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Dr. Svetoslav Roerich, a Russian born, was an internationally acclaimed painter, artist and recipient of many national and international awards including Padma Bhushan from the President of India in the year 1961. Smt. Devika Rani Roerich, grand niece of Rabindranath Tagore had made valuable contributions and outstanding services to the Indian Motion Pictures and Film Industry, was known to be the “First Lady of the Indian Screen”. She was awarded Padmashri by the President of India in the year 1958 and was the recipient of the first Dada Saheb Phalke Award and the Soviet Land Nehru Award in the year 1989.

Devika Rani

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                                                              1

              IN THE SUPREME COURT OF INDIA
              CIVIL APPELLATE JURISDICTION

              CIVIL APPEAL NO.6520 OF 2003
                             WITH
           CIVIL APPEAL NO.6521-6537 OF 2003
                             AND
              CIVIL APPEAL NO.6538 OF 2003

K.T. Plantation Pvt. Ltd. & Anr.  ... Appellants

                              Vs

State of Karnataka                    ...Respondent

                      J U D G M E N T

K.S. RADHAKRISHNAN, J.

       The   constitutional   validity   of   Roerich   and 

Devika   Rani   Roerich   Estate   (Acquisition   &   Transfer) 

Act,   1996   (in   short   the   "Acquisition   Act"),   the 

legal validity of Section 110 of the Karnataka Land 

Reforms Act, 1961 (in short "Land Reforms Act"), the 

Notification No. RD 217 LRA 93 dated 8th  March, 1994 

issued   by   the   State   Government   thereunder   and   the 

scope   and   content   of   Article   300A   of   the 

Constitution of India, are the issues that have come 

up for consideration in these civil appeals.

2.     We   propose   to   deal   with   the   above   issues   in 

three   parts.     In   Part-I,   we   will   deal   with   the 

validity of Section 110 of the Land Reforms Act and 

                                                               2

the validity of the notification dated 8.3.1994 and 

in   Part-II,   we   will   deal   with   the   constitutional 

validity of the Acquisition Act and in Part-III, we 

will   deal   with   the   claim   for   enhanced   compensation 

and the scope of Article 300A of the Constitution.

PREFACE

3.      Dr. Svetoslav Roerich, a Russian born, was an 

internationally   acclaimed   painter,   artist   and 

recipient   of   many   national   and   international   awards 

including Padma Bhushan from the President of India 

in   the   year   1961.     Smt.   Devika   Rani   Roerich,   grand 

niece   of   Rabindranath   Tagore   had   made   valuable 

contributions and outstanding services to the Indian 

Motion   Pictures   and   Film   Industry,   was   known   to   be 

the   "First   Lady   of   the   Indian   Screen".     She   was 

awarded   Padmashri   by   the   President   of   India   in   the 

year   1958   and   was   the   recipient   of   the   first   Dada 

Saheb   Phalke   Award   and   the   Soviet   Land   Nehru   Award 

in the year 1989.

4.       Dr. Roerich and Mrs. Devika Rani Roerich had 

owned   an   Estate   called   Tatgunni   Estate   covering 

470.19 acres at B.M. Kaval Village of Kengeri Hobli 

                                                              3

and   Manvarthe   Kaval   Village   of   Uttarhalli   Hobli, 

Bangalore   South   Taluk,   out   of   which   100   acres   were 

granted to them by the State Government in the year 

1954   for   Linaloe   cultivation   vide   G.O.   dated 

16.3.1954   read   with   Decree   dated   19.4.1954.     When 

the   Land   Reforms   Act   came   into   force,   they   filed 

declarations under Section 66 of the Act before the 

Land Tribunal, Bangalore South Taluk-II stating that 

they had no surplus lands to surrender to the State 

since the entire area held by them had been used for 

the cultivation of Linaloe which was exempted under 

Section   107(1)(vi)   of   the   Land   Reforms   Act.     The 

Land   Tribunal,   Bangalore   vide   order   dated   15.3.82 

dropped   the   proceedings   instituted   under   the   Act 

against   them   holding   that   the   land   used   for 

cultivation   of   Linaloe   did   not   attract   the 

provisions of the Land Reforms Act.  

5.      Dr.   Roerich,   it   was   stated,   had   sold   141.25 

acres   (which   included   100   acres   granted   by   the 

Government   for   Linaloe   cultivation)   to   M/s   K.T. 

Plantations   Pvt.   Ltd.   (the   first   appellant   herein, 

                                                              4

in short `the Company') by way of a registered Sale 

Deed   dated   23.3.91   for   a   sale   consideration   of 

Rs.56,65,000/-.  It was stated that Mrs. Devika Rani 

Roerich   had   also   sold   an   extent   of   223   acres   30 

guntas   to   the   Company   on   16.2.1992   for   a   sale 

consideration   of   Rs.89,25,000/-   by   way   of   an 

unregistered   sale   deed,   a   transaction   disputed   by 

Mrs. Devika Rani. The Company, however, preferred a 

suit   OS   122/92   for   a   declaration   of   title   and 

injunction   in   respect   of   that   land   before   the 

District and Civil Judge, Bangalore which is pending 

consideration.

6.      The   Company   sought   registration   of   the   sale 

deed   dated   16.02.92   before   the   Sub   Registrar, 

Kingeri, who refused to register the sale deed.  The 

Company then preferred an appeal before the District 

Registrar, but when the appeal was about to be taken 

up for hearing, one Mary Joyce Poonacha who claimed 

rights   over   the   property   on   the   strength   of   an 

alleged  will  preferred   a   Writ   Petition   No.2267   of 

1993   before   the   Karnataka   High   Court   and   a   learned 

Single   Judge   of   the   High   Court   dismissed   the   writ 

                                                                5

petition.     On   appeal,   the   Division   Bench   confirmed 

the   order,   against   which   she   had   approached   this 

Court   vide   C.A.No.3094   of   1995   and   this   Court  vide 

its   judgment   dated   18th  April,   1995   directed   the 

District   Registrar   not   to   proceed   with   the   matter 

till   the   suit   is   disposed   of   by   the   Civil   Court. 

The judgment is reported in (1995) Suppl. 2 SCC 459.

7.      Dr. Roerich and Mrs. Devika Rani had no issue 

and   due   to   old   age   and   other   ailments   it   was 

reported   that   they   were   staying   at   Hotel   Ashok, 

Bangalore for a couple of years before their death. 

It   was   alleged   that   some   of   the   persons   who   were 

associated   with   the   couple,   had   an   eye   on   their 

properties,   including   the   land   used   for   linaloe 

cultivation,         valuable         paintings,         jewellery, 

artefacts   etc.,   and   began   to   create   documents   to 

grab those properties.

8.      The Chief Secretary of the State of Karnataka 

noticing   the   above   facts   and   circumstances   convened 

a meeting on 1.4.92 in  the presence of the Director 

of Archaeology to take effective and proper steps to 

preserve   the   paintings,   artefacts   and   other 

                                                               6

valuables.     For   that   purpose,   they   met   Smt.   Devika 

Rani   and   Dr.   Roerich   on   03.04.92   and   a   letter   was 

handed   over   to   Dr.   Roerich   on   behalf   of   the   State 

Government   expressing   the   Government's   willingness 

to purchase the paintings and other valuables so as 

to  set up  a Roerich  Gallery.    The State  Cabinet in 

its   meeting   held   on   09.04.92   also   discussed   about 

the   desirability   of   acquiring   the   landed   properties 

of Roerichs and also for setting up an Art Gallery-

cum-Museum,   in   public   interest.   Following   that 

meeting, the Roerich and Devika Rani Roerich Estate 

(Acquisition   and   Transfer)   Ordinance,   1992   was 

drafted, but could not be issued.

9.      The   Deputy   Commissioner,   Bangalore   Rural 

District   had   reported   on   26.6.1993   that   though 

Roerichs   had   owned   470.19   acres   of   land   including 

the land used for Linaloe cultivation they had filed 

declarations   only   to   the   extent   of   429.26   acres. 

Out  of the  extent of  470.19 acres  of land  owned by 

them,   they   had   raised   Linaloe   cultivation   to   the 

extent   of   356.15   acres   and   the   remaining   extent   of 

114.04   acres   was   agricultural   land.     As   per   the 

                                                                7

ceiling provisions of the Land Reforms Act they were 

entitled   to   hold   an   extent   of   54   acres   of 

agricultural   land.     As   such,   the   excess   of   60.04 

acres ought to have been surrendered by them to the 

Government.     The   view   of   the   Law   Department   was 

sought for in that respect and the Law Department on 

18.11.93   stated   that   the   earlier   order   dated 

15.03.82   of   the   Land   Tribunal,   Bangalore   be   re-

opened   and   the   action   under   Section   67(1)   be 

initiated   for   resumption   of   the   excess   land.     The 

Deputy   Commissioner   was   requested   to   issue   suitable 

instructions to the Tahsildar, Bangalore South Taluk 

to   place   the   matter   before   the   Land   Tribunal,   for 

review   of   the   earlier   order   dated   15.03.82   by 

invoking the provisions of Section 122A of the Land 

Reforms Act.

10.     The   Deputy   Commissioner   reported   that   Dr. 

Roerich   had   sold   an   extent   of   137.33   acres   of   land 

comprising of survey nos. 124, 126 of B.M. Kaval and 

survey No. 12 of Manavarth Kaval of Bangalore South 

Taluk   on   23.3.1991   to   M/s   K.T.   Plantations   Private 

Limited   and   it   was   reported   that   the   request   for 

                                                                8

mutation   in   respect   of   those   lands   was   declined   by 

the   local   officers   and   the   lands   stood   in   the   name 

of late Dr. Roerich in the Record of Rights.

11.     The   Commissioner   and   Secretary   to   the 

Government,   Revenue   Department   taking   note   of   the 

above   mentioned   facts   sought   the   legal   opinion   of 

the   Department   of   Law   and   Parliamentary   Affairs   as 

to whether valuable lands held by the late Roerichs 

could   be   resumed   by   the   State   before   lands   changed 

hands,   by   withdrawing   the   exemption   given   to   the 

lands used for Linaloe cultivation.   The Department 

of   Law   and   Parliamentary   Affairs   in   their   note 

No.108:/L/11/94   dated   1.3.1994   opined   that   the 

exemption   given   under   Section   107   of   the   Land 

Reforms Act, 1961 can be withdrawn by the Government 

by issuing a notification as per Section 110 of the 

Land Reforms Act.  Consequently the Commissioner and 

Secretary   to   the   government   proposed   to   issue   a 

notification   to   that   effect   for   which   approval   of 

the   Cabinet   was   sought   for.     The   Cabinet   accorded 

sanction   in   its   meeting   held   on   04.03.1994   and   the 

Government issued a notification dated 08.03.1994 in 

                                                                9

exercise   of   powers   conferred   by   Section   110   of   the 

Land   Reforms   Act,   withdrawing   the   exemption   granted 

for the lands used for cultivation of Linaloe under 

clause   (vi)   of   Sub-section   1   of   Section   107   of   the 

Act.     Notification   was   published   in   the   Government 

Gazette on 11.03.1994.

12.     The   Assistant   Commissioner,   Bangalore   sub-

division   later   issued   a   notice   no.LRF:CR   17:93-94 

dated   28.03.94     to   the   company   to   show   cause   why 

137.33   acres   of   land   be   not   forfeited   to   the 

Government,   since   it   had   purchased   the   above 

mentioned   lands   in   violation   of   Section   80   and   107 

of   the   Land   Reforms   (Amendment)   Act,   1973.   An 

enquiry under Section 83 of the Land Reforms Act was 

ordered for violation of the provisions of the Act. 

The   Company,   aggrieved   by   the   above   mentioned 

notice,   filed   Writ   Petition   No.12806/94   before   the 

High   Court   of   Karnataka,   which   was   allowed   to   be 

withdrawn   giving   liberty   to   the   petitioner   to   take 

recourse   to   the   remedies   under   law.     Due   to   the 

status   quo  order   passed,   by   this   Court   in   these 

appeals   the   proceedings   pending   before   the   Asst. 

                                                              10

Commissioner,   Bangalore   following   the   show-cause 

notice dated 28.03.1994 was kept in abeyance.

