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Girdharlal Ganpatram Gandhi Vs. the Municipal Corporation of City of Ahmedabad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1967)8GLR500
AppellantGirdharlal Ganpatram Gandhi
RespondentThe Municipal Corporation of City of Ahmedabad and ors.
Cases ReferredMohammad Yasin v. The Dist. Magistrate
Excerpt:
- - 329 of 1960. the challenge was grounded mainly on the basis that the variation of the road line by the municipal commissioner under the provision to clause (a) of sub-section (1) of section 210 was bad and that, the variations could have been made by the municipal commissioner only after undergoing the procedure prescribed by clause (b) of the above sub-section. the above petitioners say that, they withdrew those petitions, because, they had erroneously not made the municipal commissioners and the state parties thereto and that, they had, equally erroneously, failed to make certain averments in those petitions which were necessary for a fair and just decision of the various contentions arising out of the issue of the above notices. the preamble says that it is expedient to provide.....n.m. miabhoy, c.j.1. this is a group of twenty-three writ petitions, each of which is filed by a landholder in the city of ahmedabad, challenging in each the validity, on the ground that a few sections of the bombay provincial municipal corporations act, 1949, bombay act no. 59 of 1949 (hereafter called the corporations act), are ultra vires, of a notice or notices issued by the commissioner, the municipal corporation of the city of ahmedabad (hereafter called the municipal commissioner) under section 212 of the corporal ions act, requiring each property-holder to show cause why his building or buildings or a part or parts thereof, which were within the regular line of a public street, should not be pulled down and the land within the said line acquired by him. the facts giving rise to.....
Judgment:

N.M. Miabhoy, C.J.

1. This is a group of twenty-three writ petitions, each of which is filed by a landholder in the city of Ahmedabad, challenging in each the validity, on the ground that a few sections of the Bombay Provincial Municipal Corporations Act, 1949, Bombay Act No. 59 of 1949 (hereafter called the Corporations Act), are ultra vires, of a notice or notices issued by the Commissioner, the Municipal Corporation of the City of Ahmedabad (hereafter called the Municipal Commissioner) under Section 212 of the Corporal ions Act, requiring each property-holder to show cause why his building or buildings or a part or parts thereof, which were within the regular line of a public street, should not be pulled down and the land within the said line acquired by him. The facts giving rise to these petitions are the same in a majority of cases and are similar in others, and a majority of the questions of law raised in each of the petitions is the same and the other questions of law are similar. Therefore, all the twenty-three petitions were called and heard together with the consent of the learned advocates appearing on both sides and 'we are delivering this common judgment to dispose of all the petitions.

2. The Corporations Act was passed by the Bombay Provincial Legislature on 29th December 1949, and, though it came into force in July 1951, it was deemed, by virtue of the provisions contained in Bombay Act 10 of 1953, to have come into force on 20th of November 1951. The Municipal Corporation of the City of Ahmedabad (hereafter called the Municipal Corporation) came to be established under the Corporations Act for the City of Ahmedabad. Before the Corporation was so established, the city of Ahmedabad was governed by the Bombay Municipal Boroughs Act, 1925, Bombay Act No. 18 of 1925 (hereafter called the Boroughs Act). In the year 1942, under Section 118 of the Boroughs Act, lines, called the regular lines of the public street (hereafter called road lines) were prescribed over certain areas abutting on public streets of certain localities situated in the area known as Pankor Naka in the city of Ahmedabad. Petitioners, whilst admitting that such road lines were prescribed, challenge the validity of such lines on certain grounds to be mentioned at the proper place. According to the Corporation, these road lines were in existence when the city of Ahmedabad became a Municipal Corporation. Respondents are the Municipal Corporation, its Municipal Commissioner and two ex-Municipal Commissioners and the State of Gujarat. Respondents contend that, under the proviso to Clause (a) of Sub-section (1) of Section 210 of the Corporations Act, the road lines prescribed whilst the city of Ahmedabad was a Municipal Borough, were deemed to be street lines for the purposes of the Corporations Act 'until a street line is prescribed by the Commissioner under mis clause.' In the case of petitioner of Special Civil Application No. 1454 of 1965, the road line so deemed to have been prescribed was varied by an order passed by the Municipal Commissioner under the proviso aforesaid. After this variation, the Municipal Commissioner issued a notice to that petitioner under Section 212, Sub-section (1), Clause (b), of the Corporations Act. That petitioner filed objections which were overruled. The Deputy Municipal Commissioner then issued another notice under Sub-section (2) of Section 212, calling upon that petitioner to remove his structure within seven days of the receipt of the notice and to create open space. The above two notices under Section 212 were challenged by the above petitioner in this Court in Special Civil Application No. 329 of 1960. The challenge was grounded mainly on the basis that the variation of the road line by the Municipal Commissioner under the provision to Clause (a) of Sub-section (1) of Section 210 was bad and that, the variations could have been made by the Municipal Commissioner only after undergoing the procedure prescribed by Clause (b) of the above sub-section. That contention was upheld by a Division Bench of this Court in the above case, since reported in I G.L.R. (1960), page 223- Girdharlal Ganpatram v. The Ahmedabad Municipal Corporation. It appears that the Municipal Commissioner thereafter, in a majority of the cases in these petitions, published notices prescribing, what is described in Clause (b) of Sub-section (1) of Section 210 as a fresh line, in substitution of the old lines and invited objections to such fresh lines. The Standing Committee of the Corporation considered the objections and overruled the same, and fresh road lines came to be prescribed under Clause (b) aforesaid in respect of properties covered by a majority of the petitions. In regard to all these properties, and also in regard to the properties covered in certain other petitions in which old road lines subsisted, the Municipal Commissioner issued notices under Section 212, Sub-section (1), Clause (b), calling upon the landholders to show cause why their building or buildings or part or parts thereof within the road lines should not be pulled down and the lands within the road lines acquired by the Municipal Commissioner, Petitioners filed objections, but, the same were overruled, Thereafter, with the approval of the Standing Committee, the Municipal Commissioner, acting under Sub-section (2) of Section 212 of the Corporations Act, issued final notices against all the property holders requiring them to pull down the buildings or parts thereof within seven days of the receipt of the notices. Petitioners of all the present petitions, except petitioners in Special Civil Applications Nos. 1568 of 1965, 1569 of 1965, 11 of 1966 and 14 of 1966 filed writ petitions in this Court challenging the above two notices issued by the Municipal Commissioner. These petitions were filed in 1962 and they came up for hearing at the fag end of 1965. Petitioners withdrew those petitions after they had been heard for some time. The above petitioners say that, they withdrew those petitions, because, they had erroneously not made the Municipal Commissioners and the State parties thereto and that, they had, equally erroneously, failed to make certain averments in those petitions which were necessary for a fair and just decision of the various contentions arising out of the issue of the above notices. Those petitioners thereafter filed the present petitions on 8th December 1965. Special Civil Applications Nos. 1568 and 1569, both of 1965, were also filed on the same date. The other two petitions were filed in January 1966. In these petitions, all petitioners challenge the validity of the two notices issued against them under Section 212 on the ground that Section 212 and some other allied sections of the Corporations Act are ultra vires and a few other grounds.

3. In order to understand and appreciate the various submissions made by Learned Counsel for petitioners in support of this group of petitions, it is necessary, in the first instance, to read a few sections of the Corporations Act. The preamble says that it is expedient to provide for the establishment of municipal corporations in the city of Ahmedabad and certain other cities with a view to ensure a better municipal government of those cities. Sub-section (3) of Section 1 brings Section 1 into force at once. It also brings into operation the other provisions of the Act in the city of Ahmedabad on such date as the State Government may by notification in the Official Gazette specify. Section 2, Clause (2) defines the expression 'appointed day' with reference to the city of Ahmedabad as meaning the day on which any local area is constituted the city of Ahmedabad. Section 3 confers power on the State Government to specify which local areas shall constitute the city of Ahmedabad. Clauses (5), (30), (65), (52) and (47) of Section 2 respectively define 'building', 'land', 'street', 'public street' and 'private street'. Clause (29) defines 'the Judge' as meaning, in the city of Ahmedabad the Judge of the Court of Small Causes. Clause (38) defines the expression 'municipal tax' as meaning any impost levied under the provisions of the Act. Section 4 enumerates three municipal authorities who are charged with carrying out the provisions of the Act. They are, (1) a Corporation, (2) a Standing Committee, and (3) a Municipal Commissioner. Section 5 enacts that a Municipal Corporation shall be a corporate body, shall have perpetual succession and a common seal and may sue and be sued by such name. Section 63 enumerates the obligatory duties of the Corporation. Amongst these duties are the duties to make reasonable and adequate provisions by lawful means or measures for the following matters: (1) the watering, scavenging and cleansing of all public streets and places in the city and the removal of all sweepings therefrom, (2) the lighting of public streets, (3) the construction, maintenance, alteration and improvement of public streets, and (4) the removal of obstructions and projections in or upon streets. Section 67 prescribes the functions of the municipal authorities. Firstly, it says that, each of the municipal authorities shall perform such of the functions as are prescribed for it by or under the Act. That section, after providing that the municipal government of the city shall vest in the Corporation, except as otherwise expressly provided in the Act, proceeds to state that the entire executive power for the purpose of carrying out the provisions of the Act or of any other enactment for the time being in force, shall vest in the Commissioner, subject to such restrictions, limitations or conditions as may be mentioned in the Act or any other law for the time being in force. This power is to be exercised by the Municipal Commissioner, subject, wherever it is in the Act expressly so directed, to the approval or sanction of the Corporation or the Standing Committee. In addition to this, Section 67 confers certain more powers on Commissioner in regard to certain other matters which it is not necessary to reproduce. Section 69 empowers the Municipal Commissioner to delegate his powers, duties or functions to any municipal officer by a general or special order in writing, but, requires him to obtain prior approval of the Standing Committee when delegating his powers, duties or functions under certain specified sections, sub-sections or clauses mentioned in Sub-section (2) of Section 69.

4. A perusal of the above provisions of the Act reveals that, the municipal government of the city of Ahmedabad vests in the Municipal Commissioner. It also reveals that, the improvement of the public streets is one of the obligatory duties of the Corporation.

5. Section 77 enacts that, whenever it is provided by the Act that the Commissioner may acquire, or whenever it is necessary or expedient for any purpose of the Act that the Commissioner shall acquire, any immovable property, such property may be acquired by the Commissioner by agreement on such terms and at such rates as shall be approved by the Standing Committee either generally for any class of cases or specially in any particular case. The Standing Committee is empowered to fix the maxima of the rates or prices at which the Commissioner can purchase an immovable property. Section 78 provides that, whenever the Commissioner is unable under Section 77 to acquire by agreement any immovable property, or whenever any immovable property is required for the purposes of the Act, the State Government may, in its discretion, order proceedings to be taken for acquiring the same on behalf of the Corporation, as if such property were land needed for a public purpose within the meaning of the Land Acquisition Act of 1894. However, such power is to be exercised 'upon the application of the Commissioner, made with the approval of the Standing Committee and subject to the other provisions of this Act. ' Sub-section (2) of Section 78 enacts that, whenever an application is made under Sub-section (1) for the acquisition of land for the purpose of providing a new street or for widening or improving an existing street, it shall be lawful for the Commissioner to apply for the acquisition of such additional land immediately adjoining the land to be occupied by such new street or existing street, as is required for the sites of buildings to be created on either side of the street, and such additional land shall be deemed to be required for the purposes of the Act. Sub-section (3) of Section 78 requires the Municipal Commissioner to pay forthwith the amount of compensation and all other charges incurred in the acquisition of any immovable property, subject to the other provisions of the Act, and says that 'thereupon the said property shall vest in the Corporation. ' Chapter XIV deals with 'Streets. ' Section 202 enacts that, all public streets, subject to certain exceptions, shall vest in the Corporation and be under the control of the Municipal Commissioner. Section 203 confers discretion upon the Municipal Commissioner, inter alia, to widen, extend or otherwise improve, public streets. Section 206 casts a duty upon the Corporation to specify from time to time, with the sanction of the State Government, the minimum width for different classes of public streets according to the nature of the traffic likely to be carried thereon.

