1. This is an application under Article 226 of the Constitution of India by Surajmal', owner of firm Badichand Bachhraj of gratapgarh praying for a writ of mandamus or such other appropriate direction against the Rajasthan State as the case may require.
2. The application in this case was made on the 6th of September, 1951. The applicant is the licensee of the Power House at Pratapgarh. He increased the rates of supply of electricity for domestic and industrial consumers from the 1st of May 1951. The Government of Rajasthan however did not approve of this increase in rates and tried to persuade the applicant to continue charging the old rates till such time as the Government appointed a rating committee. The applicant, however, refused to agree to this on the ground that this would ruin his financial condition. Thereupon, on the 29th of August, 1951, the State of Rajasthan served an order which is said to have been passed under Section 33 of the Rajasthan Public Security Ordinance, 1949 (Ordinance No. 26 of 1949). By this order, the applicant was directed to carry on the working of the Power House at Pratapgarh until further order and to abstain from closing the same and from removing a.ny machinery appertaining to the said Power House. The applicant asked for withdrawal of the order and when it was not withdrawn, filed the present application on the 6th of September 1951, praying for certain reliefs which it is not necessary to set down here. Before, however, the application came up for hearing, the State took possession of the Power House by forcibly breaking open the lock put upon it by the applicant. In view of this changed situation, the applicant filed another affidavit on the 17th of September 1951, in which he set out these facts and said that the taking of possession of the Power House without any authority of law and without compensation was a breach of the provisions of Articles 31(1) and 31(2) of the Constitution of India as Ordinance No. XXVI of 1949 had expired on the 9th of September 1951. It was also urgedthat Section 33 of the Rajasthan Public Security Ordinance, 1949 (No. 26 of 1949) was invalid as it violated Article 19(1) of the Constitution and was not saved under Article 19(5). It was also urged that the order violated Article 19(1)(g) of the Constitution of India and was not saved under Article 19(6). Thus, the applicant in the altered situation gave up the reliefs he had sought in the application of 6th of September 1951, and prayed for an order for the restoration of his property of which he had been deprived without the authority of law.
3. The application has been opposed by the State of Rajasthan and their main contention is that their action is lawful and does not, in any way, contravene any of the articles contained in Part III of the Constitution of India. It is not denied that the State took control of the Power House on the 14th of September 1951. It is not necessary to put down the objections of the State in detail as they will appear in their proper place when we consider the arguments addressed before us.
4. The first contention on behalf of the applicant is that Ordinance No, 26 of 1949 had come to an end on the 9th of September 1951, and whatever authority the State might have had when that Ordinance was in force, it disappeared on the 9th of September, 1951. Their action, therefore, in taking possession of the Power House on the 14th of September 1951, was not authorised by any law and was clearly a breach of Article 31(1) of the Constitution which provides that no person shall be deprived of his property save by authority of law. The applicant further contends that since he has been deprived of his property without the authority of law, this court should order restoration of possession of property to him.
5. The first question, therefore, which arises is whether Ordinance No. 26 of 1949 came to an end on the 9th of September 1951. The contention on behalf of the State is that the Ordinance came to an end on 19th of September and that, therefore, the action taken on the 14th of September was justified by that Ordinance. In the alternative, it was submitted that even if the Ordinance came to an end on the 9th of September the action taken under Section 33 of the Ordinance at a time when it was in existence gave rise to certain liabilities and obligations under the provisions of the General Clauses Act and the State was clothed with the authority to assume control on the 14th of September 1951.
6. The Ordinance in question was promulgated by His Highness the Rajpramukh on the 9th of September 1949, and was published in the Rajasthan Gazette, Extraordinary on the 19th of September 1949. The applicant says that it came into force from the 9th of September which was the day on which it was promulgated while the State contends that it came into force on the 19th of September which was the day it was published in the Gazette. Section 1(3) of the Act says that it shall come into force at once. Section 68 provides that the provisions of the General Clauses Act 1897, of the Central Legislature shall mutatis mutandis apply to the interpretation of this Ordinance in the same manner as they apply to the interpretation of a Central Act of the Indian Legislature. In order, therefore, to determine the date on which this ordinance began, we have to lookto Section 5A, General Clauses Act, which is as follows :
'Where any Act made by the Governor General under Section 44 of the Government of India Act, 1935, is not expressed to come into operation on a particular day, it shall come into operation on the date on which it is enacted by the Governor General.'