13.     Mary   Joyce   Poonacha,   the   appellant   in   Civil 

Appeal No. 6538 of 2003 had, in the meanwhile, filed 

W.P.   No.   11149   of   1994   before   the   Karnataka   High 

Court   claiming   rights   over   some   of   the   articles 

belonging   to   Roerichs'   couple   on   the   strength   of   a 

will   dated   4.3.1994.       The   writ   petition   was 

dismissed   by   the   High   Court   holding   that   the 

articles   claimed   by   the   appellant   stood   vested   in 

the   State   in   view   of   the   Acquisition   Act.   Against 

that   judgment,   Mary   Joyce   Poonacha   has   approached 

this Court and filed Civil Appeal No. 6538 of 2003. 

14.     The   Company,   through   its   Managing   Director, 

filed   Writ   Petition   No.   32560   of   1996   before   the 

Karnataka   High   Court   challenging   the   constitutional 

validity of the Acquisition Act, Section 110 of the 

Land   Reforms   Act,   the   notification   dated   08.03.1994 

issued   thereunder   and   also   sought   other 

consequential   reliefs.     The   writ   petition   was 

dismissed   by   the   High   Court   upholding   the   validity 

of the Acquisition Act as well as Section 110 of the 

                                                                11

Land   Reforms   Act   and   the   notification   issued 

thereunder   except   in   relation   to   the   inclusion   of 

certain   members   in   the   Board   of   Directors 

constituted under the Acquisition Act.  Aggrieved by 

the   same   the   Company   has   come   up   before   this   Court 

in Civil Appeal No.6520 of 2003.  

15.      Mary   Joyce   Poonacha   and   others   had   also 

challenged   the   constitutional   validity   of   the 

Acquisition Act by filing Writ Petition Nos. 32630-

32646 of 1996 before the Karnataka High Court, which 

were also dismissed in view of the judgment in Writ 

Petition No. 32560 of 1996.   Aggrieved by the same, 

they   have   preferred   Civil   Appeal   Nos.   6521-6537   of 

2003.  

16.      When the Civil Appeals came up before a bench 

of   this   Court   on   28.07.04   and   this   Court   passed   an 

order framing the following substantive questions of 

law:-

         1.     Whether   Section   110   of   the
         Karnataka   Land   Reforms   Act,   1961,   as
         amended   by   the   Karnataka   Land   Reforms
         amendment   Act,   1973,   (Act   1   of   1974),
         which   came   into   effect   from   01.03.1974,
         read with Section 79 B of the said Act,
         introduced   by   amending   Act   1   of   1974,
         violates   the   basic   structure   of   the 

                                                                              12

Constitution,   in   so   far   as   it   confers
power   on   the   Executive   Government,   a
delegatee   of   the   Legislature,   of
withdrawal   of   exemption   of   Linaloe
plantation,   without   hearing   and   without
reasons?

2.      Whether   the   Roerich   and   Devika
Rani   Roerich   (Acquisition   and   Transfer)
Act,   1996,   (the   Acquisition   Act),   is
protected   by   Article   31C   of   the
Constitution?

3.      Whether the true interpretation of
Article   300A   of   the   Constitution,   the
said   Act   is   violative   of   the   said
Article   in   so   far   as   no   specific
compensation                 prescribed                   for         the
acquisition   of   468   acres   of   Linaloe
plantation,   and,   after   deduction   of
liabilities   and   payment   of   compensation
for the artefacts, no balance may and/or
is   likely   to   exist   for   payment   of   such
compensation,   as   a   result   of   which,
whether   the   Act   really   is   expropriatory
in nature?

4.      Whether   on   true   interpretation   of
Article   300A   of   the   Constitution,   the
said Act is violative of Article 300A as
the   said   Article   is   not,   by   itself,   a
source   of   Legislative   power,   but   such
power   of   the   State   Legislature   being
traceable   only   to   Entry   42   of   List   III
of   Schedule   VII   to   the   Constitution
viz.,   "Acquisition   and   Requisition   of
Property",               which          topic               excludes
expropriation   and   confiscation   of
property?

5.      If              Article         300A               of         the
Constitution   is   construed   as   providing
for   deprivation   of   property   without   any
compensation   at   all,   or   illusory 

                                                                  13

          compensation,   and   hence   providing   for
          expropriation   and   confiscation   of
          property, whether the said Article would
          violate the rule of law and would be an
          arbitrary   and   unconscionable   violation
          of   Article   14   of   the   Constitution,   thus
          violating   the   basic   structure   of   the
          Constitution?

Part-I

          We will first examine the validity of Section 

110   of   the   Land   Reforms   Act   and   the   notification 

dated 08.03.94, issued thereunder.

17.       Mr.   T.R.   Andhyarujina,   Senior   Advocate 

appearing   for   the   Company   submitted   that   it   had 

purchased   the   lands   from   Roerich   couple   when   those 

lands stood exempted from the provisions of the Land 

Reforms   Act   by   virtue   of   Section   107(1)(vi)   of   the 

Act.         Learned   senior   counsel   submitted   that   the 

State   Government   cannot,   in   exercise   of   its   powers 

under   Section   110   of   the   Act,   issue   notification 

dated 08.03.94 to withdraw the exemption granted by 

the   Legislature   which   is   essentially   a   legislative 

policy.         Learned   senior   counsel   also   submitted 

that Section 110 gave unfettered and unguided power 

to the Executive to take away the exemption granted 

                                                                14

by   the   Legislature   and   hence   that   Section   is   void 

for   excessive   delegation   of   legislative   powers   on 

the State Government.  In support of his contention, 

reliance   was   placed   on   the   judgments   of   this   court 

In  Re: The  Delhi Laws  Act, 1912,  the Ajmer-Merwara  

(Extension of Laws) Act, 1947 and the Part C States 

(Laws)   Act,   1950  (1951)   2   SCR   747,  Rajnarain  Singh 

v.  The   Chairman,   Patna   Admnistration   Committee,  

Patna&   Another,    AIR   1954   SC   569,  Vasantlal 

Maganbhai Sanjanwala v. State of Bombay and Ors. AIR 

1961 SC 4,  Hamdard Dawakhana (Wakf) Lal Kuan, Delhi  

&   Another   v.   Union   of   India   &   Others  (1960)   2   SCR 

671.  

18.       Learned senior counsel also submitted that the 

State   Government   cannot   take   away   retrospectively 

the vested rights of persons to hold lands used for 

Linaloe cultivation from 01.03.1974 onwards, without 

assigning   any   reasons.       Further,   it   was   also 

submitted   that   the   exemption   under   Section 

107(1)(vi)   was   granted   with   respect   to   the   lands 

used for the cultivation of Linaloe, and not for any 

specific   individual,   and   there   is   no   bar   in 

                                                              15

alienating the land to third parties.  In support of 

the   above   contention,   learned   counsel   placed 

reliance   on   the   decisions   of   this   Court   in  Bakul  

Cashew   Co.   and   Ors.     v.  Sales   Tax   Officer,   Quilon  

and   Anr.  (1986)   2   SCC   365,  Income   Tax   Officer,  

Alleppy v.  M.C. Ponnoose and Ors. (1969) 2 SCC 351, 

Regional   Transport   Officer,   Chittoor   and   Ors.     v. 

Associated Transport Madras (P) Ltd. and Ors. (1980) 

4 SCC 597, Cannanore Spinning and Weaving Mills Ltd. 

v.  Collector   of   Customs   and   Central   Excise,   Cochin  

and   Ors.   (1969)   3   SCC   112,  Hukam   Chand   etc.    v. 

Union of India (UOI) and Ors. (1972) 2 SCC 601.

19.     Shri Andhyarujina also submitted that the show 

cause   notice   dated   28.03.1994   was  ex   facie  illegal 

and   that   the   prohibition   of   transfer   of   land   under 

Section 80 of the Act cannot act retrospectively in 

respect   of   lands   already   stood   exempted   under 

Section 107(1)(vi) of the Act.  

20.     Learned   senior   counsel   also   refuted   the 

contention   of   the   State   that,   under   Section   107(2) 

of the Land Reforms Act, there can be only 10 units 

of land used for Linaloe cultivation exempted under 

                                                               16

Section   107(1)(vii)   of   the   Act.       Learned   senior 

counsel submitted that it would be anomalous for the 

Legislature,   by   amending   the   Act,   on   the   one   hand, 

to exempt the lands for cultivation of Linaloe from 

operation of the Land Reforms Act, without any limit 

of   holding   and,   at   the   same   time,   deprive   the 

existing   cultivators   of   Linaloe,   except   to   the 

extent   of   10   units   on   1.3.74.     Learned   counsel 

submitted   that   Section   107(1)(vi)   does   not   put   a 

limit of 10 units of Linaloe lands.  

21.     Learned senior counsel also submitted that the 

State Government has also not followed the procedure 

laid   down   in   Section   140   of   the   Land   Reforms   Act 

and,   in   any   view,   the   mere   laying   of   the 

notification   before   the   State   Legislature   would   not 

cure   the   infirmity   of   excessive   delegation.   Learned 

counsel also submitted that though the Land Reforms 

Act   was   placed   in   the   9th  Schedule   which   saves   its 

provisions from the challenge of Articles 14, 19 and 

31,   a   challenge   to   a   provision   of   the   Act   for 

excessive   delegation   of   legislative   power   is   still 

                                                              17

available   and   the   Land   Reforms   Act   cannot   be 

protected   by   Article   31B.     Shri   Andhyarujina   also 

submitted   that   the   State   Govt.   was   led   to   deprive 

the appellants of their property even by-passing the 

Act   when   it   resorted   to   withdrawing   the   exemption 

available   under   Section   107(1)(vi)   of   the   Land 

Reforms   Act,   by   issuing   its   notification   dated 

08.03.1994   by   withdrawing   the   exemption   and   making 

the Company ineligible to hold the agricultural land 

under Section 79B of the Land Reforms Act which also 

provided inadequate compensation. 

22.     Mr. Basavaprabhu S. Patil, senior counsel for 

the   State   of   Karnataka   submitted   that   the   validity 

of   Section   110   of   the   Act   was   never   questioned 

before   the   High   Court   on   the   ground   of   excessive 

delegation   and   hence,   the   appellants   are   precluded 

from   raising   that   contention   before   this   Court. 

Learned   senior   counsel   submitted   that   the   validity 

of   Section   110   was   challenged   on   the   ground   of 

violation   of   the   fundamental   rights   which   was 

rightly   negatived   by   the   High   Court   since   the   Land 

Reforms   Act   was   placed   in   the   IXth   Schedule. 

                                                              18

Learned senior counsel also submitted that the Land 

Reforms   Amendment   Act   (Act   1   of   1974)   was   also 

placed in the IXth Schedule   and, hence immune from 

attack on the ground of violation of Articles 14 or 

19 of the Constitution and, hence, the notification 

dated 8.03.1994 issued under Section 110 of the Act 

is   also   immune   from   challenge.   Learned   senior 

counsel   submitted   that   the   constitutional   validity 

of the amended Act was also upheld by this Court in 

H.S.   Srinivasa   Raghavachar  and   Ors.  v.  State   of 

Karnataka and Ors. (1987) 2 SCC 692.  

23.     Learned senior counsel also submitted that the 

appellants   have   no  locus   standi  to   maintain   these 

writ   petitions   since   they   have   not   perfected   their 

title   over   the   properties   in   question.     Further, 

Mrs.   Devika   Rani   Roerich   had   also   disputed   the 

execution of the sale deed dated 16.02.92 and a suit 

disputing   title   is   pending   consideration   before   the 

Civil Court.   Learned senior counsel also submitted 

that the company had illegally acquired 141 acres 25 

guntas   of   land   in   excess   of   the   ceiling   prescribed 

under Section 107(2) of the Land Reforms Act and the 

                                                                19

Act mandates that no person shall, which includes a 

Company also, after the date of commencement of the 

Land   Reforms   Act,   i.e.,   01.03.74,   acquire   land   in 

any   manner   for   cultivation   of   Linaloe   to   an   extent 

which together with the land cultivated by Linaloe, 

if   any,   already   held   by   him   exceed   10   units 

notwithstanding   anything   contained   in   sub-section 

(1) of Section 107. 