6. Then comes a group of sections which are relevant for the present petitions, on the provisions of which a number of submissions are based and the validity of some of which has been challenged in the petition. These sections are Sections 209 to 214 and 216. At the present stage, we shall only indicate the broad provisions of these sections, and we shall indicate the details, if necessary, at a later stage and at a proper place in this judgment. Section 209 confers power upon the Commissioner (1) to acquire any land required for the purpose of opening, widening, extending, diverting or otherwise improving any public street; (2) to acquire, in addition to the said land and the buildings, if any, standing thereon, all such land with the buildings, if any, standing thereon, as it shall seem expedient for the Corporation to acquire outside the regular line, or of the intended regular line, of such street. Section 210 confers power upon the Commissioner (a) to prescribe a line on one or both sides of any public street, and (b) from time to time, but subject in each case to the previous approval of the Standing Committee, to prescribe a fresh line in substitution for any line so prescribed or for any part thereof. The proviso to Sub-section (1) prescribes a procedure which is to be undergone for prescribing a fresh line under Clause (b). The proviso says that, the Standing Committee shall not accord approval to the fresh line unless at least one month before the meeting of the Standing Committee at which the matter is to be decided, notice of the proposal has been given by the Commissioner by advertisement in the manner laid down in the proviso and until the Standing Committee has considered all objections to the said proposal made in writing and delivered in the way mentioned in the proviso. Sub-section (2) calls the line so prescribed as 'the regular line of the street. ' Sub-section (4) prohibits all persons from constructing or reconstructing any portion of any building on land within the regular road line, except with the written permission of the Commissioner and in accordance with the conditions imposed therein. It requires the Commissioner to report the grounds of such permission with his reasons in writing to the Standing Committee. Section 211 confers power on the Commissioner to require and enforce the setting back of buildings to the regular road line. It says that, if any building or any part of a building abutting on a public street is within the regular road line, the Commissioner may, whenever it is proposed (1) to rebuild such building or to take down such building to an extent exceeding one-half thereof above the ground level, or (b) to remove, reconstruct or make any addition to or structural alteration in any portion of such building which is within the regular road line, in any order which he issues concerning the rebuilding, alteration or repair of such building, require such building to be set back to the regular road line. Sub-section (2) of Section 211 says that, when any building or any part thereof within the regular road line falls down or is burnt down or is taken down, the Commissioner may at once take possession on behalf of the Corporation of the portion of the land within the regular road line theretofore occupied by the said building and, if necessary, clear the same. Sub-section (3) of Section 211 enacts that the land acquired Under Section 211 'shall thence forward be deemed a part of the public street and shall vest, as such, in the Corporation. ' Sub-section (1) of Section 212 confers some additional powers on the Commissioner to order a set back to the regular road line. It says that, if any building or any part thereof is within the regular road line, the Commissioner may, by written notice, require certain things to be done if, in his opinion, it is necessary to set back the building to the regular road line 'if the provisions of Section 211 do not apply. ' The things, which the Commissioner is required to do by written notice, are, to require the owner of the building concerned to show cause within a specified period why such building or any part thereof, which is within the road line 'shall not be pulled down and the land within the said line acquired by the Commissioner, ' or to require such owner to appear before him personally or by a duly authorised agent to show cause why the same action should not be taken in regard to the building concerned. Sub-section (2) of Section 212 provides that, if the owner concerned fails to show sufficient cause, the Commissioner may, with the approval of the Standing Committee, require the owner, by a written notice, to pull down the building or the part thereof which is within the regular road line. Sub-section (3) of Section 212 provides that, if the owner fails to pull down such building of any part thereof, the Commissioner may pull down the same. Sub-section (4) of Section 212 commands the Commissioner to take possession on behalf of the Corporation of the portion of the land within the road line which was theretofore occupied by the building concerned, and such land shall thence forward be deemed a part of the public street and shall vest as such in the Corporation. ' Section 212 applies to open land or to land occupied by such insubstantial things, as a platform, verandah, etc., within the regular road line. In regard to such open land, Section 213 confers power upon Commissioner, after giving notice to the owner of the land or the building concerned, to take possession on behalf of the Corporation of such land and, if necessary, to clear the same, and says that 'the land so acquired shall thenceforward be deemed a part of the public street. ' Section 214 gives liberty to Commissioner to acquire, at the request of the owner, the balance of the land outside the road line, if he is satisfied that such land will not be fit or suitable for any beneficial use, and says that 'such surplus land shall be deemed to be a part of the public street vesting in the Corporation. ' Section 216 provides for the payment of compensation for the land acquired under the foregoing Sections 211, 212, 213 or 216. It casts a duty upon the Commissioner to pay compensation to the owner of any building or land required for a public street under any of the above sections 'for any loss which such owner may sustain in consequence of such acquisition. There are two provisos to Section 216, both of which play an important role in the arguments of petitioners. The first proviso says that, the Commissioner shall take into consideration any increase or decrease in the value of the balance of the property left after the building or land is acquired, which increase or decrease is likely to accrue from the set back to the regular road line. It further requires the Commissioner to allow such increase or decrease in determining the amount of compensation. The second proviso says that, if any such increase in the value exceeds the amount of loss sustained or expenses incurred by the owner, the Commissioner may recover from such owner half the amount of such excess as a betterment charge. Sections 389 to 391 occur in Chapter XXIV under the heading 'Compensation. ' Section 389 commands the Commissioner or his delegate, in discharging his functions under the Act, to do as little damage as possible. It further commands the Commissioner 'to pay compensation assessed in the manner prescribed by or under this Act' for any damage sustained in consequence of the exercise among others of the power of acquiring any building or land required for a public street. Section 390 requires the Commissioner or his authorised subordinate, subject to the provisions of the Act, to determine the amount of compensation to be paid under Section 389 'after holding such enquiry as he thinks fit. ' Section 391 confers a right of appeal upon any person aggrieved by the decision of the Commissioner or his subordinate recorded under Section 390 to the Judge 'in accordance with the provisions of Chapter XXVI. ' Chapter XXVI, however, does not prescribe any particular procedure for preferring an appeal from an order determining the amount of compensation by the Commissioner. Section 434 makes, save as expressly provided by Chapter XXVI, the provisions of the Code of Civil Procedure relating to appeals from original decrees, applicable to appeals to the Judge from the orders of the Commissioner.

7. Besides the above provisions, reference also needs to be made to some provisions contained in Chapter XI of the Corporations Act with the heading 'Municipal Taxation. ' Section 127 casts a duty upon the Corporation to impose two taxes, one of which is described as property taxes. At the time when the impugned notices were issued, betterment charges leviable under Chapter XVI, which deals with 'Improvement Schemes', were not included in the definition of the expression 'property taxes. ' But, betterment charges of the aforesaid kind are now included in the expression 'property taxes' by virtue of an amendment introduced by the Gujarat Amendment Act XIX of 1964. Sub-section (2) of Section 127 confers power upon the Corporation to impose certain other taxes specified in Clauses (a) to (e) and 'any other tax which the State Legislature has power under the Constitution to impose in the State. ' Sub-section (4) emphasises the latter limitation by further providing that nothing in Section 127 'shall authorise the imposition of any tax which the State Legislature has no power to impose in the State under the Constitution. ' That completes the perusal of the relevant provisions of the Corporations Act which were referred to in the course of the arguments.

8. From the aforesaid resume, it is quite clear that the Corporations Act contemplates three modes available to Municipal Commissioner for procuring land and/or building for widening or otherwise improving public streets. The first mode is to purchase land for which provision is made in Section 77. The second mode is to invoke the help of the State Government to bring into play the machinery provided for by Land Acquisition Act. This is provided for by Section 78. The third mode is by exercise of powers conferred upon the Commissioner under Sections 211, 212 and 213 with the restrictions, conditions and limitations imposed by those three sections.

9. Now, the first and, if we may say so, the main attack, of petitioners is based on the submission that the scheme for acquisition formulated in the Corporations Act was beyond the legislative competence of the Provincial Legislature which enacted the Corporations Act, and/or that scheme violates the fundamental right of petitioners embodied in Articles 31(2) of the Constitution of India Petitioners also challenge the sections relating to acquisition and payment of compensation on the ground that they violate the fundamental rights embodied in Articles 14 and 19 of the Constitution.

10. After having set out the main provisions of the Corporations Act relevant in these petitions and the broad nature of the submissions urged in support of these petitions, we now set out the detailed submissions which were formulated by Mr. Mehta for our consideration and decision. These submissions are ten in number and are as follows:

(1) assuming that Sections 212 to 214,216 and 389 to 391 of the Corporations Act provide for a scheme for acquisition of land, the scheme is ultra vires Section 299, Government of India Act, 1935, and Article 31, Clause (2) of the Constitution of India (before or after the Fourth Amendment) because, the scheme does not provide for payment of compensation, nor does it specify principles on which and the manner in which the compensation is to be determined and/or given;

(2) in pith and substance, the levy of betterment charge under the two provisos of Sub-section (1) of Section 216 of the Corporations Act is a levy on the capital value of assets of an individual and, therefore, the law on this subject could have been enacted only by the Federal Legislature and not by the Provincial Legislature under the provisions contained in the Government of India Act, 1935, and, therefore the levy of betterment charge under the above two provisos was beyond the legislative competence of the Provincial Legislature;

(3) in any case, even if the levy of betterment charge is valid under the Government of India Act, it is hit now by the prohibition contained in Sub-section (4) of Section 127 of the Corporations Act, since the law for levying such a charge can, after the commencement of the Constitution, be enacted only by Parliament and not by a State Legislature;

(4) Section 212 of the Corporations Act does not provide for the requisition of land and buildings, or, in any event, of any building, within the meaning of the expression 'acquisition of property' used in Clauses (2) and (2A) of Article 31. Therefore, the validity of Sections 212 to 214, 216 and 389 to 391 is challengeable under Articles 13, 14, 19 and 31, Clause (1);

(5) Sections 212 to 214, 216 and 389 to 391 of the Corporations Act are ultra vires Article 14 of the Constitution of India,

(a) because Section 216 does not provide for payment of compensation for buildings demolished under Section 212, whereas, if land and building are acquired under Section 209, the building is to be compensated for;

(b) assuming that Section 216 provides for payment of compensation for building, that section takes away a part of such compensation, whereas, if a property is acquired under Section 209, there will be full compensation for land and building without any deduction on the ground of improvement of the unacquired portion of the land and building and also because compensation payable under Section 216 will not include the solatium of fifteen per cent which a person, whose land is acquired under the machinary of the Land Acquisition Act, gets over and above the market price;

(c) neither the Corporations Act, nor the rules nor the bye-laws, provide for any guiding principles to the Commissioner for determining the amount of compensation or betterment charges. These provisions leave the determination of both the questions to the unfettered, uncontrolled and arbitrary discretion of the Commissioner. The result is that, a person to whom compensation is payable under Section 216, may lose a substantial part 6f his compensation as determined under that section, whereas, a person whose land is acquired under Section 209, will get full compensation;

(d) the Commissioner has absolute discretion for acquiring land for a regular road line under the two provisions, namely, Section 209 or Section 212 of the Corporations Act. The procedure, the time at which a person will be deprived of his building, the amount of compensation payable to a person, will be different according as the Commissioner acts under Section 209, or Section 212. Thus, the Commissioner will be able to differentiate between two citizens similarly situated and will be able to treat such persons differently;

(6) Sections 212 to 214,216 and 389 to 391 are ultra vires Article 19(1) of the Constitution, because,

(a) they impose unreasonable restrictions inasmuch as no compensation is payable for building under Section 216;

(b) assuming that compensation is payable, the levy of betterment charges and deductions in the nature of improvement and the consideration of increase in the value of a property do not provide for payment of full compensation for an acquired property for the following three reasons: (i) just equivalent is denied; (ii) the schemes of acquisition do not lay down a just test for fixation of compensation but they are taking it away; and (iii) levy of betterment charges is acquisition of money not permitted by the Constitution;

(c) Sections 216 and 389 to 391 do not lay down any guiding principles for determining compensation or betterment charges and thereby give an unguided, uncontrolled and unfettered discretion to the Commissioner, thus making the above provisions unreasonable restrictions on the fundamental right to hold property;

(d) the power conferred upon the Municipal Commissioner to recover a certain percentage of betterment charges is unguided, uncontrolled and unfettered and, therefore, constitutes unreason able restrictions on the right to hold property;

(e) no rules or bye-laws have been framed for the guidance of the Commissioner, either for demolishing any building or for determination of compensation or betterment charges, and leave the exercise of the powers in respect of the above matters in the unguided, uncontrolled and unfettered discretion of the Municipal Commissioner, and therefore, the discretion conferred on the Municipal Commissioner is an unreasonable restriction on the right to hold property;

(f) the Corporations Act does not provide for any hearing by the Commissioner for fixing compensation or betterment charges and thus this constitutes unreasonable restriction on the aforesaid right to hold property;

(g) there is no provision for appeal before a building is pulled down, and the power of pulling down a building is left entirely in the absolute discretion of the Commissioner, and thus this constitutes unreasonable restriction on the right to hold property;

(7) Clauses (2) and (2A) of Article 31 apply to acquisition of land only and do not save an attack on the above sections of the Corporations Act for violation of the fundamental right enshrined in Article 19, Clause (1), Sub-clause (g);

(8) the above sections do not constitute one single scheme and, hence, if any one or more of them is liable to be struck down as unconstitutional, the rest of the sections must also be equally struck down, as the scheme is unseverable;

(9) notices issued under Section 212 do not ex facie show satisfaction of the Commissioner that it is necessary to set back the buildings and hence, violate the provisions of that sections; and

(10) the original regular road line of public street which was prescribed in 1942 was not prescribed by the Chief Officer as required by Section 118 of the Boroughs Act and the newly varied line contravenes the provisions contained in Section 210, Clause (a) of the Corporations Act. Therefore, the action proposed to be taken by the Commissioner is violative of Section 112 of the Boroughs Act and Section 210 of the Corporations Act.

11. Mr. Mehta dealt with the submissions in the above order. However, in our judgment, it will be convenient to deal with submissions Nos. (9) and (10) in the first instance, because, if any one of these sub missions is substantiated, then, it will go to the root of the matter and may not require consideration of the other submissions.

12. In our judgment, the ninth submission has no substance. Though the submission does not say so in express terms, Mr. Mehta's argument shows that the grievance was only in regard to the notices issued under Section 212, Sub-section (1), Clause (b) of the Corporations Act. That sub section mentions the conditions which are to be complied with before issuing the notices under Section 212(1)(b). One of the conditions is the formation of the opinion by the Commissioner that it was necessary to set back a building to the regular road line. Now, Mr. Mehta's contention is that, the notices issued in the present cases did not mention that the Commissioner had formed such an opinion. In our judgment, this submission is not factually correct. Copies of notices annexed in Special Civil Application No. 1454 of 1965 show that the Commissioner has prefaced the notices by stating that 'in my opinion it is necessary that the road should be opened (widened) by removing your said property situated within the said regular line of the street. ' In our judgment, the mere fact that the Commissioner has not used the expression 'set back' does not make the notices bad. The substance of the above content of the notices is that, in the opinion of the Commissioner, it was necessary that the building within the regular road line should be set back. When this was brought to the notice of Mr. Mehta, Mr. Mehta contended that, a broad statement of the aforesaid kind was not sufficient to comply with the above condition. According to Mr. Mehta, the notices must not only make a broad statement in terms of the condition laid down in Section 212, Sub-section (1), but, must also indicate why and how the above opinion was formed. In so far as this submission is made to substantiate the ground of the violation of the above condition precedent, in our judgment, there is no substance in the same. Sub-section (1) of Section 212 does not require the Commissioner to state reasons why and the circumstances under which he came to form the opinion in question. Whether a constitutional law makes it incumbent upon the Commissioner to state the reasons why the opinion was formed is entirely a different question. Similarly, the constitutional effect of a law and the provisions of the aforesaid kind and its repercussions on some of the constitutional provisions, on which Mr. Mehta relies, is also entirely a different question. In view of the conclusion that we have arrived at on submission No. 1, it is not necessary for us to discuss this point. However, in our judgment, the ninth submission, as formulated, is not justified and cannot be answered in a writ petition. Therefore, we reject the ninth submission formulated by Mr. Mehta.

13. As regards the tenth submission, it will be better if we first indicate the factual position. The regular road lines were prescribed under Section 118 of the Boroughs Act in regard to all properties covered by the present writ petitions. These road lines, however, were not prescribed by a common order. Such lines were prescribed either by a common or identical or similar or individual orders, in some cases, on identical days and in some others on different days. We do not consider it necessary to mention the details thereof, because, in our judgment, it is not necessary to do so. In twelve of the present petitions, the facts were the same and similar orders were made on one day. In three petitions, facts were identical and a common order was passed. In five petitions, facts were common and a common order was passed, and in three petitions, orders were passed in separate proceedings. These road lines were in existence at the time when the Corporations Act came into operation. Therefore, it is common ground that, by virtue of the proviso to Sub-section (1) of Section 210 of the Corporations Act, the road lines prescribed under the Boroughs Act were deemed to be the road lines prescribed under the Corporations Act 'until a street line is prescribed by the Commissioner under' Clause (a) of Sub-section (1). However, in regard to the properties mentioned in all the above petitions, except properties covered by six petitions, the road lines prescribed by the Boroughs Act were altered by the Commissioner by following the procedure prescribed in Clause (b) of Sub-section (1) of Section 210. In regard to six petitions, no such fresh lines were prescribed. Therefore, the consequence is that, in regard to the properties covered by these six petitions, the old road lines still subsist. Therefore, the legal position will have to be considered by dividing the petitions into two groups. The first group will consist of those petitions in regard to properties in which variations were made by the Commissioner. The second group will consist of those petitions in regard to properties in which old road lines still subsist.