7. There was no legislature in Rajasthan and before the Constitution came into force on the 26th of January 1950, laws used to be framed in the shape of Ordinances under Article X(3) of the Covenant by which the United State of Rajasthan was brought into existence. That article is as follows:
'Until a Constitution so framed comes into operation after receiving the assent of the Raj Pramukh, the legislative authority of the United State shall vest in the Raj Pramukh, who may make and promulgate Ordinance for the peace and good Government of the State or any part thereof, and any Ordinance so made shall have the like force of law as an Act passed by the Legislature of the United State.'
8. In Rajasthan, therefore the Rajpramukh used to make & promulgate Ordinances whenever it was necessary to frame a law. This action of the Rajpramukh was similar to the action of the Governor General passing an Act under Section 44 of the Government of India Act 1935. Therefore, Section 5A of the General Clauses Act 'mutatis mutandis' applies to the making and promulgation of an Ordinance by the Rajpramukh. That section says that where a day for coming into operation of an Act of the Governor General is not mentioned in the Act, it shall come into operation on the date it is enacted by the Governor General. In the present Ordinance, no particular day has been mentioned on which the Ordinance would come into force. On the other hand, it has been said that it shall come into force at once, which means that it shall come into force as soon as it is made and promulgated by the Rajpramukh. It is not decided that the Ordinance was promulgated by His Highness the Rajpramukh on the 9th of September, 1949. It must obviously have been made before the promulgation. Therefore, the date from which it comes into force is the day on which it was made and promulgated, namely, the 9th of September, 1949. Under Section 69(1), the Ordinance was to remain in force for a period of two years. Therefore; it must be held to have expired either on the 8th or the 9th of September, 1951. In the present case, the applicant admits that it expired on the 9th of September 1951 and that may be taken as the date of its expiry. The contention of the State, therefore, that it expired on the 19th of September, and that the assuming of control of the Power House at Pratapgarh on the 14th of September, was at a time when the Ordinance was in force, cannot be accepted.
9. We now turn to the alternative argument namely that even though the Ordinance had expired on the 9th of September, the order passed under Section 33(1) (a) of the Ordinance on the 29th of August was a good order and remained good under the General Clauses Act, and therefore, furnished authority for the action which was taken on the 14th of September. Under Section 33 (1) (a), the Government can pass an order if it is necessary to ensurethe carrying on of an undertaking for the supply of electricity, requiring the person in chargeto take or abstain from taking such action inrespect of the undertaking as may be specifiedin the order. Section 33(1) (b) provides thatif such owner or person has disobeyed or neglected to comply with, an order passed underClause (a), the Government can assume controlof such undertaking without notice to theowner or person in charge. The argument isthat the Government having passed an orderunder Section 33 (1) (a) and that order havingbeen disobeyed on the 14th of September inasmuch as the applicant threatened to close thePower House on that date, the Government wasauthorised under Section 33 (1) (b) to assume control of the undertaking in view of the provisionsof Section 6 (b) (c) and (e) of the GeneralClauses Act. These provisions are as follows:
'Where this Act, or any (Central Act) or Regulation made after the commencement ofthis Act, repeals any enactment hithertomade or hereafter to be made, then, unlessa different intention appears, the repeal shallnot-
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(e) affect any investigation, legal proceedings or repedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid and any such investigation, legal proceedings or remedy may be instituted, continued, or enforced, and any such penalty forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.'
