a short period and the contention that Government should build its own godowns for their trade is devoid of any merit. It is too late today to contend that only those activities of Government constitute public purpose which are in exercise of strict governmental functions of maintaining law and order. With the onward march of civilization our notions as to the scope of the general interest of the community are fast changing and widening with the result that our old and narrower notions as to the sanctity of the private interest of the individual can no longer stom the forrward flowing tide of time and must necessarily give way to broader notions of the general interest of the community. (Paragraph 106 of Kameshwarsingh's case, AIR 1952 SC 252 (supra)). The welfare activities of the Government in the interest of the general community whether of this State or other States must, therefore, fall within the import of 'public purpose'.

143. In order to determine a 'public purpose' underlying a specified object of requisition, the whole scheme shall have to be examined in its own setting of time and circumstances. However, I do not agree with the contention that the public purpose of a scheme must be judged on the merits of the particular object of requisitioning. To my mind, in judging the 'purpose, object or aim' of a scheme for deciding whether it is for a public purpose, we must confine ourselves to the general scheme itself apart from its application to a particular case. The sanction of the law authorizing the requisition and the scheme framed by State to implement a particular objective constitute the whole material on which the constitutionality of the scheme should be judged. If such a scheme gene-rally satisfies the test of a public purpose, the fact that it works as a hardship in particular cases would not make it invalid. The application of the Requisition Act to a particular case of requisitioning is an executive act within the discretion of the State or the authority concerned which is the sole judge of its merits and cannot be challenged in Court.

144. When a scheme is for constructing a hospital or college, the aim is not the acquisition of the particular site but the building of the hospital or college. Similarly, in the instant case, the aim is to provide equal distribution of foodgrains and not to acquire the godown belonging to this or that merchant. If the merit of a scheme is judged in the context of every particular case of requisitioning, it would be upheld in some cases as being for a 'public purpose' and held unconstitutional in others as being not so, although the 'object Or aim or purpose' of the scheme is the same.

145. Further, in judging the merits of a scheme with reference to the individual cases, we would be embarking upon detailed enquiries which must be left to be made by the local authorises. The existence of several other alternative buildings, the individual needs of different owners, their suitability for the particular purpose and a host of other questions, by their very nature, can never be satisfactorily dealt with in an enquiry by Court.

146. I may advert to certain passages in Corpus Juris Secundum (Volume 29). On the topic of 'Necessity of Exercising Power', we find the following on page 882 (para 89):

'The legislature may delegate the power of determining the necessity of exercising the power of eminent domain to public officers or boards or to private corporations vested with the power of eminent domain, and in the absence of any statutory provision submitting the matter to a Court or jury the decision of the question of necessity lies with the body of individuals to whom the State has delegated the authority to take. Generally, a determination by the grantee of the power is conclusive and is not subject to judicial review, in the absence of fraud, bad faith, or clear abuse of discretion.'

Further, on the 'Necessity of Taking Particular Property', we find on page 885 (para 90):

'In any event the condemner is held to have discretion in determining the necessity of particular property for the proposed use, and its decision will not be disturbed in the absence of fraud, had faith, or abuse of discretion.'

147. In Khushaldas Adani's case, AIR 1950 SC 222 (supra), a distinction was made between a decision about the existence of a public purpose and the necessity or expediency to pass an order of requisition in a particular case. The existence of the public purpose was held to be justiciable but not so the expediency to acquire any particular property. The following observations occur in paragraph 23:

'It is well settled that where an Act or regulation commits to an executive authority the decision of what is necessary or expedient, and that authority makes the decision it is not competent to the Courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith. Therefore, since the question as to whether it is necessary or expedient to acquire land (given a public purpose) has been left entirely to the satisfaction of the provincial Government, the opinion formed by it, provided it is formed in good faith, cannot be questioned. In other words, if there is a public purpose, the mere fact that to the Court or to any other person the requisition of the premises does not appear necessary or expedient in the public interest will not make the requisition bad.'

My reading of this passage is that if the public purpose exists in the general scheme it would make no difference if in the particular case of requisition a different view of fulfilment or non-fulfilment of public purpose is possible. The view of the State Government would prevail and the requisition would be good. The words in brackets (given a public purpose) appear to refer to the general purpose of the scheme and not to the merits of the requisition of a particular piece of land.