14. So far as the first group of petitions is concerned, in our judgment, in any event, the submission has no merit. Even if we assume that there is substance in the submission that the original road lines as proposed under the Boroughs Act were bad, in our judgment, there cannot be any doubt that, that cannot affect the road lines as prescribed by the Municipal Commissioner under the Corporations Act. In that event, the variations made by the Municipal Commissioner would not be fresh road lines, but the prescribed lines would be original prescribed lines under Clause (a) of Section 210, Sub-section (1) of the Corporations Act, for, no dispute is raised by petitioners that the Municipal Commissioner had, after the coming into operation of that Act, prescribed a line under Clause (b) of Section 210, Sub-section (1). Even if the original road lines were bad, it does not necessarily follow that the fresh lines prescribed under Clause (b) would automatically be bad too. In that event, the fresh lines prescribed under Clause (b) would be the original prescribed lines under Clause (a). This follows from the fact that, the fresh lines prescribed under Clause (b) have initially to undergo the same procedure which the original prescribed lines have to undergo under Clause (a). Under Clause (a), all that is necessary is that, the Municipal Commissioner must prescribe a line. In order to impose a valid original prescribed line, no further formality is prescribed under Clause (a). Under Clause (b), the Municipal Commissioner must begin by prescribing a line. But, in order that this fresh line under Clause (b) may be valid, it has to undergo some previous procedure, and that procedure is that he must obtain the previous approval of the Standing Committee. The proviso to Clause (b) directs that, before the Standing Committee accords such approval, it must publish a notice of the type and period mentioned in the proviso, and consider all objections validly received against the proposed road line. Therefore, the difference between the procedure prescribed by Clause (b) is that, whereas in the latter, previous approval of the Standing Committee is necessary, in the former it is not. Now, in the present case, there is no doubt whatsoever that, the Standing Committee did not make any change to the road lines prescribed by the Municipal Commissioner. Those road lines remained intact without any change or alteration by the Standing Committee. If the Standing Committee had made any such change, the matter might have stood on a different footing and might require different consideration. But, in view of the fact that no change was made by the Standing Committee, all that has happened in first group of petitions is that, to the prescription made by the Municipal Commissioner was superadded the approval of the Standing Committee. In our judgment, the approval of the Standing Committee must be regarded to be a superfluous act if one proceeds on the basis that the original road lines prescribed under the Boroughs Act were invalid. In the aforesaid view of the matter, in our judgment, in regard to the first group of petitions, in any event, the road lines prescribed by the Municipal Commissioner under Clause (b) must be regarded to be valid road lines prescribed under Clause (a) to which no objection can be taken.

15. As regards the second group of petitions, the parties are not agreed as to facts. We understand that the facts are also not uniform in all those petitions. Therefore, a decision can be given on the legal submission on the facts admitted by respondents. Mr. Mehta concedes that, it is not necessary for us to allude to the pleadings in all the petitions. He says that, the pleadings in Special Civil Application No. 1563 of 1965 are typical of the pleadings in the other cases and the legal submission which petitioners intend to present in regard to the second group of six petitions can be easily urged and decided with reference to the facts mentioned in the affidavit in reply deposed to by the Deputy Estate Officer of the Municipal Corporation. Now, the facts which emerge from the affidavit of the latter may at first be mentioned. The Municipality of Ahmedabad was suspended by the Government of Bombay by an order dated 21st August 1942 in exercise of the power conferred upon that Government by Sub-rule (1) of Rule 83B of the Defence of India Rules, with effect from 22nd August 1942 for a period of six months. This suspension was extended from time to time upto March 31, 1944. On 6th May 1943, the Building Supervisor of the Municipality proposed a road line, as shown by yellow lines in a map prepared for the purpose. That proposal was signed by the Chief Officer on 7th May 1943. One Mr. Whitworth was appointed as Administrator under the order of suspension. Therefore, the Chief Officer forwarded the signed proposal to Mr. Whitworth who, by his order dated 7th May 1943, approved the proposal and ordered that objections be invited against the proposal. Accordingly, the Chief Officer issued a public notice dated 23rd of May 1943 and published it in two local newspapers. He also published special notices as required by one of the provisos to Sub-section (1) of Section 118 of the Boroughs Act, Then, on 23rd July 1943, Mr. Withworth signed an order to the effect that no objections were received and that the road line, as approved and 'notified under Order No. 104 dated 7th May 1943 in respect of the main Road No. 160 were confirmed.' This order was signed by the Chief Officer on 24th July 1943. Now, in order to understand the legal submission made by Mr. Mehta on the above facts; it is necessary first to read Section 118, Sub-section (1) of the Boroughs Act. That sub-section provides that, the Chief Officer shall, subject to the approval of the Municipality, prescribe a road line. The proviso to that sub-section says that, before such prescription, the Chief Officer shall give public and special notices of the proposal of such prescription and that, the Chief Officer shall comply with any orders passed by the Municipality 'after considering any written objection or suggestion in regard to such proposal' within the prescribed time limit. Now, the only point which Mr. Mehta submits for our consideration on the aforesaid facts is that they do not necessarily show that the road line was prescribed by the Chief Officer. According to Mr. Mehta, the affidavit filed by the Deputy Estate Officer only establishes that the road line was prescribed by Mr. Whitworth, the Administrator. Mr. Mehta submits that, in order to be a valid road line, it must be prescribed by the Chief Officer and not by the Municipality represented on the aforesaid facts by the Administrator. We are not satisfied that this submission is correct. The aforesaid submission ignores that part of the affidavit of the Estate Officer in which the officer has stated that, after the receipt of the proposal of the Chief Officer, Mr. Whitworth signed an order on 23rd July 1943 and that, that order was signed by the Chief Officer on 24th July 1943. Mr. Mehta reads the aforesaid part of the affidavit as meaning that the order prescribing the road lines was signed by Mr. Whitworth and that the affidavit does not make it clear that the signature of the Chief Officer was appended below that in token of the Chief Officer prescribing the line. In our judgment, such a reading of the affidavit would be against the tenor of the relevant parts of that affidavit. That affidavit must necessarily be read in the light of the provisions contained in Section 118, Sub-section (1), of the Boroughs Act. As required by that sub-section, the proposal initiated from the Chief Officer. That proposal was approved by the Administrator. Objections were invited by the Chief Officer and, after the period prescribed for the receipt of objections was over, the proposal was again, as required by one of the provisos, placed for the consideration of the Administrator who had the power to approve it, because the prescription of the road line was subject to the previous approval of the Municipality, in the present case the Administrator. Under the circumstances, it is quite clear that, when Mr. Whitworth signed the order on 23rd July 1943, the setting was complete for the Chief Officer to prescribe the line proposed by him and the signature appended by the Chief Officer below the order of the Administrator must be, in the exercise of the power conferred by the sub-section aforesaid, by the Chief Officer to prescribe the line. Mr. Mehta contends that, in any case, the affidavit leaves the matter vague and indefinite, and respondent Corporation must be called upon to produce the original order bearing the signature of the Chief Officer. We did not think it necessary to call upon respondent Corporation to do so. Under the aforesaid circumstances, in our judgment, the tenth submission. of Mr. Mehta must be rejected.

16. Before dealing with the other submissions, it will be convenient to refer to the prayers sought for by petitioners. Although, petitioners have, in their submissions, challenged the constitutional validity of some of the sections of the Corporations Act, they have not prayed for any declaration on that subject. The prayers which petitioners have asked for are all in relation to two notices issued by the Municipal Commissioner under Section 212 of the Corporations Act. Petitioners have invoked the jurisdiction of this Court under Article 226 of the Constitution. They pray for a writ of, or a writ in the nature of, mandamus, or a writ of, or a writ in the nature of, prohibition or any other appropriate writ, direction and/or order under that Article. They also pray for quashing the notices under Section 212 and ask for permanent injunctions restraining respondents, their officers, servants and agents from enforcing or taking steps for the enforcement of the above notices, including the demolition of the structures of petitioners, or acquisition of such structures or the land beneath them.

17. From the above set of submissions, it is clear that, petitioners challenge the constitutional validity of Sections 212 to 214, 216 and 389 to 391 of the Corporations Act on the allegation that those provisions violat Section 299 of the Government of India Act, 1935 and/or Article 31, Clause (2), Article 14 and Sub-clauses (f) and (g) of Clause (1) of Article 19 of the Constitution of India.

18. It will be convenient to deal first with the challenge under Section 299 of the Government of India Act and Clause (2) of Article 31 of the Constitution of India.

19. It will be convenient to read first the relevant parts of the above two fundamental laws. The parts of Section 299 of the Government of India Act, which are material, are Sub-sections (1) and (2) thereof, and they read as follows;:

299. (1) No person shall be deprived of his property in British India save by authority of law.

(2) Neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning, any commercial or industrial undertaking, unless the law provides for the payment of compensation, for the property acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, it is to be determined.

The parts of Article 31 which are relevant are Clauses (1) and (2) thereof. Clause (1), and before Clause (2) was amended by the Constitution (Fourth Amendment) Act, 1955, clause 2, read as follows:

31.(1) No person shall be deprived of his property save by authority of law.

(2) No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given.

Clause (2) of Article 31 reads as follows after the Fourth Amendment:

31.(1). ...

(2) 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 principles 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.

20. It will be noticed that, Sub-section (1) of Section 299 of the Government of India Act, and Clause (1) of Article 31, both before and after the Fourth Amendment, are in identical terms. The prohibition against deprivation of property save by authority of law in Sub-section (1) of Section 299 is a non-descript right, but, the same prohibition in Clause (1) of Article 31 is described in the Constitution as a fundamental right. Sub-section (2) of Section 299 deals with the topic of 'compulsory acquisition for public purpose', whereas the unamended and the amended Clause (2) of Article 31 deal with the topic also of 'taking possession' and requisitioning of property respectively. Both the sets of fundamental laws lay down certain conditions before a Legislature can deal with the respective topics dealt with by them. The conditions are three in number, the second condition being one of two alternatives. The second and the third conditions are worded in the same manner in both the sets of fundamental laws, but, the first condition is differently worded. In Sub-section (2) of Section 299, it is provided that the Legislatures mentioned therein shall not legislate on the topic of compulsory acquisition 'unless the law provides for the payment of compensation for the property acquired', whereas, under the unamended and the amended Clause (2) of Article 31, taking possession of and acquisition of property is prohibited 'unless the law provides for compensation for the property taken possession of or acquired. ' The first alternative of the second condition, which is common to both sets of fundamental laws, is that, the Legislature must fix the amount of the compensation. The second alternative of the second condition is also the same in both the sets, and states that, the law must specify the principles on which the compensation is to be determined. The third condition, which is also the same in both the sets of fundamental laws, is that, the Legislature must also specify 'the manner in which the compensation is to be determined' and, the Constitution further provides that the law must also specify the principles on which and the manner in which it is to be given.

21. The main difference between Sub-section (2) of Section 299 and Clause (2) of Article 31 is that, whereas, the former deals with legislative competence, the latter enshrines a fundamental right. Therefore, the consequence of a breach of the provision contained in Sub-section (2) of Section 299 is that, it will affect the competence of the Legislature concerned, whereas, a breach of Clause (2) of Article 31 violates a fundamental right. However, a breach of both leads to the same consequences. The law in either case will be bad and void. Therefore, if petitioners succeed in showing that the impugned legislation offends against Sub-section (2) of Section 299, that legislation will be void as being beyond the competence of the Provincial Legislature and it may not be necessary to consider the alleged violation of the fundamental right enshrined in Clause (2) of Article 31. However, if the impunged legislation survives the challenge under Sub-section (2) of Section 299, then, it will be valid law at the date of the commencement of our Constitution, and the challenges under the unamended and the amended Clause (2) of Article 31 to that legislation will have to be considered. If the first challenge is successful, then, it will throw a Shadow or eclipse upon that piece of legislation and if the amendment has the effect of removing that eclipse, the impugned legislation will revive. On the other hand, if the impugned legislation does not survive the challenge under the unamended Clause (2) of Article 31, then, it may not be necessary to consider the challenge under the amended Clause (2) thereof. If, on the other hand, it survives that challenge, then, the constitutional validity of the impugned legislation will have to be considered with reference to the amended Clause (2) of Article 31.

22. We propose to confine our attention to the challenge under Sub-section (2) of Section 299 in the first instance. Before we do so, we may point out at this stage the broad features of Sub-section (2), leaving the various contentions which are raised by the parties for discussion at a later stage after determining the true meaning of the relevant parts of the impugned legislation.

23. However, we may mention that the challenge, which is thrown by petitioners, is too wide and it may not be necessary to consider the whole of the challenge, in view of the facts on which the petitions are based. The challenge arises out of the issuance of the notices under Section 212. Therefore, at first, attention will be required to be concentrated on the constitutional validity or otherwise of Section 212 only, and the similar validity of the other impugned sections will have to be considered in the light of the success or otherwise of that challenge, and, even if that challenge appears prima facie to be successful, it will be a serious question for consideration whether the facts of this case at all require that the constitutional validity of the other sections should be determined. In our judgment, in order that we may not travel too wide into the challenge, it is necessary to bear the above considerations in mind.

24. Now, petitioners' contention is that, the impugned legislation violates all the three conditions which have been laid down in Sub-section (2) of Section 299. Firstly, they contend that, the impugned legislation does not provide for the payment of compensation for the acquired property. It is an admitted fact that the impugned legislation does not fix the amount of compensation. Petitioners contend, however, that the second alternative of the second condition is also not satisfied. They contend that, the impugned legislation does not specify the principles on which the amount of compensation is to be determined. Thirdly, they also contend that, that legislation does not specify the manner in which the amount is to be determined. The main question for consideration in the present group of cases is, whether, petitioners have been able to sustain the above contentions.