10. The argument on behalf of the State is put in this manner. An order had been passed under Section 33(1) (a) requiring the applicant to carry on the Power House. The applicant therefore, incurred the liability or obligation of complying with that order coupled with the further liability of being divested of the control of the Power House, and the Government could thus assume control under Section 33 (1) (b). We are, however, unable to agree with this argument. When the Government passed an order under Section 33(1) (a), the applicant was certainly under an obligation to obey that order; but the obligation to obey that order continued only so long as the Ordinance was in force. It can hardly be contended that the obligation to obey an order under a particular law continues even after the law has come to an end. The obligation to obey an order is not something duly done or suffered, which will not be affected by the repeal. The obligation to obey the order arises from day to day and so long as the law is in force, that obligation is there. But when the law has come to an end, the obligation also, in our opinion, comes to an end.
It has, however, been urged that along with the obligation to obey the order, there was a further liability that if the order was disobeyed, the State would assume control of the undertaking under Section 33 (1) (b) and that liability had been incurred on the 29th of August 1951 when that order was passed, and further theliability had been incurred before the Ordinance came to an end, the repeal would not affect this liability and the Government was entitled to assume control to enforce this liability. We cannot, however, agree that as soon as the order under Section 33 (1) (a) was passed, the liability which is incurred on its disobedience arose. In the very nature of things, the liability which is incurred on the disobedience of a certain order arises when the order is actually disobeyed and not before. In this case, it is no one's case that the order of the 29th of August was disobeyed before the 9th of September 1951 when at the latest the Ordinance came to an end. Therefore, the liability which arises from disobedience did not arise till the Ordinance came to an end. As the liability had not arisen, Section 6(c) of the General Clauses Act has no application to this case. It would have been a different matter if disobedience had taken place, say on the 6th of September. In that case, the liability would have arisen and the Government could have assumed control of the undertaking even though that act might have been done after the 9th of September as Section 6(C) of the General Clauses Act would come to the help of the Government. We are, therefore, of opinion that the Ordinance having come to an end on the 9th of September and Section 6, General Clauses Act, not coming to the help of the State, the State could not assume control of the undertaking under cover of the provisions of Ordinance No. 26 of 1949.
11. We may cite an illustration in this connection to make what we have said absolutely clear. For example, under Section 34(2) of this very Ordinance, there is a provision that Government may direct by general or special order that any person or persons engaged in an essential service shall not depart out of such area or areas as may be specified in such order. This provision was obviously made to cope with strikes in essential services. Assume that there was an Electricity Supply Company in Jodhpur and it was declared an essential service and in order to meet the threat of strike, Government passed an order, say on some date in March 1951 to the effect that the employees of the Jodhpur Electricity Supply Company shall not leave the Municipal Limits of Jodhpur. Suppose that this order remained in force up to the 9th of September 1951 when the Ordinance came to an end. Suppose further that the order was obeyed by all the employees up to the 9th of September but on the 10th February 1952 half a dozen employees decided to give up working in the Jodhpur Electricity Supply Company and migrate to, say, Calcutta where they had secured better employment. Could it be said that the persons who thus left Jodhpur Municipality on the 10th of February 1952 would be liable to punishment under Section 34 (5) read with Section 34(4) for disobedience of the order of March 1951? The obvious answer is 'No'; for the order was obeyed so long as the law was in force and there was no question of disobedience after the law had come to an end. If that were not so and order passed under a temporary Act which was obeyed while the Act was in force, would continue long after the Act had ceased to remain on the Statute book with all liabilities and penalties provided for disobedience. We are, therefore, of opinion that as the disobedience never took place in this case while the Ordinance was in force the State hadno authority to assume control of the undertaking under Section 33 (1) (b) and their action cannot be justified under any provision of the Ordinance read with Section 6 of the General Clauses Act.