148. In Bhanji's case, (S) AIR 1955 SC 41 (supra), Bose, J., observed:

'A wide discretion must be left to Government to carry out the policy of the Act ..... the Courts cannot interfere simply because other methods are also possible even if the Courts think they are better, for in the end the Government must be left to determine which of many possible schemes is the best Government had to weigh many conflicting factors: the urgency of the situation, the need of reasonable dispatch, the expenditure of public funds which would be inevitable on long and protracted enquiries about the private affairs of thousands of applicants for accommodation, the maintenance of public moral by ensuring that the honest landlord who did his duty did not suffer ....'

149. The following passage (Section 4.11 on, p. 373. Vol. I, Nichols on Eminent Domain) may be usefully quoted:

'The overwhelming weight of authority makes clear beyond any possibility of doubt that the question of the necessity or expediency of a taking in eminent domain lies within the discretion of the legislature and is not a proper subject of judicial review. There are various aspects of this principle which have crystallized into specific questions. In accordance with the general principle, it has been held that the Courts may not inquire into the question

(1) Whether there is any necessity for the taking,

(2) Whether there is any need for resorting to eminent domain in effecting such acquisition,

(3) Whether the time is a fitting one,

(4) Whether there is a need for the property to the extent sought to be acquired,

(5) Whether there is a need for the particular tract sought to be acquired (and, correlatively, whether another tract would not better serve the purposes of the condemnor),

(6) Whether there is any need for the particular estate sought to be condemned,

(7) ................ ...'

Items (5) and (6) deserve particular attention in the instant case.

150. Requisition of property already devoted to a public use is permissible for another public use : (Corpus Juris Secundum, Vol. 29, Section 75). Property dedicated to charity by a privets individual is not immune from the sovereign's power to compulsorily acquire it for a public purpose. (See Surirya Pal Singh v. State of U. P., 1952 SCR 1056: (AIR 1952 SC 252)). It would thus appear thatthe use to which a property was put before requisition is not material in determining whether the requisition is for a public purpose. If the purpose, which is sought to be achieved is a 'public purpose', the earlier use of the 'requisitioned property will not make the requisition unconstitutional.

151. The validity of Section 3 of the Madhya Pradesh Accommodation (Requisition) Act was challenged in Manohar v. G.G. Desai, AIR 1951 Nag 33. It was held, that the law was not void because it authorizes requisitioning of occupied promises. The Division Bench in that case observed:

'The question next to be considered is whether the law, to the extent it permits requisitioning of occupied premises, is void because it is unreasonable. The question whether a statute or a provision therein is reasonable or not is not a matter upon which Courts of law are entitled to pronounce an opinion except when the Constitution authorises them so to do, as for instance, Clauses (3) to (6) of Article 19 of the Constitution These clauses have no relevance in the present case and no provision which is relevant was pointed out to us. We must therefore hold that even if the provisions permitting requisitioning of occupied property are regarded as unreasonable they are not for that reason alone invalid.'

It is true that the meaning of the expression 'public purpose' as occurring in Article 31 has not been discussed; but I refer to the decision only to show that occupied premises were requisitioned under the Act and the order was not held to be unconstitutional.

152. My conclusion is that the question whether a scheme has for its object or aim a 'public purpose' is to be decided on the merits of the scheme in general and not with reference to any particular case of acquisitioning or requisition, That is not to say that the individual is not or cannot be given any redress for his difficulties. The Legislature can and does, impose in suitable cases restrictions on the power by describing the particular type of land or building's that can be condemned for taking. Such a restriction is found in several Acts by providing that occupied buildings for places of worship etc., shall not be taken. Further, any act of the Government or its officers can be challenged as a colourable or fraudulent or mala fide exercise of the power and this would cover most of the cases in which the condemnce has a grievance. All that I say is that a scheme which is otherwise for the fulfilment of a public Purpose cannot be hit by Article 31 of the Constitution merely on the ground that it leads to hard-ship in individual cases.

153. I hold that the requisitioning orders were valid. I would, therefore, dismiss all the four petitions.

BY COURT

154. In view of the majority opinion delivered by us today, this petition is dismissed with costs. Counsel's fee Rs. 100/-'.


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