25. It will be noticed that, the first submission is based on an assumption that the relevant sections embody a scheme for acquisition of property. Though, the first submission is formulated in this halting manner, Mr. Mehta at no stage ever contended that those sections did not embody a scheme for acquisition of property. All the Learned Counsel were agreed that the sections embodied such a scheme, though, they were at variance as to the extent of property which could be the subject matter of acquisition under those sections. A perusal of the relevant sections of the Corporations Act shows that, the word 'acquire' and its cognate terms have not been used in the strict sense of acquisition in which those terms are used in the law relating to compulsory acquisition, especially as embodied as the Land Acquisition Act. The term 'acquire' and the cognate terms have been used in the Corporations Act in the general sense of procuration. of property, not necessarily by the exercise of the power of eminent domain, but, embraces within itself acquisition of property by all modes known to law. Another point which requires to be noticed is that, in the relevant sets of sections, there is no reference to the capacity of the Corporation to acquire properties. That matter is provided for by Section 76. It says that, the Corporation shall have the power to acquire and hold property within or without the limits of the city, the only limitation on the power being that it shall be 'for the purposes of this Act. ' Therefore, there is no doubt that the Corporation as such has the fullest power of acquiring properties in the generic sense by all modes known to law, including acquisition through the medium of compulsory acquisition by requesting the State Government to exercise its power of eminent domain. In the present group of petitions, we are not concerned with this power of the Corporation. We are concerned only with the power of the Municipal Commissioner, in the exercise of the executive power vested in him under Section 67 of the Corporations Act, to acquire property for the Corporation or for the purposes of the Act. All properties of the Corporation vest in the Corporation, Properties acquired by the Municipal Commissioner also vest in the Corporation, but, whereas when the Corporation acts, it acts like any other prospective owner of property, the Municipal Commissioner acts in his capacity of one of the three authorities of the municipal government to acquire properties for the Corporation. Now, from the relevant sets of sections, it is quite clear, as already indicated in an earlier part of this judgment, that the Municipal Commissioner can acquire property for the Corporation or for the purposes of the Act in one of the three modes. The first mode is the mode of private agreement. This power of the Municipal Commissioner is subject to the conditions and limitations laid down in Section 77 of the Corporations Act. We are not directly concerned with that section. The second mode is the one provided for in Section 78 of the Corporations Act. That mode is by invoking the State Government to exercise its power of emiment domain. This power is also subject to the conditions and limitations mentioned in that section which it is not necessary to notice for the purposes of these petitions. The important point to bear in mind is that, the section does not confer any power of eminent domain on the Municipal Commissioner. That power has at all times to be exercised by the State Government. The State Government is not bound to act on the invocation of its power by the Municipal Commissioner. Even if the State Government is minded to act as a result of the invocation, ' it can act only within the limits of law relating to compulsory acquisition. Section 78 indirectly amends the Land Acquisition Act I of 1894 by providing that in a case, where such an invocation happens to be made and land is proposed to be acquired by the State Government, then, the power of eminent domain shall be exercised as if such property 'were land needed for a public purpose within the meaning of the Land Acquisition Act, 1894. ' That section also confers power on the Municipal Commissioner to apply for acquisition of additional land when he is invoking the State Government to acquire land 'for the purpose of providing a new street or widening or improving an existing street' and enacts that 'such additional land shall be deemed to be required for the purposes of this Act. ' Another variation which Section 78 makes to the law of compulsory acquisition is that, whereas when land is acquired without any such invocation, the land would first vest in the Government and would become municipal property on the State Government transferring its right in such land to the Corporation, if acquisition is made as a result of the invocation by the Municipal Commissioner, the land would automatically vest in the Corporation on payment of the amount of compensation awarded and all other charges incurred in the acquisition of such land. Therefore, Sections 77 and 78 leave no doubt whatsoever that they do not confer any powers of compulsory acquisition on the Municipal Commissioner such as would attract the limitations embodied in Section 299, Sub-section (2) of the Government of India Act. The third mode, by which the Municipal Commissioner da acquire property is the mode prescribed by Sections 211, 212, 213 and 214. This power is confined only to acquisition of land for or in respect of public streets. These sections have been designed to convert private property into part of a public street directly without the intervention of a private purchase or compulsory acquisition by resort to the ordinary law relating to such acquisition. Private property becomes a part of a public street on the exercise of the power of the Municipal Commissioner and after undergoing the procedure prescribed by the above four sections. This power can be brought into play after the Municipal Commissioner has prescribed a road line under Section 210. The above group of sections show that the object of prescribing a road line is either to set back or to set forward lands and buildings to the prescribed road line. Each of the Sections 211, 212, 213 and 214, comes into play indifferent circumstances. In the first three, power is given to the Commissioner to take possession of 'land' which falls within the prescribed line. In Section 214, power is given to the Municipal Commissioner to acquire land of the kind mentioned therein in addition to the land falling within the road line. The first three sections say that, on such possession being taken, and Section 214 says that on the acquisition taking place, land 'shall thenceforward be deemed a part of the public street. ' In some of these sections, it is expressly stated that, on the event taking place, the land 'shall vest as such (public street) in the Corporation' or shall be 'vesting in the Corporation', whereas in Section 213, none of the latter expressions is used. But, that does not make any difference to the consequence of the aforesaid mode of acquisition of property, for, in Section 212 there is a general provision which says that 'all streets...which at any time become public streets...shall vest in the Corporation....' Therefore, there is no doubt, whatsoever that, the above provisions embody a scheme for compulsory acquisition of private land. The scheme is compulsory, because, the private landholder has no choice in the matter. It is a species of the exercise of the power of eminent domain by the State defined in Article 12 of the Constitution which admittedly would include a local authority like the Corporation. Under the circumstances, we have no doubt whatsoever that, the aforesaid group of sections must comply with the conditions laid down in Section 299, Sub-section (2) of the Government of India Act.

26. The next question which requires to be attended to is, what kind of property is compulsorily acquired by the exercise of the power Conferred on the Municipal Commissioner. We propose to confine our attention only to Section 212, and do not propose to consider this question with reference to the other allied sections. We propose to so confine our attention, because, on the facts of the case, we are required to decide the question of constitutionality with reference to Section 212 only. Learned Counsel are not agreed on this subject. According to Mr. Mehta, under Section 212, not only land, but the building on the land, which comes to be demolished prior to the taking of possession of the land, is the subject matter of compulsory acquisition. The learned acting Advocate General agrees with this submission. On the other hand, Mr. Vakil, Learned Counsel for the Corporation, contends that, land denuded of the building is only the subject matter of acquisition. It is important to clarify this position at this stage, because, the answer to this problem will have different constitutional consequences. Mr. Mehta contends that, all topics dealt with by Section 212 fall within the domain of compulsory acquisition. The learned acting Advocate General puts the same thing in a slightly different manner by contending that, though all the steps do not constitute compulsory acquisition, each step is one in the process of acquisition. On the other hand, Mr. Vakil contends, on the basis of the meaning assigned to the word 'acquisition' by the Federal Court in Lalsing's case, reported in , that the vesting part of the section falls in the domain of acquisition and the other parts of the section embody other and different powers which do not fall within the purview of Sub-section (2) of Section 299 of the Government of India Act.

27. Now, we may summarize the provisions contained in Section 212 of the Corporations Act. Sub-section (1) provides for three conditions which are to be satisfied before the power thereunder can be exercised. They are, (1) that the building or any part thereof must fall within the road line, (2) that the provisions of Section 211 do not apply, and (3) that, in the opinion of the Commissioner, it is necessary to set back the building to the road line. Sub-section (1) further says that, if these three conditions are satisfied, then, the Commissioner may issue a written notice requiring 'the owner of such building' to show cause why such building or any part thereof should not be pulled down and the land within the road line acquired by the Commissioner. The Commissioner is empowered to determine the time within which and the mode in which cause is to be shown. Sub-section (2) says that, if such owner fails to show sufficient cause the Commissioner may, with the sanction of the Standing Committee, require the owner by a written notice to pull down the building or any part thereof, which is within the road line, within a period specified in the notice. If the owner does not carry out the requisition, then, Sub-section (3) confers power on the Commissioner to pull down the building and to recover all expenses which may be incurred by him in so pulling down the building. Sub-section (4) commands the Commissioner to take possession on behalf of the Corporation of the portion of the land within the road line and, as already mentioned, states that thenceforward such land shall be deemed a part of the public street. Therefore, the powers which are conferred by Section 212 on the Commissioner are (1) the power to show cause why the building should not be pulled down and the land beneath acquired, (2) the power to require the owner to pull down the building, (3) the power to pull down the building if the owner does not do so, and (4) the power to take possession of the land denuded of the building. If, all or some of these powers are exercised, then, the section says that, the land, so denuded, shall be deemed a part of the public street. Now, in our judgment, the scheme of the section is very clear and admits of no doubt. The object of the scheme is to convert private land into a part of the public street. It is the land which becomes vested in the Corporation. Under the aforesaid scheme, the building at no time ever vests in the Corporation. It is only after the building is pulled down that the consequence of vesting takes place. The owner becomes divested of his property only after the land is denuded of the building and it is taken possession of by the Municipal Commissioner if the owner complies with the requisition by the Municipal Commissioner to pull down the building. It is quite clear that, what the owner is doing is the demolition of his own property. Even if the owner does not respect the command of the Municipal Commissioner and when the Municipal Commissioner himself pulls down the building, it is the building of the owner which the Commissioner pulls down and not the building of the Corporation. Therefore, the conclusion, in our judgment is inevitable that, it is only the land denuded of the building which becomes vested and which, therefore, is the subject matter of acquisition. The steps of demolition of the building which the Commissioner enjoins or which the Commissioner himself takes are all designed to achieve the above object. But, those steps for facilitating the design are not intended to vest the building in the Corporation prior to its demolition. But, at the same time, we cannot agree with Mr. Vakil's submission that, the power which the Commissioner exercises, antecedent to the vesting of the land, are independent powers. In our judgment, all the powers are interwoven and, though they culminate in the land vesting in the Corporation as a part of the public street, the other powers are not conferred on the Municipal Commissioner in themselves for their own sake, but, they have been conferred on him to facilitate the final achievement of converting private property into a part of the public street. 28. Now, the first submission of Mr. Mehta is that, though the owner loses his building in the above process, the Corporation does not compensate him for the loss of such building. This submission is based Of the interpretation of Section 216 of the Corporations Act which directs the Commissioner to pay compensation. Alternatively, Mr. Mehta contends that, even if compensation is paid for the loss of the building, Section 216 does not provide for payment of compensation to the holders of all the interests in the land acquired or the building lost. Thirdly, Mr. Mehta contends that, in any case, the provisos to Section 216 take away either a part or the whole of the compensation given by the principal section or, in some cases, even compel the owner to make a payment from his own pocket and thus the owner either loses the whole or a part of his compensation, or is required to pay something more. The first condition in Section 299, Sub-section (2) of the Government of India Act is stated to have been broken on the aforesaid interpretations of Section 216.

29. That takes us to Section 216 of the Corporations Act. That section requires the Commissioner to pay compensation 'to the owner of any building or land required for a public street under Sections 211, 212, 213 or 214 for any loss which such owner may sustain in consequence of his building or land being so acquired and for any expenses incurred by such owner in consequence of the order made by the Commissioner. ' Now, the contention of the learned acting Advocate General is that, under this section, the Commissioner is required to compensate for the building pulled down under Section 212 and to pay compensation to the holders of all the interests in such building. The learned acting Advocate General relies upon the use of the word 'building' at two places in Section 216. He contends that, if, really, the owner of the building were not to be compensated, then, the Legislature would have hardly mentioned 'building' at the above two places. On the other hand, Mr. Mehta contends that, the word 'building' has to be used because building is undoubtedly acquired under Sections 213 and 214 of the Corporations Act. Under Section 213, power is conferred on the Municipal Commissioner not only to acquire land, but, also 'a platform, Verandah, step, compound wall, hedge or fence or other such structure external to a building' which are all included in the definition of the word 'building' as given in Section 2, Sub-section (5) of the Corporations Act. The Commissioner can also acquire a building under Section 214. However, in our judgment, the building which is pulled down is also directed to be compensated for by Sub-section (1) of Section 216. The owner, who is required to be compensated for, is not only the owner of the building or land acquired, but, is a person to be compensated for any building required for a public street. In our judgment, it cannot be denied that, though the building is not acquired under Section 212, the building is required for a public street. That this is the correct interpretation is also further shown by the fact that the subsequent part of Sub-section (1) of Section 216 provides also for compensation 'for any expense incurred by such owner in consequence of the order made by the Commissioner. ' If the owner pulls down the building, he does so as a result of the order of the Municipal Commissioner and this part of the section can apply only to the case of a building which is pulled down under Section 212. It cannot apply to Sections 213 to 214. Under those two sections, the building is not required to be pulled down at all. The building is taken in possession of by the Municipal Commissioner. Sub-section (2) of Section 211 also cannot apply, because, there possession is taken only of the land and the Municipal Commissioner is not required to make an order for pulling down the building. The utmost that can be said is that the only section, other than Section 212, which can make the aforesaid part of Sub-section (1) of Section 216 applicable, is Sub-section (1) of Section 211. It is a moot point as to whether, when a building is required to be set back to the regular road line under Sub-section (1) of Section 211, the land beneath the same becomes a part of the public street under Sub-section (3) of Section 211, or whether, the Commissioner would be required to act under Section 218 as and when he intends to convert the land so denuded of the building into a part of the public street. But, even if it is so, it is quite clear that, under Section 211, Sub-section (1), the building is not being acquired. Under the circumstances, in our judgment, the learned acting Advocate Central's contention appears to be right for the reasons given by us. In that view of the matter, in our judgment, it cannot be stated that the building which is required to be pulled down under Section 212 remains uncompensated for.

30. In the above view of the matter, it may not be necessary to , consider a further question which was raised by Mr. Vakil, that further question being that, as the building is not acquired, the Legislature is not required to make any provision for compensation for the destruction of that building, in any case, under Sub-section (2) of Section 299 of the Government of India Act. Mr. Vakil's contention on this aspect of the matter is that, the word 'acquisition' as used in Sub-section (2) is in regard to a property the title in which comes to be transferred from the private owner to the State. He says that, that word 'acquisition' is used in that limited sense and does not take within its purview the extended meaning given to the word 'acquisition' by their Lordships of the Supreme Court whilst interpreting Clause (2) of Article 31 of the Constitution. Mr. Vakil's contention is that, there is no judgment of the Supreme Court interpreting the word 'acquisition' used in Sub-section (2) of Section 299. That word was interpreted by their Lordships of the Federal Court in Lalsing's case in the narrower sense and, Mr. Vakil says that, that interpretation is binding on this Court. On the other hand, Mr. Mehta contends that, Lalsing's case should not be regarded as good law in view of the interpretation placed by their Lordships of the Supreme Court in Dwarkadas Shrinivas v. The Sholapur Spinning & Weaving Co. Ltd. and Ors. reported in : [1954]1SCR674 , on the similar word 'acquisition' as used in Clause (2) of Article 31. Lalsing's case was referred to by their Lordships of the Supreme Court in Bhikaji Narain Dhakras and Ors. v. State of Madhya Pradesh and Anr. reported in : [1955]2SCR589 . At page 786 of the report in paragraph 11, their Lordships stated that Section 299 of the Government of India Act had been construed by the Federal Court in Lalsing v. The Central Provinces & Berar and in other cases referred to in Rajah of Robbili v. The State of Madras : AIR1952Mad203 and it was held by the Federal Court that the word 'acquisition' occurring in Section 299 had the limited meaning of actual transference of ownership and not the wide meaning of deprivation of any kind that had been given by the Supreme Court in State of West Bengal v. Subodh Gopal : [1954]1SCR587 to that word acquisition appearing in Article 31(2) in the light of the other provisions of the Constitution. It will be noticed that, in this case, their Lordships neither approved nor disapproved Lalsing 's case. In Dwarkadas Shrinivas v. The Sholapur Spinning & Weaving Co. Ltd. and Ors. reported in : [1954]1SCR674 , the argument that, the word 'acquisition' as used in article 31(2) had that, narrow meaning, was rejected by Mahajan J. (as he then was) and the learned Judge quoted with approval the majority view expressed by Rich J. in Minister of State for Army v. Dalsiel 68 Com. W.I.R. 261. The learned Judge though he was dealing with Clause (2) of Article 31, expressed a view that the true concept of the expression 'acquisition' as used in the Government of India Act was the one which was enunciated by Rich J in the above case. This is what the learned Judge has stated on which Mr. Mehta strongly relies:

In my judgment, the true concept of the expression 'acquisition' in our Constitution as well as in the Government of India Act is the one emunciated by Rich J. and the majority of the Court in 68 Com. W.I.R. 261 (Dalsiel's case). With great respect I am unable to accept the narrow view that 'acquisition' necessarily means acquisition of title in whole or part of the property.