12. We now turn to the question whether the applicant has been deprived of his property by the State without the authority of law and, therefore, the action of the State is hit by Article 31(1) of the Constitution. The contention on behalf of the applicant is that the action of the State has been such as to amount to depriving him of his property and the Court should, therefore, give him relief under Article 31(1) as the deprivation has taken place without the authority of law, the justification under Ordinance No. XXVI of 1949 having failed. In order to understand the full import of the words 'shall be deprived of his property', a comparison may be made between the provisions of Article 31(1) and Article 31(2). A question arises whether Article 31(2) is merely complementary to Article 31(1) or whether the two deal with somewhat different matters and one is wider than the other. Learned Counsel for the State has argued that Article 31(1) deals with what is called the 'Police Power' of the State in the United States of America, while Article 31(2) with what is called the law of 'eminent domain' there. We do not think it necessary to enter into an elaborate discussion of what is meant 'Police Power' and what is meant by the law of 'eminent domain'. Our Constitution being elaborate and written, it is best to confine ourselves to the plain meaning of words used in it without importing unnecessarily expressions like 'Police Power' and 'eminent domain'. Looking, therefore, at the words of the two articles, it is clear that Article 31(1) is wider in its application than Article 31(2). The reason for this is that there might be deprivation of the property of a person without there being acquisition of it or taking possession of it for public purposes. This will be clear if we consider what is the meaning of acquisition or taking possession under Article 31(2) and then compare it with the meaning of deprivation used in Article 31(1). Acquisition is clearly acquiring of title to the property and includes taking possession of it by the State. On the other hand, taking possession obviously negatives the idea of acquiring title. But at the same time, the taking of possession under Article 31(2) for which compensation has to be paid must be for the purpose of beneficial enjoyment by the State or the person taking possession. Thus beneficial enjoyment whether it be merely taking possession or it be taking over title as well as possession is necessary before Article 31(2) is attracted to a case of acquisition or taking possession of property for public purposes. In the present case, the State has neither acquired title to the property nor taken possession of it with the object of beneficial enjoyment of the undertaking by itself and, therefore, the case is not covered by Article 31(2) and compensation would not in any case be required to be paid. But a person may still be deprived of his property, even though the State may not have acquired or taken possession of it within the meaning of Article 31(2). For example, the State may order demolition of a certain structure on the ground that it is dangerous to public safety because of its dilapidated condition. In such a case, there has been no acquisition by the Stateor taking possession of the property but still the person who owned the property has been deprived of it. That is why we said in the beginning that Article 31(1) was wide in scope than Article 31(2) and there may be deprivation of a person's property without there being acquisition or taking possession by the State. Many other examples can be thought of where an owner may be deprived of his property without the State acquiring it or taking possession of it. What Article 31(1) has provided, therefore, is that if a person is deprived of his property without the State acquiring it or taking possession of it by paying compensation under Article 31(2), there should be authority of law for such deprivation. Though, therefore, Article 31(2) has (no?) application to the facts of the present case and there has been no acquiring or taking possession of the property by the State, we have still to see whether the applicant has been deprived of his property without the authority of law.
13. Article 31(1) of the Constitution came up for consideration by the Supreme Court in 'Charanjit Lal Chowdhury v. The Union of India and Ors.', (AIR 1951 S. C. 41). Das J. considered the distinction between Article 31(1) and Article 31(2) and observed as follows at page 63:
'On the contrary, the language of Clause (1) of Article 31 is wider than that of Clause (2), for deprivation of property may well be brought about otherwise than acquiring or taking possession of it. I think Clause (1) enunciates the general principle that no person shall be deprived of his property except by authority of law, which, put in a positive form, implies that a person may be deprived of his property, provided he is so deprived by authority of law. No question of compensation arises under Clause (1). The effect of Clause (2) is that only certain kinds of deprivation of property, namely, those brought about by acquisition or taking possession of it will not be permissible under any law, unless such law provides for payment of compensation. If the deprivation of property is brought about by means other than acquisition or taking possession of it, no compensation is required, provided that such deprivation is by authority of law.'
14. If we may say so with respect, that conclusion is supported by Article 31(5). That article provides that Article 31(2) shall not apply to the provisions of any law which the State may hereafter make for the promotion of public health or the prevention of danger to life or property. For such purposes, a person might be deprived of his property even by destruction of it and would be entitled to no compensation. The case would be covered by Article 31(1) provided, the deprivation is made by authority of law. Provisions of Section 133 of the Code of Criminal Procedure also provide for destruction of property in certain circumstances by order of a Magistrate. In such a case, the owner is deprived of the property but is not entitled to any compensation and the action of the Magistrate would be protected under Article 31(1) for the deprivation is by authority of law.