24.     Learned senior counsel further submitted that 

the provisions of Sections 66 to 76 also shall apply 

mutatis   mutandis,   in   respect   of   every   acquisition 

contrary   to   Section   107(2).   Learned   senior   counsel 

also   submitted   that   in   any   view   Section   110   of   the 

Land   Reforms   Act   does   not   suffer   from   the   vice   of 

excessive   delegation   of   legislative   powers.   Learned 

senior   counsel   submitted   that   Section   110   of   the 

Land   Reforms   Act   is   guided   by   the   policy   laid   down 

by   the   state   legislature   which   is   discernible   from 

the   scheme   of   the   Land   Reforms   Act,   its   objective, 

provisions in Chapter-VIII, history of the amendment 

substituting   Section   107   (1)(vi)   etc.         Learned 

counsel   also   submitted   that   exemption   under   Section 

                                                                20

107(1)(vi)   was   granted   to   Roerichs'   for   cultivation 

of   Linaloe,   while   the   Company   is   statutorily 

disentitled   to   hold   the   land   and,   hence,   the   claim 

for   exemption   from   the   provisions   of   Land   Reforms 

Act is opposed to the policy of the Act.       Further 

nobody   can   claim   the   exemption   from   the   provisions 

of the Land Reforms Act, as a matter of right, much 

less   a   Company   which   is   statutorily   barred   from 

holding excess agricultural land.     By withdrawing 

the exemption the State Govt. was only giving effect 

to the underlying legislative policy.   

25.     Learned senior counsel submitted, but for the 

exemption granted, Roerichs' would not have held the 

land   used   for   the   cultivation   of   Linaloe. 

Exemption was granted to Roerichs subject to Section 

110   of   the   Land   Reforms   Act   and   it   was   with   that 

statutory   limitation   the   Company   had   purchased   the 

land.     Learned   senior   counsel   cited   the   following 

judgments of this Court in  Municipal Corporation of  

Delhi  v.  Birla   Cotton,   Spinning   and   Weaving   Mills,  

Delhi   and   Another  AIR   1968   SC   1232;  Delhi   Cloth   & 

General   Mills   Ltd.   v.   Union   of   India   &   Others. 

                                                                21

(1983) 4 SCC 166; Premium Granites and Anr. v. State  

of Tamilnadu and Ors. (1994) 2 SCC 691; Registrar of 

Co-operative   Societies,   Trivandrum   and   Anr.    v. 

Kunjabmu and Ors. (1980) 1 SCC 340.

26.     Learned   senior   counsel   also   submitted   that 

there   is   no   provision   for   providing   hearing   or 

recording   reasons   before   issuing   the   notification 

dated   08.03.1994,   while   exercising   powers   under 

Section   110   of   the   Act.       Learned   senior   counsel 

submitted that exercise of powers under Section 110 

of   the   Act   is   in   the   nature   of   subordinate 

legislation   and   no   opportunity   of   hearing   or 

recording   of   reasons   are   warranted.   In   support   of 

his   contention   learned   counsel   placed   reliance   on 

the   decisions   of   this   Court   in  Shri  Sitaram   Sugar  

Co. Ltd. and Another  v.   Union of India and Others 

(1990)   3   SCC   223;    Union   of   India    and   Another  v. 

Cynamide   India   Ltd.  and   Another   Etc.   (1987)   2   SCC 

720;  H.S.S.K. Niyami & Another v. Union of India &  

Another  (1990)   4   SCC   516;  Laxmi   Khandsari   and   Ors. 

v.  State   of   U.P.  and   Ors.  (1981)   2   SCC   600;  J.   K.  

                                                              22

Industries   &   Another   v.   Union   of   India   &   Others  

(2007) 13 SCC 673. 

27.     Learned   senior   counsel   also   submitted   that 

requirement   of   placing   the   notification   dated 

08.03.94   before   the   State   Assembly   is   not   a 

mandatory   requirement   once   the   State   Government 

publishes   the   notification   in   the   official   gazette. 

Reference   was   made   to   the   judgment   in  Jan   Mohammad  

Noor   Mohammad   Bagban  v.  State   of   Gujarat   and   Anr., 

AIR 1966 SC 385.     Learned senior counsel submitted 

that in any view of the matter, as per the order of 

this   Court   dated   24.2.2011   the   State   Govt.   have 

already   taken   steps   for   placing   the   notification 

before   both   the   Houses   of   the   State   Legislature. 

Consequently, the defect, if any, of non-laying the 

notification, has been cured.

28.     The   Land   Reforms   Act   was   enacted   by   the 

Karnataka   State   Legislature   to   have   a   uniform   law 

relating to land reforms  in the State of Karnataka, 

relating   to   agrarian   relations,   conferment   of 

ownership on tenants, ceiling on land holdings etc. 

Chapter II of the Act deals with general provisions 

                                                              23

relating   to   tenancies,   Chapter   III   deals   with 

conferment of ownership on tenants.  Ceiling on land 

holdings is dealt with in Chapters IV and Chapter V 

deals   with   restrictions   on   holding   or   transfer   of 

agricultural   lands.     Chapter   VIII   of   the   Act   deals 

with   exemptions   and   Chapter   XI   deals   with   the 

miscellaneous provisions.

29.     Appellants   in   these   appeals   have   challenged 

the validity of Section 110 of the Act primarily on 

the   ground   of   excessive   delegation   of   legislative 

powers   on   the   State   Government.     To   examine   that 

contention   it   is   necessary   to   refer   to   certain 

provisions contained in various Chapters referred to 

above,   the   scheme   of   the   Act,   its   object   and 

purpose,   legislative   policy   underlying   in   the 

provisions of the statute etc.

30.     Chapter   V   of   the   Act,   as   we   have   already 

indicated,   imposes   certain   restrictions   on   holding 

or   transfer   of   agricultural   lands.     Section   79B(1) 

of the Act prohibits holding of agricultural land by 

certain   persons   which   says   that   with   effect   on   and 

from   the   date   of   commencement   of   the   Amendment   Act 

                                                              24

(Act   1/74)   w.e.f.   1.3.1974,   no   person   other   than   a 

person cultivating land personally shall be entitled 

to hold land; and that it shall not be lawful for, a 

company inter alia to hold `any land'.  Further sub-

section   (2)   of   Section   79B   states   that   the   company 

which holds lands on the date of the commencement of 

the   Amendment   Act   and   which   is   disentitled   to   hold 

lands   under   sub-section   (1),   shall   within   ninety 

days   from   the   said   date   furnish   to   the   Tahsildar 

within   whose   jurisdiction   the   greater   part   of   such 

land   is   situated   a   declaration   containing   the 

particulars of such land and such other particulars 

as   may   be   prescribed;   and   which   acquires   such   land 

after   the   said   date   shall   also   furnish   a   similar 

declaration   within   the   prescribed   period.     Sub-

section (3) of Section 79B states that the Tahsildar 

shall,   on   receipt   of   the   declaration   under   sub-

section   (2)   and   after   such   enquiry   as   may   be 

prescribed,   send   a   statement   containing   the 

prescribed particulars relating to such land to the 

Deputy   Commissioner   who   shall,   by   notification, 

declare   that   such   land   shall   vest   in   the   State 

                                                                 25

Government   free   from   all   encumbrances   and   take 

possession   thereof   in   the   prescribed   manner.     Sub-

section (4) of Section 79B states that in respect of 

the land vesting in the State Government under that 

section   an   amount   as   specified   in   Section   72   shall 

be paid.  Explanation to Section 79B states that for 

the   purpose   of   that   section   it   shall   be   presumed 

that   a   land   is   held   by   an   institution,   trust, 

company, association or body where it is held by an 

individual on its behalf.   Section 80 bars transfer 

of   any   land   to   non-agriculturists,   which   says   that 

no   sale,   gift   or   exchange   or   lease   of   any   land   or 

interest therein etc. shall be lawful in favour of a 

person   who   is   disentitled   under   Section   79A   or   79B 

to acquire or hold any land.  

31.     The   first   appellant   being   a   company   was, 

therefore,   prohibited   from   holding   any   agricultural 

land   after   the   commencement   of   the   Act.     If   the 

company   was   holding   any   land   with   Linaloe 

cultivation   on   the   date   of   the   commencement   of   the 

Act,   the   same   would   have   vested   in   the   State 

                                                               26

Government   under   Section   79B(3)   of   the   Act   and   an 

amount   as   specified   in   Section   72   would   have   been 

paid.       Section   104,   however,   states   that   the 

provisions of Section 38, Section 63 other than sub-

section (9), thereof, Sections 64, 79-A, 79-B and 80 

shall   not   apply   to   plantations   and   is   not   made 

subject to the provisions of Section 110.  

32.     Section 107 states that the provisions of the 

Act   would   not   apply   to   certain   lands   mentioned 

therein,   but   made   subject   to   the   provisions   of 

Section   110.     Section   107,   to   the   extent   it   is 

relevant   for   the   purpose,   is   extracted   below   for 

easy reference:

       "107.         Act   not   to   apply   to   certain
       lands.- (1) Subject to the provisions of
       Section 110, nothing in this Act, except
       Section 8, shall apply to lands,-

       xxx              xxx             xxx
       xxx              xxx             xxx

       (vi)     used   for   the   cultivation   of
       linaloe;

       xxx              xxx             xxx
       xxx              xxx             xxx

       (2)       Notwithstanding anything in sub-
       section   (1),   no   person   shall,   after   the
       date   of   commencement   of   the   Amendment
       Act   acquire   in   any   manner   for   the 

                                                                27

        cultivation   of   linaloe,   land   of   an
        extent   which   together   with   the   land
        cultivated   by   linaloe,   if   any,   already
        held by him exceeds ten units.

        (3)                  In   respect   of   every
        acquisition contrary to sub-section (2),
        the provisions of Section 66 to 76 shall
        mutatis mutandis apply."

        Section   107,   we   have   already   indicated,   is 

made subject to Section 110, which reads as follows:

        "110.   Certain   lands   to   be   not   exempt
        from   certain   provisions.-  The   State
        Government   may,   by   notification   direct
        that   any   land   referred   to   in   [Section
        107   and   108]   shall   not   be   exempt   from
        such of the provisions of this Act from
        which   they   have   been   exempted   under   the
        said sections."

33.     The   question   that   is   canvassed   before   us   is 

whether   Section   110   is   invalid   due   to   excessive 

delegation   of   legislative   powers   on   the   State 

Government.     Before   we   examine   the   scope   and   ambit 

of the above quoted provision, reference may be made 

to   few   of   the   decided   cases   of   this   Court   on   the 

power of delegation of legislative functions. 

34.     In re:  The Delhi Laws Act, 1912 (supra), this 

Court held that legislatures in India have been held 

to possess wide powers of delegation but subject to 

                                                                28

one   limitation   that   a   legislature   cannot   delegate 

essential   legislative   functions   which   consists   in 

the   determination   of   the   legislative   policy   and   of 

formally enacting that policy into a binding rule of 

conduct.     In  Maharashtra   State   Board   of   Secondary  

and Higher Secondary Education and Anr. v.  Paritosh 

Bhupeshkumar Sheth and Others  (1984) 4 SCC 27, this 

Court   declared   that   while   examining   whether   a 

particular   piece   of   delegated   legislation   -   whether 

in   the   form   of   a   rule   or   regulation   or   any   other 

type of statutory instrument - was in excess of the 

power   of   subordinate   legislation   conferred   on   the 

delegate,   has   to   be   determined   with   reference   only 

to the specific provisions contained in the relevant 

statute   conferring   the   power   to   make   the   rule, 

regulation   etc.   and   the   object   and   purpose   of   the 

Act   as   can   be   gathered   from   the   various   provisions 

of the enactment.  It was held that the Court cannot 

substitute   its   own   opinion   for   that   of   the 

legislature or its delegate as to what principle or 

policy   would   best   serve   the   objects   and   purpose   of 

the   Act   or   sit   in   judgment   over   the   wisdom   and 

                                                                 29

effectiveness   or   otherwise   of   the   policy   laid   down 

by   the   regulation   making   body   and   declare   a 

regulation   to   be  ultra   vires  merely   on   the   ground 

that,   in   the   opinion   of   the   Court,   the   impugned 

provisions   will   not   help   to   serve   the   object   and 

purpose   of   the   Act.     It   is   exclusively   within   the 

province   of   the   legislature   and   its   delegate   to 

determine, as a matter of policy, how the provision 

of   the   Statute   can   best   be   implemented   and   what 

measures,   substantive   as   well   as   procedural   would 

have to be incorporated in the rules or regulations 

for   the   efficacious   achievement   of   the   objects   and 

purposes   of   the   Act.     It   is   not   for   the   Court   to 

examine   the   merits   or   demerits   of   such   a   policy 

because   its   scrutiny   has   to   be   limited   to   the 

question as to whether the impugned regulations fall 

within   the   scope   of   the   regulation-making   power 

conferred on the delegate by the Statute.