The same Clause (2) of Article 31 again came up for consideration in the context of transference of title in State of West Bengal v. Subodh Gopal Base and Ors. reported in : [1954]1SCR587 , in which the judgment was delivered by Patanjali Sastri C. J. Mahajan J. concurring with him stated that the principles enunciated by Patanjali Sastri C. J. were the same as those which he had formulated in Sholapur Spinning & Weaving Co. 's case. In Subodh Gopal's case, their Lordships of the Supreme Court held that, the expression 'shall be taken possession of or acquired' in Clause (2) of Article 31 'implies such an appropriation of the property or abridgement of the incidents of its ownership as would amount to a deprivation of the owner. ' Dealing with the above topic in regard to the meaning of the word 'acquire' as used in Section 299, Sub-section (2) of the Government of India Act as interpreted by their Lordships of the Supreme Court, Ayyangar J., speaking for the Court, in Guru Dana Sharma v. State of Bihar and Anr. reported in : [1962]2SCR292 , observes as follows at page 1686, after quoting liberally from the judgment delivered in Sholapur Spinning and Weaving Co. 's case and Subodh Gopal's case:

It would be seen from the extracted passsages in the two judgments, that the reference to the meaning of 'acquired' in Section 299(2) of the Government of India Act, 1935 made by Mahajan J. as he then was, in Dwarkadas Shrinivas : [1954]1SCR674 (supra) was but an incidental remark by way of obiter and was not intended to be, a decision regarding the scope or content of that section. If support were needed for this position, reference may be made to the observations of Das, Acting C. J. in Bhikhaji Narain Dhakras v. State of Madhya Pradesh : [1955]2SCR589 .

Thereafter, the learned Judge quotes in extenso paragraph 11 from Bhikhaji Narain's 'case. In our judgment, in view of the aforesaid passage in Guru Dalta Sharma 's case, Mr. Mehta's contention cannot be upheld that their Lordships of the Supreme Court had differed from the view expressed in taking's case. Mr. Mehta, however, contends that, even if Mahajan J. has not differed, the passage relied on by him must be regarded to be an obiter dictum and would be a binding law on this Court in preference to the law laid down in Lalsing's case. However, Ayyangar J. has described the aforesaid passage not as obiter dictum, but, as 'incidental remark by way of obiter', and it is doubtful whether the passage can be regarded as obiter dictum. Alternatively, Mr. Mehta contends that, in any case, Lalsing's case must be regarded to have been considerably shaken by the observations made by Ayyangar J. in Guru Datta Sharma's case in paragraphs 29 and 30, in which, that learned Judge has quoted in extenso from the decision of House of Lords in Balfast Corporation v. G.R. Cars Ltd. (1950) A.C. 490. We are not in agreement with this submission also. It will be noticed that the words which the House of Lords have construed are not the word 'acquisition' or 'acquired', but the word 'take'. Under the circumstances, in our judgment, though in view of the fact that Section 299, Sub-section (2) of the Government of India Act, and the unamended Clause (2) of Article 31 are in pari malaria, the matter may require reconsideration in the light of the interpretation placed by their Lordships upon Clause (2) of Article 31. Prima facie it appears that Lalsing 's case still holds the field so far as this Court is concerned, in the sense that, it is a binding authority and that, the only Court which can override the effect of that decision, which is directly on the word 'acquisition' used in Sub-section (2) of Section 299 of the Government of India Act, must be held to be the Supreme Court. But, as we have already pointed out, in view of the decision that we have already reached, at this stage it is not necessary to take a final decision on this aspect of the matter, though at a later stage in the judgment, if it is necessary to do so, we would give effect to the opinion that we have expressed in regard to the binding nature of Lalsing's case.

31. The next question is that, Section 216, Sub-section (1) of the Corporations Act compensates only the interests of the owner of a building or land and does not compensate other interests therein, so that, in any case, in regard to such interests no provision has been made by the Corporations Act for payment of compensation within the meaning of Sub-section (2) of Section 299. This contention is based on the use of the expression 'owner' in Sub-section (1) of Section 216. It is contended that, in terms, Sub-section (1) of Section 216 directs the Commissioner to pay compensation 'to the owner of any building or land' and thus excludes all other interests. The term 'owner' has been defined in Clause (45) of Section 2 of the Corporations Act. The main definition says that it means, 'when used with reference to any premises, the person who receives the rent of the said premises, or who would be entitled to receive the rent thereof if the premises were let. ' Then, there is an inclusive definition which says that, the term 'owner' includes, inter alia, 'mortgagee in possession. ' The contention of Mr. Mehta is that, the above definition will not include such interests as those of non-usufructuary mortgagees, lessees not having a right to sublet, and the holders of easement right and a host of other interests which do not entitle holders thereof to let out the premises. The learned acting Advocate General, however, contends that, the term 'owner' as used in Sub-section (1) of Section 216 should not be construed with reference to the definition in Clause (45) of Section 2, but, must be construed according to the context in which, and the subject matter in regard to which, it is used. The learned acting Advocate General founds this argument on the opening words of Section 2 which says that the definitions apply 'unless there is something repugnant in the subject or context. ' However, the learned acting Advocate General was not able to point out to us anything in the subject or the context in which the word 'owner' is used in Section 216(1) which would entitle us to give it an extended meaning so as to include all interests in the building or land required for a public street for the purpose of compensation. We cannot do so simply because the result would be that the scheme of acquisition will become unconstitutional. It is true that, as far as possible, a construction should be placed on a statute which will render it constitutionally valid rather than make it constitutionally invalid. But, that principle will come into play only if there are two equally alternative and reasonable constructions probable on a statute. On the other hand, Mr. Mehta contends that, if the expression 'owner' is to be construed in regard to the subject or the context, then, that expression must still have a narrower meaning in the sense of the holder of an interest who has the right or power to demolish the building. Mr. Mehta contends that, if the notice, under Sub-section (2) of Section 212, is to demolish the building, he must have the right or the power to do so and that, such a right or power cannot be conferred by the issuance of a notification by the Municipal Commissioner. Therefore, according to Mr. Mehta, the term 'owner of a building' as used in Section 216 must be restricted to a person having such an interest in the building giving him right or power to demolish the same. Mr. Mehta contends that, therefore, the term 'owner of a building' must necessarily be restricted in Section 216, Sub-section (1) to an owner who has the right or power to demolish the building. In our judgment, the term 'owner' cannot be so restricted, because, it is quite clear that, if the building does not come to be demolished after the notice is given, then, the Commissioner has got the widest power of pulling the same down. That power is not contingent upon the fact that the person to whom the notice is issued has himself the power or right to demolish the building. Moreover, the expression 'owner of any building' as used in Sub-section (1) of Section 216 is not used only in relation to Section 212, but, in relation to a number of other sections and also in relation to any property. Under the circumstances, in our judgment, there is no reason to restrict the term 'owner' as used in Section 216, Sub-section (1) to only those who have the power to demolish the building. But, that term must necessarily, in our judgment, be restricted to the definition as given in Clause (45)-of Section 2 In that view of the matter, Mr. Mehta's contention is correct that Section 216 does not direct the Commissioner to compensate the holder of all the interests in the building proposed to be demolished.

32. However, the alternative submission of Learned Counsel for respondents is that, although Section 216, Sub-section (1) does not require the Commissioner to compensate such other interests, Sub-section (1) of Section 389 gives him that direction. According to the Learned Counsel, if Sections 216(1) and 389(1) are read together, between them they direct the Commissioner to compensate all the interest-holders in the building or land acquired under the aforesaid scheme of converting private property into a part of the public street. Mr. Mehta repels this contention and contends that, under Section 389, Sub-section (1), compensation is directed to be paid only in regard to work executed under the Act and not in regard to the properties acquired under the above scheme. As the answer to this problem depends upon the construction of Section 389, Sub-section (1), we propose to quote the subsection in extenso:

389. (1) In the exercise of the powers under the following provisions of this Act by the Commissioner or any other municipal officer or servant or any other person authorised by or under this Act to execute any work, as little damage as can be shall be done and compensation assessed in the manner prescribed by or under this Act shall be paid to any person who sustains damage in consequence of the exercise of such power, namely:

(a) carrying any municipal drain through, across or under any street or any place laid out as or intended for a street or across any coller or vault under any street-under Sub-section (1) of Section 155;

(b) entering upon and constructing any new drain or repairing or altering any municipal drain already constructed-under Sub-section (2) of Section 155;

(c) affixing of pipes or shafts for the purpose of ventilation of any drain or cess pool to any building or tree-under Sub-section (1) of Section 175;

(d) opening of any ground, any portion of a drain, any portion of a building or any work exterior to a building-under Section 182;

(e) entering upon, and passing through any land in the vicinity of a water work or conveying or causing to be conveyed men, materials and tools through such land-under Section 191;

(f) acquiring any building or land required for a public street-under Section 216;

(g) removing or altering a structure or fixture-under Sub-section (4) of Section 226, Sub-section (3) of Section 227 and Section 232.

(h) the rounding or a playing of a building at the comer of two or more streets under Section 243;

(i) cutting into, laying open or pulling down any building or work-under Section 261; (ii) the demolition or alteration of a hut or a shed-under Section 263;

(j) the demolition or an obstructive building-under Section 304;

(k) the destruction of an insanitary hut or shed-under Section 317;

(1) the destruction of any property in exercise of the powers vested in the Commissioner for preventing a dangerous or infectious disease-under Section 319;

(m) the exercise of powers or execution of any work in regard to which no express provision occurs in the Act, rules or by-laws for the payment of compensation.

In our judgment, the construction contended for by Learned Counsel for respondents is correct. The sub-section deals with two subjects, (I) the subject of damage, and (2) the subject of compensation. In regard to the first topic, Sub-section (2) directs the Municipal Commissioner, municipal officers, servants and other persons to do as little damage as can be. In regard to compensation, it says that it shall be paid 'to any person who sustains damage in consequence of the exercise of powers mentioned in Sub-section (1). Now, in regard to the direction of doing minimum damage, it appears to be given not only to the Municipal Commissioner, officers and servants, but, also to other persons. The expression 'authorised by or under this Act to execute any work' qualifies 'any other person' rather than the 'Municipal Commissioner, officers and servants. ' Having regard to the scheme of the Corporations Act as a whole, the expression, in our judgment, requires to be so construed. Mr. Mehta has not been able to show to us any provision in the Corporations Act where specific power has been given to the Municipal Commissioner, officers and servants to execute any work de hors the exercise of their powers under the Act. On the other hand, there are several sections in the Corporations Act, such as, Sections 168 and 173, where authority has been given to persons other than municipal officers and servants to execute work. Therefore, there appears to be distinct dichotomy in regard to persons to whom direction has been given under the above provision. When the Municipal Commissioner, officers and servants act, they act in exercise of their powers, whether the powers are powers conferred on them in furtherance of the municipal government or to execute any work, but, the persons other than the Municipal Commissioner, officers and servants are concerned, they are persons on whom authority must be conferred by or under the Act to execute any work. It is true that both the sets of persons act in exercise of the powers conferred upon them by the provisions mentioned in Sub-section (2). But, whereas the first set acts in exercise of all those provisions, whatever may be the nature of the power, the other set acts only in regard to and in pursuance of authority conferred by or under the Act 'to execute any work. ' That the above construction is the true construction is further emphasized by the fact that, in the latter part of the main sub-section, which relates to compensation, direction is for payment of compensation in regard to damage done 'in consequence of the exercise of such powers'. This clearly means that, the damage which is to be compensated for, is the damage which is the result of the exercise of the powers by the Municipal Commissioner, or the officers and or the servants, whatever may be the nature of the power which they have used. It would be very odd if Sub-section (1) of Section 389 were to be confined only to those powers which entitle the Municipal Commissioner, municipal officers and servants to execute any work and not to either give a direction to him to do the minimum damage in regard to the exercise of those other powers which do not entitle execution of any work or if a direction were to pay compensation only in regard to those acts which result in damage as a result of the power to execute any work and not to pay compensation in regard to other acts. That the aforesaid dichotomy between the exercise of powers and the execution of any work is contemplated by the Legislature is further emphasised by Clauses (g) and (m). If we turn to the sections which are referred to in Clause (g), we find that the acts which the municipal authorities are permitted to do under those sections are not acts for executing any work, but, are acts done in the exercise of certain powers. If any doubt were left in one's mind on the above constructions, the same, in our judgment, must stand dispelled by the way in which Clause (m) is worded. In that Clause (m), there is a distinct dichotomy of acts done in exercise of powers and the acts done in execution of any work. In the present case, we are concerned with Clause (0 specially. If the whole of Sub-section (1) is read in conjunction of Clause (f), in our judgment, the intention of the Legislature is quite clear. That intention is that, the Legislature has directed the two sets of persons aforesaid to do as minimum damage as can be when acquiring any building or land required for a public street. The Legislature has also given a direction to the authorities concerned to pay compensation under Section 216 for any damage substained in consequence of the exercise of the powers for acquisition of a building or land required for a public street. The direction is to pay compensation under Section 216, not only to the owners of such building or land, as directed in Section 216, Sub-section (1), but, to 'any person' as mentioned expressly in Sub-section (1) of Section 389. Under the circumstances, in our judgment, all the interests as are unprovided for in Section 216, Sub-section (1), are entitled to be compensated for any damage sustained in regard to any action taken by the Municipal Commissioner for conversion of private land into a part of public street. In that view of the matter, in our judgment, the first contention of Mr. Mehta should be rejected that all the interests in a building acquired under the scheme will not come to be compensated.