15. It is however, contended on behalf of the State that the applicant has not even been deprived of his property and, therefore, even if there is no law in support of the action of the State Article 31(1) does not come to the support of the applicant. Reliance in this connection is placed on the -- 'Jupiter General Insurance Co. Ltd. v. Rajagopalan and Anr.', (AIR 1952 Punjab 9). In that case, the Controller gave notice under Section 52A of the Indian Insurance Act, 1938, to three insurance companies to the effect that he had reason to believe that the companies were acting in a manner likely to be prejudicial to the interests of holders of life insurance policies and informed them to appear on a certain date and show cause, and if satisfactory cause was not shown, he would make a report for the appointment of an administrator to manage the affairs of the companies. Thereupon the companies applied to the High Court that the relevant provisions of the law were inconsistent with the rights conferred by Articles 14-19(1)(f) and (g) and 31 of the Constitution. That case, however, dealt mainly with the effect of Article 31(2) and held that the law was valid even though, it did not provide for any compensation. It did not deal with Article 31(1), for, in that case, there was a law in existence in accordance with, which the Controller was acting. It is not, therefore, necessary to consider that case in further detail as we are here concerned with Article 31(1) and not with Article 31(2) with which that case was primarily concerned.
16. The meaning of deprivation was also considered in -- 'Dwarkadas Shrinivas v. The Sholapur Spinning and Weaving Company Ltd. and Ors.', (AIR 1951 Bom. 86). There also it was held that 'deprivation' was wider in its signification than 'acquisition' or 'taking possession.' It was further held that the distinction between Article 31(1) and Article 31(2) was that Article 31(1) applied to cases where the State had not to pay any compensation for, it was not acquiring or taking possession of the property while Article 31(2) applied to those cases where the State was acquiring or taking possession of the property and, therefore, the law must provide for compensation. The simple question, therefore, that falls for consideration is whether it can be said that the action of the State in the present case amounted to deprivation of the property of the applicant.
17. It has been urged on behalf of the State that the applicant has not been deprived of his property because he still remains the owner of it. Any profit that will arise from running the undertaking will go to the applicant. All that he has been deprived of is that the management for the time being, has been taken from him and the State has assumed control of this undertaking. In short, the argument is that as the applicant has not been deprived of the entire rights in the property, it cannot be said that he has been deprived of it. We may in this connection refer to the case of the -- 'Minister of State for the Army v. Dalziel', (68 C. L. R. 261). In that case, Dalziel was a tenant of a certain piece of land and used it as a car-parking station. That land was occupied by the army and Dalziel was dispossessed. Dalziel came to court claiming compensation as he alleged that fair compensation had not been paid. The law under which Dalziel claimed compensation was in these terms:
'Any such order relating to the acquisition of property shall provide just terms to the persons from whom the property was acquired.'
The question arose whether it could be said that the property had been acquired by the State. It was held that the taking of posses-sion of property held by a tenant for an indefinite period amounted to a acquisition of it. In our Constitution, Article 31(2) provides both for acquisition and taking possession and, to that extent, our Constitution has accepted the principle enunciated in this case. But observations of Rich J. in this case are pertinent in deciding when it can be said that a person has been deprived of his property, though the actual point in that case was different. At page 285, Rich J. observes as follows :
'Property, in relation to land, is a bundle of rights exercisable with respect to the land. The tenant of an unencumbered estate in fee simple in possession has the largest possible bundle. But there is nothing in the placitum to suggest that the legislature was intended to be at liberty to free itself from the restrictive provisions of the placitum by taking care to seize something short of the whole owned by the person whom it was expropriating...