35.     Law   is   settled   that   the   Court   shall   not 

invalidate a legislation on the ground of delegation 

of essential legislative functions or on the ground 

of   conferring   unguided,   uncontrolled   and   vague 

                                                            30

powers upon the delegate without taking into account 

the preamble of the Act as also other provisions of 

the statute in the event they provide good means of 

finding   out   the   meaning   of   the   offending   statute. 

The   question   whether   any   particular   legislation 

suffered   from   excessive   delegation,   has   to   be 

determined   by   the   court   having   regard   to   the 

subject-matter,   the   scheme,   the   provisions   of   the 

statute   including   its   preamble   and   the   facts   and 

circumstances   and   the   background   on   which   the 

statute  is enacted.   See  Bhatnagars & Co. Ltd.    v. 

Union of India  AIR 1957 SC 478;  Mohmedalli and Ors. 

v. Union of India  and Ors., AIR 1964 SC 980.

36.    Further,   if   the   legislative   policy   is 

formulated   by   the   legislature,   the   function   of 

supplying details may be delegated to the executive 

for   giving   effect   to   the   policy.     Sometimes,   the 

legislature   passes   an   act   and   makes   it   applicable, 

in the first instance, to some areas and classes of 

persons,   but   empowers   the   government   to   extend   the 

provisions thereof to different territories, persons 

or   commodities,   etc.       So   also   there   are   some 

                                                              31

statutes which empower the government to exempt from 

their   operation   certain   persons,   commodities,   etc. 

Some statutes authorise the government to suspend or 

relax   the   provisions   contained   therein.     So   also 

some   statutes   confer   the   power   on   the   executive   to 

adopt   and   apply   statutes   existing   in   other   states 

without modifications to a new area.  

37.     In     Brij   Sunder   Kapoor      v.     I   Additional  

District Judge and Ors.  (1989) 1 SCC 561 this Court 

held   that   the   Parliament   decided   as   a   matter   of 

policy   that   the   cantonment   areas   in   a   State   should 

be   subject   to   the   same   legislation   relating   to 

control   of   rent   and   regulation   of   housing 

accommodation   as   in   force   in   other   areas   of   the 

State   and   this   policy   was   given   effect   to   by 

empowering   the   Central   Government   to   extend   to   a 

cantonment   area   in   a   State   the   tenancy   legislation 

as in force as in other areas of the State including 

future   amendments   and   that   there   was   no   abdication 

of legislative functions by Parliament.

38.     Chapter   VIII   of   the   Land   Reforms   Act   deals 

with   exemption   provisions.     Section   104   of   the   Act 

                                                              32

deals   with   plantations,   which   says,   that   the 

provisions   of   Section   38,   Section   63,   other   than 

sub-section   (9),   thereof,   Sections   64,   79-A,   79-B 

and 80 shall not apply to plantations, but the power 

to   withdraw   the   exemption   in   respect   of   the 

plantations,   has   not   been   conferred   on   the   State 

Government,   but   evidently   retained   by   the 

Legislature. Legislative policy is therefore clearly 

discernible   from   the   provision   of   the   Statute 

itself,   that,   whenever   the   Legislature   wanted   to 

confer   the   power   to   withdraw   the   exemption   to   the 

State   Government   it   has   done   so,   otherwise   it   has 

retained the power to itself.   

39.     Section   110   of   the   Land   Reforms   Act   empowers 

the   State   Government   to   withdraw   the   exemption 

granted to any land referred to in Sections 107 and 

108.   Section 107 itself has been made "subject to" 

Section   110   of   the   Act.     The   words   `subject   to' 

conveys   the   idea   of   a   provision   yielding   place   to 

another provision or other provisions to which it is 

made subject.   In Black Law  Dictionary, 5th Edn. At  

p.1278, the expression "subject to" has been defined 

                                                               33

as under:

        "Liable,         subordinate,         subservient,
        inferior,   obedient   to;   governed   or
        effected   by;   provided   that;   provided;
        answerable for."

Since   Section   107   is   made   subject   to   Section   110, 

the   former   section   conveys   the   idea   of   yielding   to 

the   provision   to   which   it   is   made   subject   that   is 

Section   110   which   is   the   will   of   legislature. 

Reference may be made to the decisions of this Court 

in  Punjab   Sikh   Regular   Motor   Service,   Moudhapara,  

Raipur v. Regional Transport Authority & Another AIR 

1966   SC   1318,  Joginder   Singh   &   Others   v.   Deputy  

Custodian-General of Evacuee Property & Others    AIR 

1967 SC 145    and    Bharat Hari Singhania & Others  

v.   Commissioner   of   Wealth   Tax   (Central)   &   Others 

(1994)   Supp.  3   SCC  46,  Ashok Leyland Ltd. v. State  

of T.N. & Another  (2004) 3 SCC 1,  Printers (Mysore) 

Ltd.   v.   M.   A.   Rasheed   &   Others  (2004)   4   SCC   460, 

South India Corporation (P) Ltd. v. Secretary, Board  

of   Revenue,   Trivendrum   &   Another  AIR   1964   SC   207, 

Commissioner   of   Wealth   Tax,   Andhra   Pradesh,  

Hyderabad   v.   Trustees   of   H.E.H.   Nizam's   Family  

(Remainder Wealth Trust), Hyderabad (1977) 3 SCC 362 

                                                              34

and Chandavarkar Sita Ratna Rao v. Ashalata S. Guram 

(1986) 4 SCC 447.                

40.     The Legislature's apathy in granting exemption 

for   lands   used   for   cultivation   of   Linaloe   is 

discernible   from   the   language   used   in   sub-section 

(2) of Section 107, which says that no person shall 

after the commencement of the Amendment Act acquire 

in   any   manner   for   the   cultivation   of   Linaloe,   land 

of an extent which together with the land cultivated 

by Linaloe, if any, already held by him exceeds ten 

units.       Legislature,   therefore,   as   matter   of 

policy, wanted to give only a conditional exemption 

for   lands   used   for   Linaloe   cultivation   and   the 

policy   was   to   empower   the   State   Government   to 

withdraw the same especially when the law is that no 

person   can   claim   exemption   as   a   matter   of   right. 

The legislative will was to make Section 107 subject 

to   Section   110   and   not   the   will   of   the   delegate, 

hence, overriding effect has to be given to Section 

110.     Further,   the   Land   Reforms   Act   including 

Section 110 was placed in IXth Schedule in the year 

                                                              35

1965 and, hence, immune from challenge in a court of 

law.   

41.     Dr. Roerich and Mrs. Devika had got only the 

conditional   exemption   from   the   provisions   of   the 

Land   Reforms   Act   for   the   lands   used   for   Linaloe 

cultivation   and,   hence,   they   also   would   have   lost 

ownership   and   possession   of   the   lands   once   the 

exemption had been withdrawn and the land would have 

vested in the State.   The land was purchased by the 

Company   with   that   statutory   condition   from   Roerichs 

and,   hence,   was   bound   by   that   condition.       We, 

therefore, reject the contention that Section 110 is 

void   due   to   excessive   delegation   of   legislative 

powers.

42.     The   State   Government   issued   the   notification 

dated   8.3.1994   in   exercise   of   the   powers   conferred 

by   Section   110   of   the   Land   Reforms   Act   which   was 

published   in   the   official   gazette   on   11.3.94. 

Section   2(22)   of   the   Act   defines   `Notification'   to 

mean   a   notification   published   in   the   official 

gazette.  Section 23 of the General Clauses Act 1897 

                                                                            36

also   states   that   the   publication   in   the   official 

gazette   of   a   rule   or   by-law   purported   to   have   been 

made   in   exercise   of   power   to   make   rules   or   by-laws 

after previous publication shall be conclusive proof 

that the rule or by-law has been duly made.  

43.     This   Court   in  B.K.   Srinivasan   and   Ors.  v. 

State of Karnataka and Ors.    (1987) 1 SCC 658 held 

as follows:-

        "Unlike   Parliamentary   legislation   which
        is   publicly   made,   delegated   or
        subordinate   legislation   is   often   made
        unobtrusively   in   the   chambers   of   a
        minister,   a   secretary   to   the   Government
        or   other   official   dignitary.     It   is,
        therefore,   necessary   that   subordinate
        legislation,   in   order   to   take   effect,
        must be published or promulgated in some
        suitable           manner,              whether         such
        publication             or         promulgation              is
        prescribed by the parent statute or not.
        It   will   then   take   effect   from   the   date
        of such publication or promulgation."

44.     So   far   as   this   case   is   concerned,   the   State 

Government   has   already   followed   the   legal 

requirement of publication of the notification dated 

08.03.1994 which came into effect on 11.03.94.

45.     Mr.         T.R.Andhyarujina,                learned         counsel 

appearing   for   the   appellants   submitted   that   the 

respondent State has not followed the procedure laid 

                                                               37

down in Section 140 of the Act and that the approval 

of   the   notification   by   the   State   Legislature   is   an 

important   circumstance   to   be   taken   into   account   in 

determining its validity.  Learned counsel submitted 

that laying of notification under Section 140 is not 

a   mere   laying   but   is   coupled   with   a 

negative/affirmative   resolution   of   the   Legislature; 

the failure to lay the notification is an illegality 

which  cannot be cured.  

46.     Following is the procedure generally followed 

when   an   order   or   notification   is   laid   before   the 

Legislature:-

        1)         Laying which requires no further
              procedure;
        2)      Laying allied with the affirmative
              procedure; and
        3)             Laying   allied   with   negative
              procedure.

The   object   of   requirement   of   laying   provided   in 

enabling   Acts   is   to   subject   the   subordinate   law 

making authority to the vigilance and control of the 

Legislature.   The degree of control the Legislature 

wants   can   be   noticed   on   the   language   used   in   such 

laying clause.  

47.     We have in this case already found that there 

                                                                   38

has   not   been   any   excessive   delegation   of 

legislative   powers     on   the   State   Government   and   we 

may   now   examine   whether   the   failure   to   follow   the 

procedure laid down under Section 140 of the Act has 

affected   the   legal   validity   of   the   notification. 

Facts would indicate that, in the instant case, the 

notification   has   not   been   laid   before   the 

Legislature, but looking at the language of Section 

140, it has not affected the validity or the effect 

of the notification.   

     For   easy   reference   Section   140   is   extracted 

hereunder:

          "Section 140.  Rules and notifications
       to   be   laid   before   the   State
       Legislature.- Every rule made under this
       Act   and   every   notification   issued   under
       Sections 109, 110 and 139 shall be laid
       as   soon   as   may   be   after   it   is   made   or
       issued   before   each   House   of   the   State
       Legislature while it is in session for a
       total period of thirty days which may be
       comprised   in   one   session   or   in   two
       successive sessions, and, if, before the
       expiry of the session in which it is so
       laid   or   the   session   immediately
       following   both   Houses   agree   in   making
       any   modification   in   the   rule   or
       notification   or   both   Houses   agree   that
       the   rule   or   notification   should   not   be
       made,   the   rule   or   notification   shall
       thereafter   have   effect   only   in   such
       modified form or be of no effect, as the 

                                                               39

        case   may   be;  so   however   that   any   such
        modification   or   annulment   shall   be
        without   prejudice   to   the   validity   of
        anything previously done under that rule
        or notification."
                                 (Emphasis supplied)

48.     The   Constitution   Bench   of   this   Court   in  Jan  

Mohammad Noor's case  (supra)  examined the effect of 

sub-section 5 of Section 26 which provides that the 

rules   shall   be   laid   before   each   House   of   the 

provisional   Legislature,   for   giving   effect. 

Interpreting   that   provision   the   Court   held   that 

Section   26(5)   of   Bombay   Act   29   of   1939   does   not 

prescribe that the Rules acquired validity only from 

the   date  on   which  they   have  been   placed  before   the 

House of Legislature.  The Court held that the Rules 

are valid from the date on which they are made under 

Section 26(1).  The Court noted that the Legislature 

has prescribed that the Rules shall be placed before 

the   House   of   the   Legislature,   but   held   that   the 

failure   to   place   the   rules   before   the   House   of 

Legislature   does   not   effect   the   validity   of   the 

rules   and   merely   because   they   have   not   been   placed 

before   the   House   of   the   Legislature,   the   provision 

                                                                40

cannot be regarded as mandatory.