33. The next contention of Mr. Mehta is based upon the two provisos to Sub-section (1) of Section 216. There is no dispute as to the true construction of those two provisos. Both the provisos relate to, not the property acquired, but, to the balance of a property if the whole of the property does not come to be acquired. Both the provisos require the compensating authority to take into account the values of such part. The first proviso says that, if the balance of the property decrease in value, then, in awarding compensation for the property acquired, that shall be taken into consideration and allowed for in determining the amount of such compensation. Naturally, no dispute is raised by petitioners in regard to this part of the first proviso. That provision appears to be in line with the similar provision in Section 23 of the Land Acquisition Act which directs that any fall in the value of the balance of the property acquired shall be compensated for. But, the first proviso also says that, if there is any increase in the value of the balance of the property, then, the compensating authority shall also take it into consideration and allow for it in determining the amount of compensation. Mr. Mehta's contention is that, this part of the provision is in violation of the aforesaid constitutional requirement which directs payment of compensation for the property acquired. The practical effect of this part of the first proviso may be that, in a given case, no compensation whatever may come to be paid to the property-holder if the increase in the value of the balance of the property is equal to the amount of compensation which he is entitled to receive for the property acquired. The second proviso goes one step further. It says that, if the increase in the value of the balance of the property exceeds the amount of loss sustained or the expenses incurred by the owner whose property is acquired, 'the Commissioner may recover from such owner half the amount of such excess as a betterment charge. ' Therefore, the effect of this second proviso is that, in a given case, not only the owner of the property acquired will not receive any compensation whatever for the property acquired, but, he will have to part with his own money and the maximum amount which he can be called upon to pay will be one-half of the excess in the value of the balance of the property. Mr. Mehta raises a number of contentions in regard to the second proviso. Firstly, he contends that, this proviso emphasises his first point that no compensation will be paid for the property acquired. Secondly, he contends that, not only no compensation will be paid, but, the property-holder's whole property is expropriated. Thirdly, he contends that, the proviso is a taxing provision and introduces a principle altogether foreign to the concept of compensation in regard to which the fundamental law has directed a payment to be made. On the other hand, the contention of the learned acting Advocate General is that, both the aforesaid provisos in substance pertain to the principle of compensation and none of them is foreign to the concept of compensation. Alternatively, he submits that, if, for some reason, the second proviso is found not to deal with the compensation, then, it is a betterment charge which is well entrenched in modern economics which permits either appropriation of or a share in what is known as unearned increment-an increment which falls to the share of a property-holder for something which is not done by him or which is the result of the State action. Alternatively, the learned acting Advocate General submits that, even if for some reason, both or any of the two provisos are held to be foreign to the concept of compensation. both or any one of them can be separated from the main scheme and the whole scheme on that account cannot be held to be constitutionally void. He submits that the two provisos or any of them should, in that case, be struck down as constitutionally invalid. The learned acting Advocate General further contends that, if the second proviso is construed as a betterment charge, as it in terms calles it, then, no case is made out for holding such a charge constitutionally invalid. He says that, no such case is made out and it will be premature to undertake a consideration of that subject as it is nowhere alleged in the petition that any of petitioners in the present group is threatened with the levy of any such betterment charge. Mr. Vakil, whilst adopting all the arguments of the learned acting Advocate General, contends that, the first proviso is in effect one mode of payment of compensation. He contends that, when increase in the value is taken into account and allowed for, the municipal authorities in effect pay to the property-holder compensation for the property acquired by conferring on the property-holder an unearned increment. As regards the second proviso, he says that, when a demand is made by the municipal authorities for a share in the unearned increment, the compensation, already fully paid in the shape of a part of the unearned increment, remains intact and what is being done is that the municipal authorities call upon the property-holder to make a contribution from out of that part of the unearned increment which does not exhaust the full amount of compensation.

34. In our judgment, in order to appreciate the rival contentions in the context of the fundamental law, it would be better if first a construction of the first condition laid down by the fundamental law is undertaken. As already stated, that first condition is that, the law must provide 'for the payment of compensation for the property acquired. Now, in construing this condition, one must necessarily bear in mind that the whole of the fundamental law embodied in Sub-section (2) of Section 299 is designed, not to meet a single or a series of contingencies. It is a constitutional Provision enacted to apply to innumerable complexities which are bound to arise when the Legislature is making provision on the subject of acquisition. Therefore, it may be well to bear in mind that too narrow a construction should not be placed upon that provision such as will hamper legislation on the subject of acquisition rather than advance it. On the other hand, another equally important consideration must also be borne in mind, and that consideration is that, the Parliament, in its wisdom, has thought it fit, while conferring the power of eminent domain, to place fetters upon the legislative competence, so that, that power is not unjustly or arbitrarily exercised. Even if we do not pay any heed to the argument that, at the time when the Government of India Act was enacted, the concept of a welfare State, operating to subordinate private interests to public, bad not come into prominence, and we proceed on the basis that Parliament did not record holding of private property with that sanctity which some people would wish the State should, there is not the slightest doubt that the highest authorities have interpreted the aforesaid letter to mean that no property shall be acquired under the power of eminent domain without payment of just equivalent. This is how word compensation has been interpreted in the Government of India Act and under our Constitution. Therefore, the central idea which emerges from a construction of sub Section (2) of Section 299 as a whole as interpreted by the highest authorities, is that, the Legislature which confers power of acquisition must also simultaneously provide for the payment of a just equivalent. Broadly speaking, this would mean that, when a property is acquired, the acquiring authority must pay to the property-holder, in lieu of the property acquired that which would be a just return. Ordinarily, the test which would be applied would be whether, under the law, the property-holder would get in terms of currency the same value which has been lost to him by the process of acquisition. In Kameshwer Singh and Ors. v. The State of Bihar and Anr. reported in A.I.R. 1951 Pat. page 91, at pages 94 and 95, there are observations which show that, in the opinion of Sheerer J., the expression 'payment of compensation' used in Sub-section (2) of Section 299, means the payment of money. In State of West Bengal v. Mrs. Bells Banerjee and Ors. reported in : [1954]1SCR558 , the learned Attorney General is quoted at page 172 as having made the concession at the Bar that the word 'compensation' must mean full and fair money equivalent. Basing himself upon these two pronouncements, Mr. Mehta seriously contends that, compensation can only be awarded in terms of money and not in terms of benefits, as contended for by Mr. Vakil. In support of this argument, Mr. Mehta emphasises the word 'payment' in conjunction with 'compensation' and the 'amount' used in conjunction with the fixation of compensation. Mr. Mehta relies upon the significant omission of the word 'payment of in Clause (2) of Article 31. On these grounds, he contends that, the fundamental law clearly directs that compensation cannot be given in any form other than the currency of the State. In our judgment, this conclusion by no means follows. The expression 'amount' is not necessarily always used in connection with payment of currency or money. The word 'amount' connotes quantity and not always number. Though, it is incorrect English to speak of payment of land or benefits arising out of acquisition, it is still correct English to speak of payment of compensation in the shape of land or benefits. In our judgment, having regard to the fact that the fundamental law deals with a very wide and general concept, there is no reason for confining the word 'compensation' necessarily to the form of currency or money only. It is true that, in the ultimate analysis a just equivalent can be properly determined only if the money value of that which is lost is equivalent to the money value of that which is given. But, the non-payment of currency in every case cannot be regarded as an insuperable obstacle in the way of the enforcement of the fundamental law. If compensation is awarded in a form other than currency or money, then, instead of one, two properties will have to be valued and if a just equivalent is established, under the law, it is still payment of compensation. Under the circumstances, we are not in agreement with the general submission of Mr. Mehta that the contention of Mr. Vakil must be summarily rejected on the ground that the payment of compensation in the shapes of benefits is not contemplated by the fundamental law. In Attar Singh and Ors. v. The State of U.P. reported in : AIR1959SC564 , their Lordships upheld the validity of Section 29-B of the U. P. Consolidation of Holdings Act where part of the compensation was in the shape of benefits which the landholders got in the general plots carved out of small plots of land taken from them and used for certain general purposes.

35. The main submission of the learned acting Advocate General is based on this concept that, when a part of the property only is acquired and not the whole, then, it is permissible to value the property as a whole before determining the valuation of the part of the property. He says that, this process regards a property as one unit for the purposes of valuation. He contends that, if a property is regarded as one unit, then, it is not a violation of the principle of compensation to value also the balance of the property which is left after a part is acquired, with a view to determine the loss as whole arising out of the acquisition of the part. He says that, this principle has been recognised in the United States of America as a principle of compensation. In support of this principle, the learned acting Advocate General relies upon two American cases. They are Baumon v. Roes, reported in U.S. 167, page 548, and United States of America v. Victor N. Miller reported in U.S. 317, page 389. In both these cases, a set-off of an unearned increment for payment of compensation for property acquired has been held to be constitutionally valid. However, before applying the American authorities, it is necessary to bear in mind the constitutional provision which the learned American Judges were called upon to construe and apply. The constitutional provision was that, no private property shall be taken for public use 'without just compensation. ' The expression which we have to construe is not the same. The expression used in the fundamental law on the subject is 'payment of compensation for the property acquired. ' It will be noticed, as already stated, that Clause (2) of article 31 drops the words 'payment of before 'compensation. ' Therefore, whilst the learned American Judges had to construe that is just equivalent, what we are required to consider is, what is payment of compensation of property acquired. Reading the aforesaid expression, it is quite clear that the Parliament intended that not only compensation should be paid, but that, it should be paid for the acquired property. Having regard to our conclusion that compensation can be paid in the shape of benefits, probably, no importance can be attached to the argument that the concept propounded by the learned acting Advocate General cannot be given effect to. But, Mr. Mehta emphasises that, compensation is to be paid for the acquired property. In other words, he contends that, in payment of compensation, what has got to be looked to is the compensation in regard to the acquired property and any consideration which is given to the unacquired property introduce a principle which is foreign to the principle of compensation. Mr. Mehta looks at the position in the following way: He says that, what in effect Section 216, Sub-section (1) enacts is, first, value the part of the property acquired and then take away therefrom the unearned increment attributable to the unacquired property. He says that this is not giving compensation but it is really taking away a part or, in a given case, even the whole of the compensation which, after having been determined, instead of being paid, is retained or deprived of by the acquiring authority. According to Mr. Mehta, the Supreme Court has disapproved of the concept in State of Bihar v. Sir Kameshwar Singh reported in A.I.R. 1962 S.C. page 252. In that case, their Lordships struck down as constitutionally invalid only that part of the impugned enactment which acquired not only property, but, the arrears of rent, and their Lordships held that the latter provision was designed to take away compensation payable for the property acquired, so that, the overall effect of the piece of legislation was that property was being acquired at the expense of the property-holder himself. We do not think that this principle is applicable to the facts of the present case. In our judgment, although there is difference in the language between the Fifteenth Amendment on which the American decisions are based and the fundamental law that we are dealing with, there is nothing in the fundamental law which excludes the application of the principle enunciated by the American authorities. In our judgment, the first proviso can be justified under the fundamental law on the principle that in order to arrive at the correct valuation of the part of the property, the whole of the property of which it formed a part is to be valued at the date of the acquisition which must necessarily take within its purview the benefits which the non-acquired property has derived by the scheme of acquisition, and determine the loss to the property-holder on the basis of the overall picture which emerges as a result of the scheme of acquisition. But, however, in our judgment, whilst this may be so, the second proviso cannot come within the purview of the aforesaid expression used in the fundamental law. The second proviso does not deal with the question of payment of any compensation. In terms, it is not intended to achieve this object. The object there is, to employ the expression used in the second proviso itself, to recover something from the property-holder, a part of whose property has been acquired. We are unable to agree with the contention of the Learned Counsel for respondents that this proviso enunciates any principle of payment of compensation. It is a betterment charge. Though the proviso does not say in terms that it is a betterment charge, it does say that a part of the excess amount is to be recovered 'as if it is a betterment charge. Therefore, in our judgment, this second proviso must be regarded to be a provision which is foreign to the principle of compensation. But that does not necessarily mean that the proviso must be struck down. There are two considerations which must be borne in mind. One is that, if it is a part and parcel of the scheme of payment of compensation, then, it is likely to vitiate the whole provision for compensation, unless that part is severable. The second consideration is that the proviso is not a part and parcel of the scheme of compensation at all. It is a separate provision pertaining to another matter, for example, as contended for by the learned acting Advocate General, it may be a taxing provision. In our judgment, the second proviso is severable from the rest. The test which has been applied in a number of cases for determining whether an invalid provision is or is not severable from the valid one, is to discover what the intention of the Legislature would have been if it had known that the impugned portion was invalid at law. In our judgment, there cannot be any doubt that in a contingency of the aforesaid kind, the Legislature would have struck down the second proviso. The scheme of compensation as a whole is not in any way likely to be violated if the second proviso is so struck down. If the second proviso is a taxing provision, in our judgment, no case arises for our consideration as to whether the second proviso can or cannot be sustained as a taxing provision. Mr. Mehta has raised this question in submission No. 3. We called upon Mr. Mehta to satisfy us that any challenge was given to the second proviso on the ground that it was an unconstitutional levy. He was unable to point out anything from the pleadings which would show that the provision was so challenged. Apart from this, in our judgment, there is considerable force in the argument advanced by Learned Counsel for respondents that a consideration of the challenge on the above ground is premature. There is no averment whatsoever that all or any of the petitioners is threatened or is even likely to be called upon to pay any betterment charge. In the absence of any such threat or likelihood, in our judgment, it will be premature to consider the constitutional validity of the second proviso on the second basis. Under the circumstances, for the present, we would rest content by recording our decision that the second proviso does not pertain to the domain of compensation and being foreign cannot be regarded as a part and parcel of the provision relating to compensation, but, being severable, does not vitiate the scheme of compensation as formulated in Sub-section (1) of Section 216 on the grounds mentioned above.

36. For the above reasons, we record the conclusion that the scheme of compensation, including the first proviso, but excluding the second, as formulated in Section 216, Sub-section (1) for compensation of property acquired under Section 212 does not violate the above fundamental law enacted in Section 299, Sub-section (2), on the ground that it violates the first condition from out of the three embodied in that fundamental law.

37. That brings us to the question as to whether the second alter native of the second condition is or is not violated. That alternative second condition is that, the Legislature must specify the principles on which the compensation is to be determined. The rival contentions are as follows: Mr. Mehta contends that, neither Section 216, nor Section 389, lays down, much less specify, any principles for the determination of compensation. According to Mr. Mehta, what Section 216 does is only to emphasise the concept at the most, that a just equivalent for the loss of acquired property should be given to the property-holder and no more. According to him, at the best, it satisfies the first condition of the fundamental law, but, does not touch even a fringe of the second. Mr. Mehta further contends that, Section 389 does not deal with topic of principles for the determination of compensation for the property acquired under Section 212, or any other section, pertaining to acquisition. On the other hand, Learned Counsel for respondents contend that, Section 216 lays down the fundamental principle of compensation-the principle of full indemnity for the loss caused to the property-holder. They emphasise that the second condition does not require that alt principles known to law for compensation should be incorporated by the legislation. Whilst it commands the Legislature to specify the principles, it gives the widest discretion to the Legislature as to which out of the several principles should be selected, and so long as a principle or principles are so selected, the fundamental law is satisfied.