It would, in my opinion, be wholly inconsistent with the language of the placitum to hold that, whilst preventing the legislature from authorizing the acquisition of a citizen's full title except upon just terms, it leaves it open to the legislature to seize possession and enjoy the full fruits of possession, indefinitely, on any terms it chooses, or upon no terms at all. In the case now before us, the Minister has seized and taken away from Dalziel everything that made his weekly tenancy worth having, and has left him with the empty husk of tenancy.'
It seems to us, therefore, that a person may be deprived of his property even though he may not have been deprived of all the rights that he has in that property. In this case, the applicant has certainly been deprived of the possession of his property. It is true that he still remains the owner of it; but he has no control over it. It may be that if, after working this undertaking, some profit ensues, it will go to the applicant. But what is to happen if instead of a profit, there is a loss? The State has not acquired or taken possession of the undertaking within the meaning of Article 31(2) and does not consider itself responsible for the loss, if any, incurred in working the undertaking. The result, therefore, of the State assuming control is that the undertaking is going to be worked in the future by the State and the applicant will have no voice in the management and if any loss is incurred, the State will hold the applicant responsible for it. Thus the applicant has been deprived of effective possession as well as right of management and he is attempted to be saddled with the liability that if any loss is incurred in running the undertaking, he will make it good. It seems to us that in the words of Rich J. in Dalziel's case, all that is left to the applicant is 'the empty husk' of ownership. In these circumstances, it is impossible to come to any other conclusion except this that the applicant has been deprived of his property within the meaning of Article 31(1). If there had been any law in support of this deprivation, the applicant might not have had a remedy. But when Ordinance No. XXVI of 1949 expired as mentioned earlier, the deprivation in our opinion, was without the authority of law and the applicant is entitled to protection of his fundamental right to hold property under Article 19(10). That fundamentalright could not be interfered with unless there is authority of law to support such interference.
18. Our attention has been drawn to the case of -- 'Rao Sahib Manoharsingh v. The State of Rajasthan', (1952 R. L. W. 81) to which both of us were a party. In that case, we held that the mere taking over of the collection of rents did not amount to taking possession within the meaning of Article 31(2) of the Constitution. It is urged that in this case also the State has merely taken over the management of the undertaking and, therefore, that case applies. That was, however, not a case under Article 31(1) for, even if there was deprivation there was a law in support of it. We had no occasion to consider Article 31(1) in that case and were concerned only with Article 31(2). We pointed out that mere taking over of the collection of rents did not amount to taking possession within the meaning of Article 31(2). We further pointed out that as the State was merely doing what the applicant would have employed agents to do, the State was something like a statutory agent and there was no taking over of possession by the State within the meaning of Article 31(2) because the State did not have any beneficial enjoyment of rents by taking over their collection. In the present case, we have held that Article 31(2) has no application as the taking over of possession by the State was not for beneficial enjoyment. That case, therefore, has no application to the facts of the present case. On a careful consideration, therefore, of the facts as they appear about the assumption of control of this undertaking by the State, we cannot but come to the conclusion that for all practical purposes, the applicant has been deprived of his property though he remains the owner of it. All effective possession of the movable and immovable property of the Power House is in the State and the 'empty husk' of ownership remains with the applicant. The test, therefore, in cases of deprivation of property under Article 31(1) would be the same as in cases of acquisition or dispossession under Article 31(2) and that test has been, if we may say so with respect, well put in the following words of Mukherjea J. in Cha-ranjit Lal Chowdhury's case quoted above, at page 55:
'The test would certainly be as to whether the owner has been dispossessed substantially from the rights held by him or the loss is only with regard to some minor ingredients of the proprietary right.'
In the present case, we are of opinion that the applicant has been substantially dispossessed from the rights held by him. We are, therefore, of opinion that the applicant has been deprived of his property within the meaning of Article 31(1) of the Constitution and this deprivation has taken place without the authority of law. Under these circumstances, the applicant is entitled to get back his property as the action of the State in assuming control of the undertaking is without the authority of law.
19. We, therefore, allow the application and direct that the Power House at Pratapgarh and all property appurtenant thereto will be restored to the applicant. The applicant will get his costs from the State which we assess at Rs. 50/- per day of actual hearing.