49.     This   Court   in  Atlas   Cycle   Industries   Ltd.   &  

Others v. State of Haryana (1979) 2 SCC 196 examined 

the   question   relating   to   the   non-compliance   with 

sub-section   (6)   of   Section   3   of   the   Essential 

Commodities   Act,   1955   which   provides   that   every 

order   made   under   the   section   shall   be   laid   before 

both   Houses  of   Parliament  as   soon  as   may  be,   after 

it   is   made.       The   Court   held   that   non-compliance 

with   the   Laying   Clause   did   not   affect   the   validity 

of   the   order   and   make   it   void.     In  Quarry   Owners'  

Association  v.  State of Bihar & Others  (2000) 8 SCC 

655, this court while examining the scope of Section 

28(3)   of   the   Mines   and   Minerals   (Regulation   and 

Development)   Act   1957,   stated   that   when   a   statue 

required the placement of a notification before the 

State Legislature it is the obligation of the state 

to place the same with the specific note before each 

House of State Legislature.  Even if it had not been 

done,   the   State   could   place   the   same   before   the 

House   at   the   earliest   and   the   omission   to   comply 

with   it   would   not   affect   the   validity   of   the 

                                                              41

notifications   and   their   coming   into   force. 

Direction was issued to the State Government to lay 

notifications at the earliest.

 50.    Section   140   does   not   require   the   State 

Legislature   to   give   its   approval   for   bringing   into 

effect   the   notification,   but   a   positive   act   by   the 

Legislature has been contemplated in Section 140 to 

make the notification effective, that does not mean 

that   failure   to   lay   the   notification   has   affected 

the   legal   validity,   its   effect   or   the   action   taken 

precedent to that notification.  We, therefore, hold 

that non-laying of the notification dated 08.03.1994 

before   the   State   Legislature   has   not   affected   its 

validity   or   the   action   taken   precedent   to   that 

notification.       We   have   now,  vide  our   order   dated 

24.02.2011,   directed   the   State   Government   to   place 

the notification before both the Houses of the State 

Legislature following the judgment in Quarry Owners' 

case (supra).  Therefore, the defect, if any, of not 

placing the notification has been cured. 

51.             We   may   also   consider   the   effect   of 

Section 80 of the Land Reforms Act on Section 79-B. 

                                                              42

Section   80   prohibits   transfer   of   any   land   to   non-

agriculturalist.   Section 80(1)(iv), states that it 

shall not be lawful to sell, gift, exchange or lease 

of   any   land,   in   favour   of   a   person,   who   is 

disentitled   under   Section   79-B,   to   acquire   or   hold 

any   land.     The   expression   "land"   has   been   defined 

under   Section   2(18)   which   is   all   comprehensive   and 

takes   in   agricultural   lands,   that   is   land   which   is 

used   or   capable   of   being   used   for   agriculture,   but 

for   the   exemption   granted   under   Section   107(1)(vi) 

lands used for the cultivation of linaloe would have 

fallen   under   Section   2(18).       But,   so   far   the 

company is concerned, the prohibition was total and 

complete since Section 79-B states that it would not 

be   lawful   for   a   company   to   hold   "any   land",   with 

effect and from the date of the commencement of the 

amending   Act.     The   Company,   therefore,   could   not 

have   held   the   land   used   for   the   cultivation   of 

Linaloe on the date of the commencement of the Act. 

Further on withdrawal of exemption vide notification 

dated   08.03.94   the   Company   was   disentitled   to   hold 

the land belonging to Roerichs' since the same would 

                                                              43

be   governed   by   the   provisions   of   the   Land   Reforms 

Act.

52.     We also find no force in the contention that 

opportunity   of   hearing   is   a   pre-condition   for 

exercising powers under Section 110 of the Act.   No 

such requirement has been provided under Section 107 

or   Section  110.     When   the  exemption   was  granted   to 

Roerichs'   no   hearing   was   afforded   so   also   when   the 

exemption   was   withdrawn   by   the   delegate.     It   is 

trite   law   that   exemption   cannot   be   claimed   as   a 

matter   of   right   so   also   its   withdrawal,   especially 

when the same is done through a legislative action. 

Delegated   legislation   which   is   a   legislation   in 

character,   cannot   be   questioned   on   the   ground   of 

violation   of   the   principles   of   natural   justice, 

especially   in   the   absence   any   such   statutory 

requirement.     Legislature   or   its   delegate   is   also 

not   legally   obliged   to   give   any   reasons   for   its 

action while discharging   its legislative function. 

See   -  State   of   Punjab   v.     Tehal   Singh   and   Ors.  

(2002)   2   SCC   7;  West   Bengal   Electricity   Regulatory  

Commission    v.    CESC   Ltd.   etc.   etc.  (2002)   8   SCC 

                                                            44

715;     Pune   Municipal   Corporation   and   Anr.   v.  

Promoters   and   Builders   Association  and   Anr.  (2004) 

10 SCC 796; Bihar State Electricity Board  v.  Pulak  

Enterprises and Ors. (2009) 5 SCC 641.

53.      We,   therefore,   repel   the   challenge   on   the 

validity   of   Section   110   of   the   Karnataka   Land 

Reforms Act as well as the notification dt.8.3.1994 

and   we   hold   that   the   land   used   for   linaloe 

cultivation   would   be   governed   by   the   provisions   of 

the   Land   Reforms   Act   which   is   protected   under 

Article 31B of the Constitution having been included 

in the IXth Schedule.   

PART-II

Constitutional Validity of the Acquisition Act

54.      The   State   Government   after   withdrawing   the 

exemption   granted   to   the   lands   used   for   Linaloe 

cultivation,   felt   the   necessity   to   take   effective 

and   proper   steps   to   manage   the   estate,   its   tree 

growth,   preserve   paintings,   artefact   and   other 

valuables of Roerichs' and their transferees and to 

establish   an   Art   Gallery-cum-Museum.     For   the   said 

purpose   initially   the   State   issued   an   ordinance, 

                                                              45

namely,   the   Roerich   and   Devika   Rani   Roerich   Estate 

(Acquisition and Transfer) Ordinance 1992, which was 

sent for the approval of the President of India.  In 

the   meanwhile   Roerich   couple   passed   away   and   the 

ordinance   was   returned   to   make   sufficient 

amendments.   After   necessary   amendments   ordinance   of 

1995 was issued. However, the ordinance was returned 

by the Government of India informing that it had no 

objection   to   introduce   legislation   as   a   bill   and 

hence the same with requisite amendments was placed 

before the Legislative Assembly and the Legislative 

Council.   The   Acquisition   Act   was   then   passed   and 

subsequently   got   the   assent   of   the   President   on 

15.11.96 and was brought into force on 21.11.1996.

55.     The   Act   was   questioned   by   filing   a   writ 

petition   before   the   High   Court   of   Karnataka   on   the 

ground   that   enactment   providing   for   compulsory 

acquisition   of   Titgunni   Estate   was   not   for   public 

purpose and the compensation provided thereunder was 

illusory.   During   the   pendency   of   the   writ   petition 

the   Act   was   amended   by   the   Amendment   Act   2001, 

w.e.f.   01.11.96   by   inserting   a   new   Section   19A   to 

                                                             46

provide   clarity   for   payment   of   amount   to   the 

owners/interested persons. The challenge against the 

validity of the Act and its provisions were repelled 

by   the   High   Court   except   in   relation   to   certain 

provisions,   providing   for   the   inclusion   of   certain 

members in the board of directors constituted under 

the Act.  

56.     Shri   Andhyarujina,   submitted   that   the 

impugned   Act   does   not   contain   any   provision   for 

protection   of   agrarian   reforms   and   hence   not 

protected by the provisions of Article 31A and hence 

not saved from challenges on the ground of violation 

of Articles 14 and 19 of the Constitution.   Learned 

counsel   also   pointed   out   that   the   management   and 

protection of land used for linaloe cultivation and 

the   preservation   of   artefacts,   paintings   etc.   are 

not part of agrarian reforms. Learned senior counsel 

submitted   that   concept   of   agrarian   reforms   is   a 

dynamic   one   and   this   Court   in   various   decisions 

examined   its   meaning   and   content.     Reference   was 

made   to   the   judgments   of   this   Court   in  State   of  

Kerala  v.  Gwalior   Rayon   Silk   Manufacturing   (Wvg.) 

                                                              47

Co.   Limited      (1993)   2   SCC   713,         Kavalappara 

Kottarathil   Kochuni   &   Others   v.   State   of   Madras   &  

Others  (1960)   3   SCR   887,  P.   Vajravelu   Mudaliar  v. 

Special Deputy Collector, Madras and Another  (1965) 

1 SCR 614,     Balmadies Plantations Ltd. & Others v.  

State of Tamil Nadu (1972) 2 SCC 133.

57.     Shri   Andhyarujina,   also   submitted   that   the 

impugned Act is ex-facie repugnant to the provisions 

of   Land   Acquisition   Act,   1894   and   hence   void   under 

Article 254(1) due to want of Presidential assent on 

repugnancy.   Learned   Counsel   elaborately   referred   to 

the   various   provisions   of   the   impugned   Act   and   the 

Land   Acquisition   Act   to   bring   home   his   point   on 

repugnancy between both the Legislations, the former 

being   a   State   Legislation   and   the   latter   being   a 

Central   Legislation.   Learned   Counsel   specifically 

pointed out that the procedure and the principle for 

the acquisition of land as well as determination of 

compensation, etc., under both the Acts are contrary 

to   each   other   and   hence   the   impugned   Act   can   be 

saved only if Presidential assent is obtained under 

Article 254(2) of the constitution.  Learned Counsel 

                                                             48

submitted   that   the   Acquisition   Act   is   in   pith   and 

substance   a   law   on   acquisition   and   presidential 

assent   under   Article   254(2),   was   warranted   to   save 

that Legislation. 

58.     Shri   K.N.   Bhat,   learned   senior   counsel 

appearing   for   the   appellants   in   CA   No.6521-6537   of 

2003 submitted that Article 300A is almost a replica 

of   Article   31(1),   hence,   all   the   judicial 

pronouncements   rendered   by   this   Court   on   Article 

31(1) would equally apply when we interpret Article 

300A.     Learned   counsel   also   referred   to   the   view 

expressed   by   Justice   Subba   Rao   in  P.   Vajravelu  

Mudaliar's  case (supra) and also referred to  Subodh 

Gopal Bose v. Bejoy Kumar Addya and Others  (1973) 2 

SCC   105   and   few   other   decisions.     Learned   counsel 

submitted that the concept of eminent domain has to 

be read into Article 300A, which is an over-arching 

principle.   Learned counsel also submitted that the 

concept   of   reasonableness,   could   be   the   touchstone 

while   interpreting   a   statute   enacted   to   deprive   a 

person of his property under Article 300A.   Learned 

counsel also referred to the Judgment of this Court 

                                                              49

in  Kavalappara   Kottarathil   Kochuni's  case   (supra) 

and   submitted  that   a  person   can  be   deprived  of   his 

property only by a valid law which can be tested in 

the light of Articles 14 and 21.  

59.       Shri Dushyant R. Dave, learned senior counsel 

appearing   for   the   appellants   in   CA   No.6520   of   2003 

also   supported   the   arguments   of   Shri   Andhyarujina 

and submitted that the concept of eminent domain be 

read   into   Article   300A   of   the   Constitution   and   the 

impugned   Act   is   unconstitutional   for   not   providing 

adequate compensation to the transferors.  Reference 

was   made   to   several   decisions   of   this   Court 

including the decisions in  P. Vajravelu Mudaliar  v.  

Special Deputy Collector, Madras & Anr. (1965) 1 SCR 

614;  Rustom Cavasjee Cooper (Banks Nationalisation)  

v.   Union   of   India  (1970)   1   SCC   248;  Deputy 

Commissioner   and   Collector,   Kamrup   &   Ors.  v.  Durga 

Nath   Sharma  (1968)   1   SCR   561  and  Reliance   Energy 

Limited   &   Anr.   v.          Maharashtra   State   Road  

Development Corporation Ltd. & Ors.    (2007) 8 SCC 1 

etc.  