38. The validity of the contentions of either side depends upon the true construction and meaning of the expression 'any loss which such owner may sustain in consequence of his building or land being so acquired' used in Sub-section (1) of Section 216. We agree with the contention of Mr. Mehta that Section 389 does not give any additional direction on this subject. That section, as we have already held, directs compensation to be paid under Section 216. The only difference between the two sections is in regard to persons who are directed to be paid compensation; whereas Section 216 directs compensation to be paid to the owner, Section 389 directs compensation to be paid to any person. But, the two sections do not differ in the matter of the basis on which compensation is to be paid. Section 216 in terms directs compensation to be paid 'for any loss'. Section 389 says the same thing indirectly by making a reference to Section 216. The point for enquiry is whether, the direction that the interest-holders in the property acquired shall be paid compensation for any loss, satisfies the second condition in the fundamental law. The learned acting Advocate General says that, this is a legislative direction to the compensating authority to pay for the full loss, that is, to indemnify the interest-holder to the full extent of the damage caused to him. Mr. Mehta does not, and cannot, repel the above construction. But, the controversy between the two sides is that, whereas, according to Learned Counsel for respondents, the above direction is a specification of the principle of compensation, according to Mr. Mehta, the above direction is nothing but a rehash of the direction for payment of compensation. According to Mr. Mehta, this, at the most, means that the just equivalent is equal to full compensation for the damage caused by the acquisition. According to Mr. Mehta, that is not what is contemplated by the second condition aforesaid. We will just come in a moment as to what the true scope and ambit of the second condition is. But, whilst holding that any loss is equivalent to full loss and that the legislative fiat is that fullest compensation should be paid to the interest-holder, does it specify the principle on which the amount of compensation is to be determined The learned acting Advocate General concedes that Sub-section (1) of Section 216 does not directly mention the principle on which the amount of compensation is to be arrived at or determined. But, he says that, though this is so, indirectly, it incorporates the law of indemnity and, thereby, the Legislature has directed the compensating authority to apply the common law of indemnity on the basis of which damages are assessed for the causation of loss. Pausing here for a moment it is relevant to ask the question, what is the common law which assesses damages to be paid to a person to whom loss is caused Is that common law based on one principle alone, or are there several principles involved, one of which may be chosen by the compensating authority as determining the amount of a just equivalent None of Learned Counsel for respondents was able to enlighten us specifically on this subject. The learned acting Advocate General says that, the market value of the interest acquired is the measure of compensation under Sub-section (1) of Section 216. He founds his argument on the use of the word 'value' in connection with the remainder of the property acquired, used in the second proviso. He submits that, this is an indication of what the Legislature has in view, namely, that, in ascertaining the loss under the principal section, the value of the property acquired is the criterion on the basis of which loss is to be measured. In our judgment, the conclusion by no means follows. It is possible for the compensating authority to take the view that compensation for the loss may be determined on a principle other than the principle on the basis of which the unearned increment or the decrease has to be valued. But, even if one takes the view that the direction to pay compensation for the loss includes a direction for payment of loss on the basis of the value of the property, Sub-section (1) of Section 216 must be regarded to be vague, inasmuch as it does not give any indication as to the basis on which that value has to be measured. None of the two Sections 216 or 389, uses the word 'market value'. The law of acquisition does not use the expression 'market value' and the authorities have interpreted that term as inclusive of the potential value of a property. But, Learned Counsel for respondents have not been able to satisfy us that the concept of market value is incorporated in the expression 'compensation for any loss' used in Sub-section (1) of Section 216. In any case, it will not be surprising if two different compensating authorities, or even the same compensating authority, applies or excludes the principle of potential value in connection with different properties or at different times. The learned acting Advocate General makes a reference to Section 73 of the Contract Act. He says that, that section directs compensation to be assessed on the basis of loss or damage which arises naturally in the usual course of things from breach of contract or which the parties know when they made the contract to be likely to result from the breach of it. It is difficult to see how the principle enunciated in Section 73 can be made applicable to the question of assessment of damages under Sub-section (1) of Section 216. It is true that the first proviso does lay down a definite principle of compensation. It says in terms that if there is any decrease in the value of the remainder of the property, that value has got to be taken into account and allowed for. It says also that, if there is any unearned increment to the remainder of the property, it has also to be equally taken into account and allowed for. But, that proviso, whilst it is specific in so far as it goes, does not mention any principle on the basis of which the property acquired is to be compensated for. Beyond indicating that loss of acquired property is to be compensated for, Sub-section (1) of Section 216 does not mention any rule which the compensating authority is bound to follow or which he is debarred from following for the purpose of determining the amount of compensation. In our judgment, there is considerable force in the argument of Mr. Mehta that, the expression 'compensation for any loss' is tantamount to the expression 'just equivalent' and it is thus nothing but tautology and, at best, the guidance which the Legislature has given in Sub-section (1) of Section 216 is vague and nebulous in the sense that it does not direct the compensating authority what positive principle it should follow in the assessment of the damage and in arriving at the amount of compensation for the acquired property. That at once raises the question as to whether, the second condition in the fundamental law is satisfied when the Legislature is indefinite, uncertain or nebulous in the matter of giving direction as to how the final amount of compensation is to be determined or arrived at.

39. That leads us to the construction of the second condition of the fundamental law. Before doing so, it will be useful to repeat what we have already said in regard to the construction of Sub-section (2) of Section 299. It is a part of the fundamental law intended to operate, not only in a given set of circumstances, but, to operate in all kinds and varieties of situations. Therefore, the sub-section should not be construed as to require the Legislature to be hidebound in its approach whilst permitting the executive to exercise its power of eminent domain. But, at the same time, there is no doubt whatsoever that the fundamental law is to be found in the unqualified statement contained in Sub-section (1) that no person shall be deprived of his property without the authority of law. The Parliament, in its wisdom, has thus enacted in categorical and unequivocal terms that no person shall be deprived of his property except by a legislative fiat. Whilst the Parliament has permitted the Legislature to do so, there is equally no doubt that it has thought fit to place fetters on that legislative power by enacting that the legislative power shall be exercised by the Legislature concerned on certain conditions. Under the circumstances, the fetters or the conditions must be strictly construed. They are the conditions on the satisfaction of which alone the legislative power can work and confer authority on the executive to deprive a citizen of his private property. Now, the scheme of Sub-section (2) appears to be this. The Parliament has first directed that no property shall be acquired without payment of a just equivalent. But, the Parliament has not rest content only by giving this direction. The Parliament has further ruled that, in addition to a provision for payment of a just equivalent, the Legislature itself must determine either the amount of compensation or the principles on which it is to be determined. If the Parliament were to confine its direction only to the payment of just equivalent, it is possible to take the view that the executive may act in such a manner that the final amount of compensation which the citizen may get for his loss, may not reflect and carry out what the Parliament itself has directed. In any case, the Parliament appears to be quite definite that the Legislature concerned must not only provide for payment of a just equivalent, but, must also devote its thought and fix the amount of compensation which is to be paid, but, if it itself does not fix the amount, then, it must specify the principles on which the amount of compensation is to be determined. Therefore, in our judgment, the direction of the Parliament that the Legislature itself may, in a given case, fix the amount, gives a clue to the importance of the second alternative which the Legislature must provide for, if it itself does not fix the amount of compensation. From the point of view of the citizen, this is of a vital importance. A citizen may not be so much concerned with an academic provision providing for payment of just compensation as the actual amount of compensation which he is to receive If the Legislature itself fixes the amount, then, the power of acquisition can be challenged only on the ground whether the amount of compensation so fixed is or is not a just equivalent, and it cannot be denied that that matter is a justiciable issue. But, if the Legislature concerned does not itself fix the amount of compensation, then, the principles on which the amount is to be determined must be fixed. Therefore, in our judgment, whilst bearing in mind that the fundamental law is intended to operate in a variety of circumstances, one must also bear in mind that the provision has been introduced with the objective of compelling the Legislature concerned itself to see that in a case where the amount of compensation itself is not fixed by it, it shall specify the principles on which the amount of compensation is to be arrived at. Now, in this connection, it is important to notice that, the Parliament has used the verb 'specify' in connection with the word 'principles. ' It is also important to notice that, the principles which are to be specified are not the principles of compensation, but the principles relating to the determination of the amount of compensation. In our judgment, in the expression 'or specifies the principles on which and the manner in which it is to be determined, ' the pronoun 'it' necessarily relates to the noun 'amount' and not to 'compensation. ' Therefore, when the whole of the alternative second condition is read in its context, in our judgment, it is clear that it is enacted with a view to determine the amount of compensation-a subject which, though allied, is quite distinct from the subject of payment of compensation which is made a condition precedent by the first condition. The key words in the alter-native second condition are, (1) 'specifies', (2) 'the principles', (3) 'the amount' and (4) 'determination. ' The Parliamentary intent is to be gathered by giving due weight to each of the above words and by reading all of them conjointly. Now, it is important to notice that, the Parliament has not used a vague and nebulous word like 'indicate', but has used a definite and strong word 'specify. ' In Webster's New Twentieth Century Dictionary, Second Edition, Volume II, the word 'specify' has been defined as '(1) to mention, describe, or define in detail; to state definitely...(2)...(3) to state explicitly as a condition. ' In the Shorter Oxford English Dictionary, Third Edition, the same word has been defined as 'To mention, speak of, or name (something) definitely or explicitly; to set down or state categorically or particularly to relate in detail. ' The word 'principle' has been construed in a Madras case in D. Namesivava Mudaliar and Ors. v. The State of Madras and Ors. reported in : AIR1959Mad548 , as meaning 'rational rules appropriate to the subject matter. ' The word 'determination' has been defined in Shorter Oxford Little Dictionary as 'ascertaining or fixing as compensation' and, in the Shorter Oxford English Dictionary, the word 'determine' has been defined as 'to settle or decide, to decide upon, to resolve a question. ' Therefore, the aforesaid expressions taken together introduce both a generality and a particularity. Whereas the word 'principle' connotes a general idea, the words 'specifies' and 'determine' connote a particular idea. It is the reconciliation of these two ideas, in the context of the law of compensation in regard to acquisition, which, in our judgment, will bring out the Parliamentary intent. The legislative provision is necessary, when the amount is not fixed, to enunciate only a general rule. If the amount is not fixed, the Legislature can reveal its mind only by formulating general rules on the subject of the amount of compensation on which it is bound to legislate. But, whilst it can enunciate a general rule, the rule must not be left indefinite or vague, but, must be mentioned with sufficient particularity and explicitness so as to give a definite direction to the executive authority as to on what principles it is to act, and give a sufficiently well-defined idea to the citizen as to on what basis the amount of compensation is to be arrived at which he is ultimately to receive. In order that the fiat may be effective, the amount must be determined in the sense that it must be definitely fixed, and the amount has to be fixed not on nebulous or indefinite principles, any one of which the executive authority may draw upon, but, out of the several principles relevant to the fixation of compensation, the Legislature must mention, though in a general way, definitely which of the principle or principles from out of several must be applied for arriving at the just amount of compensation. In our judgment, reading the fundamental law in the aforesaid manner, the provision for payment of compensation for any loss, without indicating which principles are to be applied for determining the loss, does not satisfy the alternative second condition of the fundamental law. The learned acting Advocate General makes a distinction between the principles of compensation and methods of valuation. He contends that, the latter is different from the former and that, what Mr. Mehta has in view is the latter and not the former. He contends that, when the Legislature enacts that the market value is to be the measure of compensation, it enacts a general rule and the several modes in which the market value is to be arrived at, namely, the mode of the annual rental value, or the market price, or the potential value, are all methods of valuation which are matters of detail and are not required to be incorporated in the legislation relating to acquisition. On the other hand, Mr. Mehta contends that, Section 23 of the Land Acquisition Act should not be taken as a norm for ascertaining the meaning of the expression in Sub-section (2) of Section 299 used in the fundamental law. He contends that, that law was passed as far back as 1894, whereas the fundamental law was enacted in 1935. He further contends that, that law enacted in 1894 has not been and cannot have been the subject of judicial scrutiny, because of Clause (5) of Article 31. On the other hand, the learned acting Advocate General contends that, that Parliament must be a credited with knowledge of the existence of the Land Acquisition Act and must have known what principles were incorporated therein. He contends that, if the above wider meaning were to be given, then, the Land Acquisition Act would be rendered nugatory, or, in the opinion of the Parliament expressed in 1935, embody a law which, in its opinion, ought not to be on the statute book. The observations made by their Lordships of the Supreme Court in the case of P. Vajravelu Mudaliar and Anr. v. The Special Deputy Collector for Land Acquisition, West Madras and Anr. reported in : [1965]1SCR614 seem to show that their Lordships have regarded methods of valuation as synonymous with principles of compensation. In our judgment, it is not necessary to consider the question as to whether, the principles which have been laid down in Section 23 of the Land Acquisition Act do or do not conform to the second condition of the above fundamental law. It is true that judicial authorities have construed the expression 'market value' as including the value according to market price, or, according to the annual letting value and as inclusive of the potential value of the property concerned. It may be that, therefore, the term 'market value' in a given case may be regarded as a specification of a general principle. But, in our judgment, even if that view is taken, the above condition is not satisfied on the facts of this case. In our judgment, the provision contained in Sub-section (1) of Section 216 does not necessarily, much less explicitly, give a direction that the principle which is laid down in the first clause of Section 23 of the Land Acquisition Act has to be applied in determining the amount of compensation for the property acquired under Section 212. The learned acting Advocate General is right in contending that we should not test the present piece of legislation in the light of Section 23 alone. He draws our attention to the other clauses of Section 23 and says that, they also embody principles on which the amount of compensation is to be determined and, he contends that, the first proviso does incorporate one of those other principles. But, in our judgment, in order that the alternative second condition of the fundamental law may be satisfied, as pointed out already, the general rule of law on which the amount of compensation is to be determined, must not be only referred to or indicated, but, must be specified, in the sense that it must be mentioned explicitly, if not in detail, at least, with sufficient clarity, so that anybody who picks up the piece of legislation can say what exactly and precisely is the principle with reference to the law of acquisition in hand on the basis of which the amount of compensation has to be determined. That being specified, the only question which then can arise for consideration will be whether, the principle which has been so specified, is or is not related to the topic of compensation. Testing the above provision contained in Section 216, Sub-section (1), in connection with the challenge given to Section 212, we have come to the conclusion that that provision does not satisfy the alternative second condition of the fundamental law and, therefore, to that extent, Section 212 of the Corporations Act would be bad as violating the alternative of the second condition aforesaid.

40. In our judgment, the impugned legislation must fail also on the ground that the third condition is not satisfied by it. That third condition is that, the manner in which the amount of compensation is to be determined must also be specified. Now, the relevant provisions of the Corporations Act are Sections 389, 390 and 391. It is common ground that Section 216 does not deal with the topic of the manner in which compensation is to be determined. Now, Section 389 only states that compensation 'assessed in the manner prescribed by or under this Act shall be paid. Therefore, that section proprio vigors does not provide for the manner in which compensation is to be determined. The only question to which our attention was drawn on this subject is Section 390. None of Learned Counsel drew our attention to any other section or rule in the Act or the rule prescribed under the Act, which deals with this particular topic. Therefore, we must turn to Section 390 to answer the problem posed by petitioners. That section is as follows:

390. -Subject to the provisions of this Act, the Commissioner or such other officer as may be authorised by him in this behalf shall, after holding such inquiry as be thinks fit, determine the amount of compensation to be paid under Section 389.