                                                            50

60.     Shri   Andhyarujina,   referring   to   the   letter 

dated   20.09.1996   submitted   that   the   State   of 

Karnataka   had   sought   the   assent   of   the   President 

only for the specific purpose of Clause(a) of Clause 

(1) of Article 31-A of the Constitution and not for 

any   other  purpose   and  the   assent  was   given  only   in 

response   to   the   said   proposal   of   the   State 

Government   and   there   had   never   been   any   proposal 

pointing out the repugnancy between the impugned Act 

and the Land Acquisition Act and hence the impugned 

Act   is   void   of      ex-facie     repugnancy   between 

provisions of the existing Land Acquisition Act 1894 

and the impugned  Act. In support of his contentions 

learned counsel placed reliance on judgments of this 

Court   in  Gram   Panchayat   of   Village   Jamalpur  v. 

Malwinder Singh & Others (1985) 3 SCC 661; Kaiser-I-

Hind   Pvt.   Ltd.  &   Another  v.  National   Textile 

Corporation (Maharashtra North) Ltd. & Others (2002) 

8 SCC 182.

61.     Shri   Patil,   learned   senior   counsel   appearing 

for   the   Respondent-State   submitted   that   Acquisition 

Act   is   not   open   to   challenge   on   the   ground   of 

                                                             51

violation   of   Article   14   or   19   since   the   same   is 

protected   under   Article   31A   and   the   assent   of   the 

President   was   obtained.   Learned   counsel   submitted 

that the impugned Act was enacted in public interest 

to   provide   for   acquisition   of   Roerich's   Estate,   to 

secure   its   proper   management   and   to   preserve   the 

valuable   tree   growth,   paintings,   art   objects, 

carvings   and   for   the   establishment   of   an   art 

gallery-cum-museum.   Learned   counsel   submitted   that 

general   scheme   of   the   Acquisition   Act   is   for   the 

preservation   of   Linaloe   cultivation   and   other   tree 

growth   hence   constitutes   a   measure   of   agrarian 

reforms and in any view Act does not violate Article 

14 or 19 of the Constitution of India. 

62.     Learned   senior   counsel   also   submitted   that 

Acquisition   Act   was   never   challenged   by   the 

appellants   before   the   High   Court   on   the   ground   of 

repugnancy   or   on   the   ground   of   absence   of 

Presidential   assent   under   Article   254(2)   of   the 

Constitution. Learned counsel submitted that such a 

plea cannot be raised for the first time before this 

Court   since   the   same   raises   questions   of   facts. 

                                                              52

Reference was made to the decisions of this Court in 

Engineering Kamgar Union v.  Electro Steels Castings 

Ltd.   and   Another  (2004)   6   SCC   36;  Bhuwalka   Steel 

Industries   Ltd.     v.  Bombay   Iron   and   Steel   Labour 

Board and Another (2010) 2 SCC 273.  Learned counsel 

submitted   that   in   any   view   assent   of   the   President 

was   sought   for   and   obtained   which   satisfies   the 

requirements   of   Article   254(2)   as   well   as   the 

proviso to Article 31A of the Constitution.  

63.     Learned   counsel   submitted   that   the   Bill   was 

referred   for   the   assent   of   the   President   with   a 

specific note that subject matter of the bill falls 

under Entry 18 of List II and Entry 42 of List III 

of the VIIth Schedule of the Constitution of India. 

Learned   counsel   submitted   that   the   main   object   of 

the   Acquisition   Act   is   not   being   "Acquisition   and 

Requisition   of     Property"   and   the   Legislation   in 

pith   and   substance   is   in   respect   of   "land"   under 

Entry 18 of List II of the Constitution and there is 

no repugnancy between State and Central Legislation 

and   hence   no   assent   of   the   President   under   Article 

254(2) was warranted.   In support of his contention 

                                                               53

learned counsel also relied on the judgments of this 

Court   in  P.N.   Krishnan   Lal   &   others   vs.   Govt.   of  

Kerala  &   Another  (1995)   Suppl.   (2)   SCC   187  and 

Offshore   Holdings   Pvt.   Ltd.              vs.     Bangalore  

Development Authority and Ors. (2011) 3 SCC 139.

64.     After   passing   the   Roerich   and   Devika   Rani 

Roerich Estate (Acquisition and Transfer) Bill 1996 

by the Legislative Assembly and Legislative Council, 

on 10.09.1996, a request was put up in file No. Law 

28   LGN   92   stating   that   subject   matter   of   the   Bill 

would fall under Entry 18 of List II and Entry 42 of 

List   III   of   the   VIIth   Schedule   of   the   Constitution 

pointing   out   that   the   State   Legislative   would   be 

competent   to   enact   such   a   legislation.     Note   also 

indicated   that   the   provisions   of   draft   bill   would 

attract sub-clause (a) of Clause (1) of Article 31A 

of   the   Constitution   inasmuch   as   rights   of   the   land 

owners   were   proposed   to   be   extinguished,   and   hence 

required   the   assent   of   the   President   in   accordance 

with the proviso to Article 31A of the Constitution 

to make it free from attack and to protect it from 

being   declared   as   void   on   the   ground   of 

                                                                   54

inconsistency or violation of Articles 14 and 19 of 

the   Constitution   of   India.   Further,   it   was   also 

proposed   to   place   the   Bill   before   the   Governor   as 

provided   under   Article   200   of   the   Constitution   of 

India   for   consideration   of   the   President   under 

Clause 2 of Article 254 of the Constitution.  Later, 

a letter dated 20.09.1996 was addressed by the State 

of   Karnataka   to   the   Secretary   to   the   Government   of 

India, Ministry of Home Affairs requesting to obtain 

the   assent   of   the   President.     No   reference   to 

Article 254(2) was, however, made in that letter but 

the operative portion of the letter reads as follows 

:-

        "The   subject   matter   of   the   Bill   falls
        under   Entry   18   of   List   II   and   Entry   42
        of   List   III   of   the   7th   Schedule   to   the
        Constitution   of   India.   Therefore,   the
        State   Legislature   is   competent   to   enact
        the measure.

        Since   the   provisions   of   the   Bill   would
        attract   sub-clause   (a)   of   Clause   (1)   of
        Article   31A   of   the   Constitution,   the
        Bill   has   to   be   reserved   for   the   assent
        of   the   President   in   accordance   with   the
        proviso   to   Clause   (1)   thereof   in   order
        to   get   the   protection   of   that   Article.
        Accordingly,   the   Governor   has   reserved
        the   Bill   under   Article   200   of   the 

                                                                          55

        Constitution         of         India         for         the
        consideration of the President."

Later,   the   assent   of   the   President   was   obtained   on 

15.11.96.

65.       The plea of repugnancy can be urged only if 

both   the   legislations   fall   under   the   Concurrent 

List.     Under   Article   254   of   the   Constitution,   a 

State   law   passed   in   respect   of   a   subject   matter 

comprised   in   List   III   would   be   invalid   if   its 

provisions are repugnant to a law passed on the same 

subject by Parliament and that too only if both the 

laws   cannot   exist   together.     The   question   of 

repugnancy   under   Article   254   of   the   Constitution 

arises   when   the   provisions   of   both   laws   are   fully 

inconsistent or are absolutely irreconcilable and it 

is   impossible   without   disturbing   the   other,   or 

conflicting   results   are   produced,   when   both   the 

statutes   covering   the   same   field   are   applied   to   a 

given   set   of   facts.     Repugnancy   between   the   two 

statutes   would   arise   if   there   is   a   direct   conflict 

between   the  two   provisions  and   the  law   made  by   the 

                                                                56

Parliament and the law made by the State Legislature 

occupies   the  same   filed.    Reference  may   be  made   to 

the decisions of this Court in Deep Chand  v. State  

of U.P. & Others AIR 1959 SC 648; Prem Nath Kaul  v.  

State of   Jammu & Kashmir, AIR 1959 SC 749; (1959) 

Supp.   (2)   SCR   270,  Ukha   Kolhe     v.   State   of  

Maharashtra  AIR 1963 SC 1531;  Bar Council of Uttar 

Pradesh v. State of U.P & Another (1973) 1 SCC 261; 

T.   Barai   v.   Henry   Ah   Hoe   &   Another    (1983)   1   SCC 

177;  Hoechst   Pharmaceuticals   v.   State   of   Bihar 

(1983) 4 SCC 45; Lingappa Pochanna Appelwar v. State  

of Maharashtra & Another (1985) 1 SCC 479; and Vijay 

Kumar Sharma & Others v. State of Karnataka & Others 

(1990) 2 SCC 562.  

66.     When   the   repugnancy   between   the   Central   and 

State   Legislations   is   pleaded   we   have   to   first 

examine whether the two legislations cover or relate 

to   the   same   subject   matter.       The   test   for 

determining   the   same   is   to   find   out   the   dominant 

intention   of   the   two   legislations   and   if   the 

dominant   intention   of   the   two   legislations   is 

different, they cover different subject matter then 

                                                               57

merely   because   the   two   legislations   refer   to   some 

allied   or   cognate   subjects,   they   do   not   cover   the 

same field.   A provision in one legislation to give 

effect   to   its   dominant   purpose   may   incidentally   be 

on   the  same   subject  as   covered  by   the  provision   of 

the other legislation, but such partial coverage of 

the same area in a different context and to achieve 

a   different   purpose   does   not   bring   about   the 

repugnancy   which   is   intended   to   be   covered   by 

Article   254(2).          In   other   words,   both   the 

legislations   must   be   substantially   on   the   same 

subject   to   attract          Article   254.         In   this 

connection,   reference   may   be   made   to   the   decisions 

of this Court in Municipal Council Palai  v.  T. J.  

Joseph (1964) 2 SCR 87; Ch. Tika Ramji  v.  State of  

U.P.  1956   SCR   393;  State   of   Karnataka     v.     Shri  

Ranganatha Reddy  (1977) 4 SCC 471;   M. Karunanidhi 

v.   Union   of   India   &   Another  (1979)   3   SCC   431;  and 

Vijay Kumar Sharma& Others v. State of Karnataka &  

Others (1990) 2 SCC 562.   

67.     We   are   of   the   considered   view   that   the 

Acquisition Act, in this case, as rightly contended 

                                                               58

by   the   State,   primarily   falls   under   Entry   18   List 

II, since the dominant intention of the legislature 

was to preserve and protect Roerichs' Estate covered 

by   the   provisions   of   the   Land   Reforms   Act,   on   the 

State   Government   withdrawing   the   exemption   in 

respect   of   the   land   used   for   linaloe   cultivation. 

The   Acquisition   Act,   though   primarily   falls   under 

Entry   18   List   II   incidentally   also   deals   with   the 

acquisition   of   paintings,   artefacts   and   other 

valuable belongings of Roerichs' and, hence, the Act 

partly   falls   under   Entry   42   List   III   as   well. 

Since   the   dominant   purpose   of   the   Act   was   to 

preserve   and  protect   Roerichs'  Estate     as     part   of 

agrarian   reforms,   the   inclusion   of   ancillary 

measures   would   not   throw   the   law   out   of   the 

protection   of   Article   31A(1)(a).         On   the   other 

hand, the Land Acquisition Act, 1894 is an act which 

fell exclusively under Entry 42 List III and enacted 

for   the   purpose   of   acquisition   of   land   needed   for 

public   purposes   for   companies   and   for   determining 

the amount of compensation to be made on account of 

such   acquisition,   which   is   substantially   and 

                                                               59

materially   different   from   the   impugned   Act   whose 

dominant purpose is to preserve and protect "estate" 

governed   by   Art.31A(a)   read   with   Art.31A(2)(a)(iii) 

of the Constitution.

68.     We   are,   therefore,   of   the   considered   view 

that   no   assent   of   the   President   was   required   under 

Article   254(2)   of   the   Constitution   to   sustain   the 

impugned Act, which falls under Article 31A(1)(a) of 

the   Constitution,   for   which   the   assent   of   the 

President   was   obtained.         The   contention   of   the 

counsel that the Acquisition Act was invalid due to 

repugnancy is, therefore, rejected.

69.     We  may   also  state   that  the   Constitution  (17th 

Amendment)   Act,   1964     extended   the   scope   of   the 

expression "estate" in Art.31A(a) as to protect all 

legislations   on   agrarian   reforms   and   the   expression 

"estate"   was   given   a   wider   meaning   so   as   to   bring 

within   its   scope   lands   in   respect   of   which 

provisions   are   normally   made   in   land   reforms 

enactments.   Art.31A(2)(a)(iii)   brings   in   any   land 

held   or   let   for   the   purpose   of   agriculture   or   for 

purpose ancillary thereto, including waste or vacant 

                                                               60

land,   forest   land,   land   for   pasture   or   sites   of 

buildings   and   other   structure   occupied     by   the 

cultivators of land etc.  

70.             In  Gwalior   Rayon   Silk   Manufacturing  

(Wvg.) Co. Ltd's  case (supra), this Court held that 

the   concept   of   agrarian   reform   is   a   complex   and 

dynamic   one   promoting   wider   interests   than 

conventional   reorganisation   of   the   land   system   or 

distribution   of   land,   which   is   intended   to   realise 

the social function of the land and includes various 

other   proposals   of   agrarian   reforms.     To   test 

whether   the   law   was   intended   for   agrarian   reforms, 

the   court   is   required   to   look   to   the   substance   of 

the   Act   and   not   its   mere   outward   form.       In 

Kunjukutty Sahib v. State of Kerala & Another (1972) 

2   SCC   364,   this   Court   held   that   any   provision   for 

promotion   of   agriculture   or   agricultural   population 

is an agrarian reform, which term is wider than land 

reforms.   In  Mahant   Sankarshan   Ramanuja   Das   Goswami  

etc., etc. v. State of Orissa & Another (1962) 3 SCR 

250, this Court held that a law for the acquisition 

of   an   estate   etc.   does   not   lose   the   protection   of 

                                                                61

Article   31A(1)   merely   because   ancillary   provisions 

are included in such law.   

71.     The   Acquisition   Act   was   enacted   in   public 

interest, to preserve and protect the land used for 

the linaloe cultivation and its tree growth as part 

of   agrarian   reforms   which   is   its   dominant   purpose. 

Proposal   to   preserve   the   paintings,   artefacts, 

carvings   and   other   valuables   and   to   establish   an 

Art-Gallery-cum-Museum   are   merely   ancillary   to   the 

main purpose.  The dominant purpose of the Act is to 

protect   and   preserve   the   land   used   for   Linaloe 

cultivation,   a   part   of   agrarian   reforms.     The   Act 

is,   therefore,   saved   by   the   provisions   of 

Art.31A(1)(a).   

72.     We,   therefore,   hold   that   Roerich's   estate 

falls   within   the   expression   "estate"   under   clause 

(2)   of   Article   31A   of   the   Constitution   and   the   Act 

has obtained the assent of the President, hence, is 

protected   from   the   challenge   under   Articles   14   and 

19 of the Constitution of India.   No arguments have 

been   raised   on   the   applicability   or   otherwise   of 

Article   31C   and   hence   it   is   unnecessary   to   examine 

                                                                62

whether   the   Act   is   protected   by   Article   31C   of   the 

Constitution or not.

Part-III

Article 300A of the Constitution and the Acquisition
Act

73.     We   will   now   examine   the   validity   of   the 

Acquisition Act on the touchstone of Article 300A of 

the Constitution and examine whether the concept of 

eminent   domain   be   read   into   Art.300A   and   in   the 

statute enacted to deprive a person of his property. 

74.     Shri   Andhyarujina,   learned   senior   counsel 

submitted   that   Art.300A   and   the   statute   framed 

should satisfy the twin principles of public purpose 

and   adequate   compensation.         Learned   counsel 

submitted   that   whenever   there   is   arbitrariness   in 

State action whether it be of the legislature or of 

the   executive   or   of   an   authority   under   Article   12, 

Article 14 springs into action and strikes down such 

State action as well as the legislative provisions, 

if   it   is   found   to   be   illegal   or   disproportionate. 

Reference was made to the judgments of this Court in 

Kavalappara Kottarathil Kochuni's  case (supra),  E.P 

Royappa  v.  State   of   Tamil   Nadu   &   Another  (1974)   4 

                                                              63

SCR   3;  Maneka   Gandhi  v.  Union   of   India   &   Another 

1978   (1)   SCC   248;      Ramana   Dayaram   Shetty         v. 

International   Airport   Authority   of   India  &   Others 

(1979)   3   SCC   489;  Kasturi   Lal   Lakshmi   Reddy,  

represented   by   its   Partner   Kasturi   Lal,   Jammu   &  

Others v. State of Jammu & Kashmir & Another. (1980) 

4 SCC 1.   Learned counsel submitted that even a tax 

law   can   be   discriminatory   and   violative   of   Article 

14   or   confiscatory   and   hence   can   be   subjected   to 

judicial review.   Learned counsel made reference to 

the decisions of this court in  Chhotabhai Jethabhai  

Patel & Co.  v.  Union of India & Another  (1962) Supp 

(2)   SCR   1   and  Kunnathat   Thathunni   Moopil   Nair    v. 

State of Kerala & Another AIR 1961 SC 552.  

75.     Shri Andhyarujina also submitted that the Act 

does not provide for any principle or guidelines for 

the   fixation   of   the   compensation   amount   and   the 

amount   fixed   is   illusory,   compared   to   the   value   of 

the property taken away from the company in exercise 

of   the   powers   of   eminent   domain.     Learned   senior 

counsel submitted that the inherent powers of public 

purpose   and   eminent   domain   are   embodied   in   Article 

                                                                64

300A,   and   Entry   42   List   III,   "Acquisition   and 

Requisitioning   of   Property"   which   necessarily 

connotes   that   the   acquisition   and   requisitioning   of 

property   will   be   for   a   public   use   and   for 

compensation,   as   it   is   the   legislative   head   for 

eminent   domain.          Learned   senior   counsel   also 

submitted   that   the   twin   requirements   of   public 

purpose   and   compensation   though   seen   omitted   from 

Article   300A,   but   when   a   person   is   deprived   of   his 

property,   those   limitations   are   implied   in   Article 

300A   as   well   as   Entry   42   List   III   and   a 

Constitutional Court can always examine the validity 

of the statute on those grounds. 

76.     Learned senior counsel traced the legislative 

history   and   various   judicial   pronouncements   of   this 

Court   in   respect   of   Articles   19(1)(f),   31(1)   and 

31(2)   and   submitted   that   those   are   useful   guides 

while   interpreting   Article   300A   and   the   impugned 

Act.     Reference   was   made   to   the   judgments   of   this 

Court   in  State   of   Bihar  v.  Maharajadhiraja   Sir 

Kameshwar   Singh   of   Darbhanga   and   Ors.  (1952)   1   SCR 

889;  State of West Bengal   v.  Union of India  (1964) 

                                                             65

1   SCR   371;  Sub-Committee of Judicial Accountability 

v. Union of India & Others  (1991) 4 SCC 699;   I.R.  

Coelho(Dead) by LRs. v. State of Tamil Nadu (2007) 2 

SCC   1;  D.C.   Wadhwa   &   Others  v.  State   of   Bihar   &  

Others  (1987) 1 SCC 378  and  Glanrock Estate Private 

Limited. v. State of Tamil Nadu (2010) 10 SCC 96.   

77.     Learned   counsel   further   submitted   that   the 

action   depriving   a   person   of   just   and   fair 

compensation   is   also   amenable   to   judicial   review 

under   Articles   32   and   226   of   the   Constitution   of 

India, which is the quintessence of the rule of law, 

otherwise   the   Constitution   would   be   conferring 

arbitrary   and   unbridled   powers   on   the   Legislature, 

to deprive a person of his property.   Reference was 

made   to   the   provisions   of   the   Constitutions   of 

Australia and Republic of South Africa.  

78.     Mr. Patil,  on the other hand, contended that, 

having   regard   to   the   express   language   of   Article 

300A,   the   common   law   limitations   of   eminent   domain 

cannot   be   read   into   that   Article   especially   when, 

the right to property is no more a Fundamental Right 

on   deletion   of   Article   19(1)(f),   Article   31(1)   and 

                                                              66

(2).     Learned   senior   counsel   submitted   that   the 

history   of   Constitutional   Amendments   shows   that   the 

Legislature in its wisdom expressed its intention to 

do   away   with   the   requirement   of   public   purpose   and 

compensation.     Further,   the   adequacy   of   the   amount 

fixed   by   Legislature   is   also   not   amenable   to 

judicial review.    

79.     Learned   senior   counsel   also   referred   to   the 

decisions   of   this   Court   reported   in  Subodh   Gopal  

Bose's  case   (supra),  Dwarakadas   Shrinivas  (1954)   1 

SCR   674;  Sir   Kameshwar   Singh's    case   (supra),  P.  

Vajravelu   Mudaliar's  case   (supra)   and  State   of 

Gujarat    v.   Shantilal Mangaldas & Others  (1969) 1 

SCC 509.   

80.     Learned   senior   counsel   submitted   that   the 

impugned Act has provided Rs.5 crore to meet various 

priorities,   which   cannot   be   said   to   be   illusory, 

especially   when   the   Government   has   withdrawn   the 

exemption granted with respect to the land used for 

linaloe   cultivation.     Further,   it   was   pointed   out 

but   for   impugned   Act   the   Roerich's   or   the 

transferors   would   have   got   only   Rs.2   lakhs   under 

                                                                       67

Section 72 of the Land Reforms Act, if they were in 

possession and ownership of the land.  

81.     Learned   counsel   submitted,   in   any   view,   sale 

deeds   dated   23.03.1991   and   16.02.1992   would   show 

that   the   company   had   paid   only   a   total   sale 

consideration   of   Rs.1,46,10,000     for   purchasing   the 

lands   from   Roerichs'   but   the   transferees/owners   and 

other   claimants,   if   any,   would   get   more   than   what 

they   had   paid.         Learned   counsel   also   submitted 

that         Section         19A         also         provides         for 

principles/machinery   for   payment   of   amount   to   the 

owners/interested   persons   and   the   amount   is   to   be 

apportioned among owners, transferees and interested 

persons having regard to value on the appointed day 

i.e.   18.11.1996.       Further   learned   counsel   also 

submitted   that   the   company   has   not   perfected   their 

title or possession over the land and litigation is 

pending   in   the   civil   court   between   the   company   and 

the other claimants.

82.     Right to life, liberty and property were once 

considered to be inalienable rights under the Indian 

Constitution,   each   one   of   these   rights   was 

                                                             68

considered to be inextricably bound to the other and 

none would exist without the other.   Of late, right 

to property parted company with the other two rights 

under the Indian Constitution and took the position 

of a statutory right.   Since ancient times, debates 

are going on as to whether the right to property is 

a   "natural"   right   or   merely   a   creation   of   `social 

convention'   and   `positive   law'   which   reflects   the 

centrality   and   uniqueness   of   this   right.     Property 

rights   at   times   compared   to   right   to   life   which 

determine   access   to   the   basic   means   of   sustenance 

and   considered   as   prerequisite   to   the   meaningful 

exercise   of   other   rights   guaranteed   under   Article 

21.  

83.      Eminent   thinkers   like           Hugo   Grotius,  

Pufendorf,   John   Locke,   Rousseau   and   William  

Blackstone  had   expressed   their   own   views   on   the 

right to property.   Lockean rhetoric of property as 

a   natural   and   absolute   right   but   conventional   in 

civil   society   has,   its   roots   in   Aristotle   and 

Aquinas, for Grotius and Pufendorf property was both 

natural   and   conventional.     Pufendrof,   like   Grotius, 

                                                                69

never recognised that the rights of property on its 

owners   are   absolute   but   involve   definite   social 

responsibilities,   and   also   held   the   view   that   the 

private property was not established merely for the 

purpose   "allowing   a   man   to   avoid   using   it   in   the 

service of others, and to brood in solitude over his 

hoard   or   riches."         Like   Grotius,   Pufendorf 

recognised   that   those   in   extreme   need   may   have   a 

right   to   the   property   of   others.     For   Rousseau, 

property   was   a   conventional   civil   right   and   not   a 

natural   right   and   private   property   right   was 

subordinate   to   the   public   interest,   but   Rousseau 

insisted   that   it   would   never   be   in   the   public 

interest   to   violate   them.     With   the   emergence   of 

modern   written   constitutions   in   the   late   eighteenth 

century   and   thereafter,   the   right   to   property   was 

enshrined   as   a   fundamental   constitutional   right   in 

many of the Constitutions in the world and India was 

not an exception.  Blackstone declared that so great 

is   the   regime   of   the   law   for   private   property   that 

it will not authorise the land violation if it - no, 

not   even   for   the   general   good   of   the   whole 

                                                               70

community.        Writings   of   the   above   mentioned 

political   philosophers   had   also   its   influence   on 

Indian Constitution as well.