The section begins by saying 'subject to the provisions of this Act. ' If the main section is held to deal with the authorities who are empowered to determine the amount of compensation, then, obviously, the reference is to Section 69 under which powers can be delegated by the Municipal Commissioner to his subordinate officers But, Learned Counsel on both sides were not able to draw our attention to any other provision of the Act, as earlier stated, which makes Section 390 subject to any other provision in the Act. The argument of Mr. Mehta is that, this section does not deal with the topic of the manner of the determination of the amount of compensation, but that it deals only with the topic as to who are or can be the authorities who can determine the amount of compensation. He says that, the expression 'after holding such inquiry as he thinks fit' even if construed as involving the manner in which the amount of compensation is to be determined, leaves the matter entirely in the hands of the compensation-determining authority and does not specify the manner which he is bound to follow. In our judgment, Mr. Mehta is not right in contending that Section 390 does not deal with the topic of the manner in which the amount of compensation is to be determined. In our judgment, whilst it is true that Section 390 specifies the authorities who are empowered to determine the amount of compensation, it is equally true that it also indicates the manner in which compensation is to be determined. This is why the Legislature in Section 389 has used the expression 'assessed in the manner prescribed by or under this Act. ' But, at the same time, in our judgment, there is no doubt whatsoever that the manner of determination of the amount of compensation is not specified by Section 390. It leaves the question entirely to the discretion of the authority empowered to determine the amount of compensation. The manner is left entirely to the subjective discretion of the authority concerned. Learned Counsel for respondents do not, and cannot, deny this. But, their contention is that, the authorities empowered under Section 390 to determine the amount of compensation are, though the executive of the Corporation, quasi-judicial authorities whilst doing the aforesaid work. The contention is that, therefore, the Legislature has specified the manner of determination by constituting those authorities quasi-judicial authorities. Mr. Mehta repels this contention in two ways: Firstly, he disputes the proposition that the authorities have been constituted quasi-judicial authorities. Secondly, he contends that, even if they are so constituted, the procedure which a quasi-judicial authority is required to follow is too nebulous and indefinite to permit one to say that the procedure has been specified by the Legislature itself. Now, there is no doubt whatsoever that, when an authority determines the amount of compensation under Section 390, he determines a Us between the Corporation and the citizen. The officer who is empowered to determine the amount is the very officer who, or his superior, has exercised the power which gives birth to the duty to determine the amount. Therefore, Mr. Mehta does not dispute the proposition that, in the aforesaid circumstances, (1) a duty to determine the question of fact affecting rights of subjects, and (2) a duty to act in good faith, arise under the circumstances. But, what Mr. Mehta contends is that, the third element involved for determining whether an act is a quasi-judicial act is absent and that third condition is that there must be a duty to act judicially. He says that, when the authority to determine a question is an outside authority, then, there is an implication that he has to act judicially. But, when the authority who has to determine an act is the very person whose act has given birth to the determination, then, it is the terms of the statute which must be examined to determine whether, in a particular case, duty to act judicially is cast on the statutory authority or not. For this proposition, Mr. Mehta relies upon an authority of this Court in Patel Gandalal Somnath and Ors. v. The State of Gujarat and Ors. reported in IV G.L.R. page 326. The principle has been enunciated in this way by Bhagwati J. speaking for the Court:

The general principles are:

(1) ...

(2) Where there are no two parties apart from the statutory authority And the contest is between the statutory authority proposing to do the act and the subject opposing it. In this class of cases, the terms of the statute must be examined in order to determine whether in any particular case a duty to act judicially is cast on the statutory authority

Applying the above test, it cannot, in our judgment, be said that the Municipal Commissioner or his delegate, when acting under Section 390, acts as a quasi-judicial authority. Apart from Section 390, as already stated, there is no provision in the Corporations Act which casts a duty upon the authority concerned to act in a quasi-judicial way. The Act does not prescribe any procedure as to the manner in which compensation is to be determined. The whole subject is left to the discretion of the municipal authority concerned. It is true that the decision given by such authority is not final, and an appeal lies under Section 391 from that decision to the judge of the Small Causes Court. It is true that the proceeding before the Judge undoubtedly is a judicial proceeding. Apart from the fact that the above authority is a Judge of the Small Causes Court, Section 434 applies the Code of Civil Procedure, 1908, to appeals from the orders of the Commissioner. But, the mere fact that the appellate proceedings are judicial proceedings, in our judgment, cannot convert the original proceedings into judicial of quasi-judicial proceedings if by themselves they are not so. Under the circumstances, in our judgment, the impugned legislation, Section 212, read with Sections 389 and 390, must also be regarded to be bad under the fundamental law on the ground that, the third condition as enunciated in Sub-section (2) of Section 299, has not been satisfied.

41. The above discussion leads on to the question as to which of the impugned provisions must be regarded as legislatively incompetent. The first submission is so couched as to make the whole scheme of acquisition as contained in Sections 212 to 214, 216 and 389 to 391 as ultra vires Section 299 of the Government of India Act. We have already indicated that the submission is too widely cast. Mr. Mehta wants us to strike down all the aforesaid sections or, in any case, the scheme embodied therein as ultra vires. We do not think we can accede to this request. We are concerned with the constitutional validity of the aforesaid scheme in so far as that scheme requires to be examined by us for the purpose of considering the validity or otherwise of the notices issued under Section 212. Commissioner has purported to act under the latter section only. Therefore, we do not think that we are called upon or can undertake to examine the validity of the scheme as embodied in the other sections. We are only concerned with the power of acquisition as conferred on the Municipal authorities under Section 212. Therefore, we can only proceed on the basis that Section 212, at the most, is bad on the ground that neither Section 212 nor any other provision in the Corporations Act (1) specifics principles on which the amount of compensation is to be determined, and (2) the manner in which the amount is to be determined. In doing so, we do not think we can strike down as constitutionally invalid Section 216 or Sections 389 to 391 of the Corporations Act. The latter sections are not by. themselves bad. They render Section 212 bad because they do not Contain, as contended for by respondents, provisions on the aforesaid two conditions. Those sections do not only deal with Section 212, but, they deal with a large number of other sections. Under the circumstances, we do not propose to say anything about the constitutional validity or otherwise of Sections 216 and 389 to 391 of the Corporations Act.

42. That brings us to the question as to what part of Section 212 is bad. The learned acting Advocate General did not dispute that none of the powers conferred upon the Municipal Commissioner by Section 212 can be salvaged if the scheme of acquisition as embodied therein is bad. This is in conformity with his argument that the powers conferred by that section are all steps in the process of acquisition of land for converting it into a part of the public street. However, Mr. Vakil contends otherwise. He contends that, Section 212 does not only embody the power of acquisition, but, conglomerates a number of other powers, and the only provision which is hit on the ground of legislative incompetence is the provision in regard to the vesting of land in the Corporation. He contends that, the rest of the provisions or powers are independent and separate and are not touched by the fact that the last provision is legislatively incompetent We have dealt with this aspect of the matter in a previous part of this judgment. For the reasons given therein, we cannot uphold this contention of Mr. Vakil. In the first instance, it is not correct to say that it is Section 212 which vests the property in the land in the Corporation. As we have already pointed out, that appears to be a superfluous provision. The real culmination of the powers embodied in Section 212 is the conversion of private land into a part of the public street and, as already, indicated, it is Section 202 of the Corporations Act under which such part will vest in the Corporation. Mr. Vakil replies that, in that case, a part of Section 202 should be held as constitutionally invalid but not the other powers which are embodied in Section 212. In our judgment, the contention of Mr. Vakil deserves to be negatived on another ground also. As we have already pointed out, the other powers are not independent or inseparable powers. On the contrary in our judgment, all those powers have been created only with a view to convert ultimately private property into a part of the public street, and they are all so much interwoven with the final goal that, in our judgment, those powers would never have been allowed to. remain by the Legislature if the final goal was found to be unconstitutional. It is easy to see that, if only the vesting clause is held to be unconstitutional, then, the Legislature would be guilty of ruction. If the other powers are allowed to be retained with the municipal authorities, those powers would leave the Corporation hanging in the air and would cause unnecessary damage to the property-owner. Under those other powers, the Municipal Commissioner may require or enforce demolition of a building, but, land will remain, after such demolition, vested in the owner. The owner would be deprived of his superstructure but will not lose his land. The Corporation will pay compensation for the demolition of the building but will not achieve the object of converting the land into a part of the public street. Under the circumstances, in our judgment, from any stand point, the provisions contained in Section 212 conferring Various powers of issuing notices, requiring demolition or authorising demolition, must be held to be unconstitutional.

43. We have considered the argument of Mr. Vakil in the last paragraph on the basis that Lalsing's case is still good law. If the word 'acquisition; ' used in Section 299, Sub-section (2), is given the extended meaning, which it has now been given by the Supreme Court in Clause (2) of Article 31, then, it is quite clear that the whole scheme of acquisition as embodied in Section 212 of the Corporations Act would be bad. For the reasons given in the previous paragraph and also in a previous part of this judgment, we do not propose to decide whether Lalsing 's case is still good law or not.

44. In view of our aforesaid conclusion that Section 212 is legislatively incompetent and therefore constitutionally bad, that provision must be regarded to be bad law on the date on which the Corporations Act was enacted. That provision would also be bad under Article 13 of our Constitution. In that view of the matter, it is not necessary for us to consider the second part of the first submission as to whether, the aforesaid provision is or is not constitutionally bad and void under Clause (2) of Article 31 as enacted at the commencement of our Constitution. But, it is not disputed by either side that, if the aforesaid provision is constitutionally bad, and still-born when the Corporations Act was enacted, it would be equally bad and void under the unamended Clause (2) of Article 31 of the Constitution of India, as that provision was in the same terms as Sub-section (2) of Section 299 of the Government of India Act. In that view of the matter, it is not necessary to consider as to what would be the constitutional position of Section 212 under the amended Clause (2) of Article 31. But, having regard to the fact that conditions numbers two and three remain unaltered under the amendment, it cannot be denied that the aforesaid provision would be bad and void also under the amended Clause (2) of Article 31.

45. That brings us to the second and the third submissions of Mr. Mehta. Having regard to our conclusion that the first proviso embodies the relevant principle of compensation, it follows that the submission that proviso is constitutionally bad on the ground that it falls within the legislative competence of the Federal Legislature and not the Provincial Legislature, must be rejected. We have held that the second proviso does not deal with the question of compensation and is, therefore, foreign to that particular question. But, in view of the fact that we are holding Section 212 to be legislatively incompetent, it is not necessary for us, to decide the constitutional validity of that proviso under the second submission. We, have already indicated the reasons as to why we do not. propose to consider whether that proviso is or is not a levy of betterment charge. For the same reasons, we do not propose also to record a decision on submission No. 3 which raises the same question with reference to our Constitution. In a previous part of this judgment, we have also pointed out that this question does not require our decision, because, that question has not been pleaded and, in any case, the question as to whether the second proviso levies a betterment charge is premature and does not call for an immediate decision.

46. In the aforesaid view of the matter, no decision requires to be recorded on submission No. 4 also. However, in view of the fact that the term 'acquisition' as used in Clause (2) of Article 31 has been given an extended meaning by their Lordships of the Supreme Court in Subodh Gopal's case, already referred to, it cannot be doubted that Section 212 provides for the law relating to acquisition of land and building both. But, it is equally clear that, Section 212 of the Corporations Act would not be existing law within the meaning of Clause (5) inasmuch as it was enacted within eighteen months before the commencement of the Constitution, but no certificate was applied for or given by the President under Clause (6) thereof. Under the circumstances, if a decision were to be recorded, it would have been easy to hold that the law contained in Section 212 is challengeable under Article 13 read with Articles 14, 19 and 31, Clause (1).

47. Before we deal with submissions Nos. 5, 6 and 7, which raise questions under Articles 14 and 19, we propose to answer submission No. 8. We do not think we can agree with the submission that all the Sections 211, 212, 213, 214, 216 and 389 to 391, embody a single scheme and, therefore, if Section 212 deserves to be struck down as unconstitutional, the other sections must also be equally struck down. In the first instance, petitioners have not asked for such a general declaration. In the second instance, it is not correct to say that the above sections embody a single scheme. Each section is designed to meet a particular contingency and comes into operation under different conditions and circumstances. In any case, the only prayer which petitioners have asked for is quashing the notices under Section 212 and permanent injunctions restraining respondents from enforcing these notices. In view of this limited nature of prayers, it is not necessary to record any decision on submission No. 8 also.

48. That leaves only submissions Nos. 5, 6 and 7. In view of our aforesaid conclusion regarding the constitutional invalidity of Section 212 under Sub-section (2) of Section 299, strictly speaking, it is not necessary to consider the above three submissions. However, in view of the fact that we have heard full-fledged arguments on both sides on submission No. 7, we propose to record our decision thereon. As regards submissions Nos. 5 and 6, we do not propose to say anything in this judgment in view of our conclusion arrived at on submission No. 1.

49. We now propose to consider submission No. 7. That submission is that, the impugned provision is bad as being violative of petitioner's fundamental right under Article 19, Clause (1), Sub-clause (g). That sub-clause guarantees to all citizens the fundamental right 'to practice any, profession, or to carry on any occupation, trade or business. ' It is difficult to appreciate how the above fundamental right is violated by the scheme of acquisition as formulated in Section 212. That section does not violate or abridge the above fundamental right in any way. The section empowers the municipal authorities to acquire property. It does not deal with, much less affect, the citizen's right to practice a profession or to carry on his business or trade. Mr. Mehta's contention is that, by acquiring the property in which petitioners are carrying on business, the above provision affects their right to carry on trade or business. We cannot agree. A distinction must be made between the right to practice a profession or to carry on trade or business and the place where the profession or the trade or the business is practised or carried on. If a person is deprived of the first right, then, the action of the authority falls within the purview of Article 19(1)(g). But, if a person is deprived of the second right, then, he is deprived of his property as such but his right to carry on business or trade or to practice a profession is not affected in any way. In the present group of petitions, if and when petitioners are deprived of their properties in which they are carrying on their business, what they are being deprived of is the property in which they carry on business, and not their right to carry on such business. The latter right remains intact and is not in any way affected by the impugned legislation. The law does not say that, after the acquisition is made, petitioners shall not carry on business at any place in India. It may be that, if a person is deprived of the place where he carries on his business, he finds difficulty in establishing the same business at another place. But, that, by no stretch of imagination, can be regarded as a violation of the right to carry on business or an abridgement thereof. All that the present piece of legislation tries to deal with is the citizen's right to property. Therefore, the proper clause which can apply to a case of the present type is 19(1)(f) and not 19(1)(g). There is a direct authority of the Allahabad High Court on this subject in the case of Mohammad Yasin v. The Dist. Magistrate, Kanpur and Anr. reported in : AIR1954All317 . We respectfully agree with this decision.

In view of our finding on submission No. 1, we propose to issue writs of mandamus in each of the petitions, directing the Municipal Commissioner to treat the notice or notices, as the case may be, issued under Section 212 of the Corporations Act, as null and void, and further directing him not to act upon or in furtherance of the notice or notices, as the case may be. We order accordingly.

50. Rule absolute to the extent mentioned above with costs.


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