EMINENT DOMAIN

84.     Hugo Grotius is credited with the invention of 

the term  "eminent domain" (jus or dominium eminens) 

which implies that public rights always overlap with 

private   rights   to   property,   and   in   the   case   of 

public   utility,   public   rights   take   precedence. 

Grotius   sets   two   conditions   on   the   exercise   of   the 

power   of   eminent   domain:   the   first   requisite   is 

public   advantage   and   then   compensation   from   the 

public   funds   be   made,   if   possible,   to   the   one   who 

has   lost   his   right.     Application   of   the   above 

principle   varies   from   countries   to   countries. 

Germany,   America   and   Australian   Constitutions   bar 

uncompensated   takings.            Canada's   constitution, 

however,   does   not   contain   the   equivalent   of   the 

taking clause, and eminent domain is solely a matter 

of statute law, the same is the situation in United 

Kingdom   which   does   not   have   a   written   constitution 

as   also   now   in   India   after   the   44th  Constitutional 

                                                             71

Amendment.

85.     Canada   does   not   have   an   equivalent   to   the 

Fifth   Amendment   taking   clause   of   the   U.S. 

Constitution   and   the   federal   or   provincial 

governments   are   under   any   constitutional   obligation 

to   pay   compensation   for   expropriated   property. 

Section   1(a)   of   the   Canadian   Bill   of   Rights   does 

state   that,   "The   right   of   the   individual   to   life, 

liberty,   security   of   a   person   and   enjoyment   of 

property   and   the   right   not   to   be   deprived   thereof 

except by due process of law."  

86.     In   Australia,   Section   51   (xxxi)   of   the 

Constitution   permits   the   federal   government   to   make 

laws with respect to "the acquisition of property on 

just terms from any State or persons for any purpose 

in   respect   of   which   the   Parliament   has   powers   to 

make laws."  

87.     Protocol   to   the   European   Convention   on   Human 

Rights   and   Fundamental   Freedom,   Article   1   provides 

that   every   natural   or   legal   person   is   entitled   to 

the peaceful enjoyment of his possession and no one 

shall   be   deprived   of   his   possessions   except   in 

                                                               72

public   interest   and   subject   to   the   conditions 

provided   by   law   and   by   the   several   principles   of 

International law.   

88.     Fifth Amendment of the U.S. Constitution says 

that the government shall not take private property 

for   public   use   without   paying   just   compensation. 

This provision referred to as the eminent domain, or 

taking   clause   has   generated   an   enormous   amount   of 

case laws in the United States of America.

89.     The   US   Supreme   Court   in  Hawaii   Housing  

Authority v.  Midkiff, 467 US 229 (1984) allowed the 

use   of   eminent   domain   to   transfer   land   from   lesser 

to   lessees.     In   that   ruling   the   court   held   the 

government does not itself have the use the property 

to   legitimate   taking,   it   is   a   takings   purpose   and 

not   its   mechanics   that   must   pass   the   muster   under 

the   public   use   clause.     The   US   Supreme   Court   later 

revisited the question on what constitute public use 

in  Kelo   v.   City   of   New   London  (545   US   469   (2005). 

In that case the Court held that a plan of economic 

development,   that   would   primarily   benefit   a   major 

pharmaceutical company, which incidentally benefited 

                                                                73

the   public   in   the   nature   of   increased   employment 

opportunities   and   increased   tax   benefits   was   a 

`public use'.  The Court rejected the arguments that 

takings   of   this   kind,   the   Court   should   require   a 

`reasonable   certainty'   that   the   respective   public 

benefits will actually accrue.   

90.     Eminent   domain   is   distinguishable   alike   from 

the   police   power,   by   which   restriction   are   imposed 

on private property in the public interest, e.g. in 

connection   with   health,   sanitation,   zoning 

regulation, urban planning and so on from the power 

of taxation, by which the owner of private property 

is   compelled   to   contribute   a   portion   of   it   for   the 

public   purposes   and   from   the   war-power,   involving 

the destruction of private property in the course of 

military   operations.       The   police   power   fetters 

rights   of   property   while   eminent   domain   takes   them 

away.     Power   of   taxation   does   not   necessarily 

involve   a   taking   of   specific   property   for   public 

purposes,   though   analogous   to   eminent   domain   as 

regards   the   purposes   to   which   the   contribution   of 

the taxpayer is to be applied.     Further, there are 

                                                              74

several   significant   differences   between   regulatory 

exercises of the police powers and eminent domain of 

deprivation   of   property.       Regulation   does   not 

acquire   or   appropriate   the   property   for   the   State, 

which   appropriation   does   and   regulation   is   imposed 

severally   and   individually,   while   expropriation 

applies   to   an   individual   or   a   group   of   owners   of 

properties.

91.     The   question   whether   the   "element   of 

compensation" is necessarily involved in the idea of 

eminent domain arose much controversy.  According to 

one school of thought (See Lewis, Eminent Domain, 3rd 

Edition,   1909)   opined   that   this   question   must   be 

answered   in   the   negative,   but   another   view   (See 

Randolph Eminent Domain in the United States (Boston 

1894   [AWR]),   the   claim   for   compensation   is   an 

inherent attribute of the concept of eminent domain. 

Professor   Thayer   (cases   on   Constitutional   law   Vol 

1.953),   however,   took   a   middle   view   according   to 

which the concept of eminent domain springs from the 

necessity   of   the   state,   while   the   obligation   to 

reimburse   rests   upon   the   natural   rights   of 

                                                                75

individuals.       Right   to   claim   compensation,   some 

eminent   authors   expressed   the   view,   is   thus   not   a 

component part of the powers to deprive a person of 

his property but may arise, but it is not as if, the 

former cannot exist without the other.  Relationship 

between   Public   Purpose   and   Compensation   is   that   of 

"substance   and   shadow".           Above   theoretical 

aspects   of   the   doctrine   have   been   highlighted   only 

to   show   the   reasons,   for   the   inclusion   of   the 

principle   of   eminent   domain   in   the   deleted   Article 

31(2)   and   in   the   present   Article   30(1A)   and   in   the 

2nd  proviso   of   Article   31A   of   our   Constitution   and 

its apparent exclusion from Article 300A.  

92.     Our   Constitution   makers   were   greatly 

influenced by the Western doctrine of eminent domain 

when   they   drafted   the   Indian   Constitution   and 

incorporated the right to property as a Fundamental 

Right in Article 19(1)(f), and the element of public 

purpose   and   compensation   in   Articles   31(2).       Of 

late,   it   was   felt   that   some   of   the   principles   laid 

down   in   the   Directive   Principles   of   State   Policy, 

which   had   its   influence   in   the   governance   of   the 

                                                              76

country,   would   not   be   achieved   if   those   articles 

were   literally   interpreted   and   applied.           The 

Directive   Principles   of   the   state   policy   lay   down 

the fundamental principles for the governance of the 

country, and through those principles, the state is 

directed to secure that the ownership and control of 

the   material   resources   of   the   community   are   so 

distributed as best to sub-serve the common good and 

that   the   operation   of   the   economic   system   does   not 

result   in   the   concentration   of   wealth   and   means   of 

production   to   the   common   detriment.       Further,   it 

was also noticed that the fundamental rights are not 

absolute   but   subject   to   law   of   reasonable 

restrictions   in   the   interest   of   the   general   public 

to   achieve   the   above   objectives   specially   to 

eliminate Zamindari system.    

93.     While   examining   the   scope   of   the   Bihar   Land 

Reforms   Act,   1950   conflicting   views   were   expressed 

by the Judges with regard to the meaning and content 

of   Article   19(1)(f)   and   Article   31   as   reflected   in 

Sir Kameshwar Singh's    case (supra).   Suffice it to 

say   that   the   Parliament   felt   that   the   views 

                                                                77

expressed   by   the   judges   on   the   scope   of   Articles 

19(1)(f)   and   31   might   come   as   a   stumbling   block   in 

implementing   the   various   welfare   legislations   which 

led   to   the   First   Constitutional   Amendment   1951 

introducing   Articles   31A   and   31B   in   the 

Constitution.

94.     Article   31A   enabled   the   legislature   to   enact 

laws   to   acquire   estates   which   also   permitted   the 

State   in   taking   over   of   property   for   a   limited 

period either in the `public interest' or to `secure 

the   proper   management   of   the   property',   amalgamate 

properties,   and   extinguish   or   modify   the   rights   of 

managers,   managing   agents,   directors,   stockholders 

etc.       Article   provides   that   such   laws   cannot   be 

declared   void   on   the   grounds   that   they   are 

inconsistent with Articles 14 and 19.    Article 31B 

protected   the   various   lands   reform   laws   enacted   by 

both   the   Parliament   and   the   State   Legislatures   by 

stating   that   none   of   these   laws,   which   are   to   be 

listed in the Ninth Schedule, can become void on the 

ground that they violated any fundamental right. 

95.     This   Court   in   a   series   of   decisions   viz.   in 

                                                                78

State of West Bengal v. Bella Banerjee & Others  AIR 

1954 SC 170 and State of West Bengal v. Subodh Gopal  

Bose  AIR 1954 SC 92 took the view that Article 31, 

clauses   (1)   and   (2)   provided   for   the   doctrine   of 

eminent domain and under clause (2) a person must be 

deemed   to   be   deprived   of   his   property   if   he   was 

"substantially dispossessed" or his right to use and 

enjoy   the   property   was   "seriously   impaired"   by   the 

impugned   law.     The   Court   held   that   under   Article 

31(1)   the   State   could   not   make   a   law   depriving   a 

person   of   his   property   without   complying   with   the 

provisions   of   Article   31(2).       In  Bella   Banerjee's  

case   (supra),   this   Court   held   that   the   legislature 

has the freedom to lay down principles which govern 

the   determination   of   the   amount   to   be   given   to   the 

owners   of   the   property   appropriated,   but   the   Court 

can   always,   while   interpreting   Article   31(1)   and 

Article   31(2),   examine   whether   the   amount   of 

compensation   paid   is   just   equivalent   to   what   the 

owner had been deprived of.   

96.     The Parliament, following the above judgment, 

brought   in   the   Fourth   Amendment   Act   of   1955   and 

                                                                79

amended clause (2) of Article 31 and inserted clause 

(2-A) to Article 31.  The effect of the amendment is 

that   clause   (2)   deals   with   acquisition   or 

requisition   as   defined   in   clause   (2-A)   and   clause 

(1) covers deprivation of a person's property by the 

state   otherwise   than   by   acquisition   or   requisition. 

The amendment enabled the State to deprive a person 

of his property by law.    Under amended clause (2), 

the   property   of   a   citizen   could   be   acquired   or 

requisitioned by law which provides for compensation 

for   the   property   so   acquired   or   requisitioned   and 

either fixes the amount of compensation or specifies 

the principles on which and the manner in which the 

compensation   is   to   be   determined.     However,   it   was 

also   provided   that   no   such   law   could   be   called   in 

question   in   any   court   on   the   ground   that   the 

compensation provided by that law was not adequate. 

97.     This   Court   in         Kavalappara   Kottarathil  

Kochuni's  case (supra) held that Articles 31(1) and 

(2)   are   different   fundamental   rights   and   that   the 

expression   `law"   in   Article   31(1)   shall   be   a   valid 

law   and   that   it   cannot   be   a   valid   law,   unless   it 

                                                               80

imposes   a   reasonable   restriction   in   public   interest 

within the meaning of Article 19(5) and therefore be 

justiciable.  

98.     The   Constitution   was   again   amended   by   the 

Seventeenth   Amendment   Act   of   1964,   by   which   the 

State   extended   the   scope   of   Article   31A   and   Ninth 

Schedule to protect certain agrarian reforms enacted 

by   the   Kerala   and   Madras   States   and   Jagir,   Inam, 

muafi or any other grant, janmam, ryotwari etc. were 

included   within   the   meaning   of   "estate".     It   also 

added   the   2nd  proviso   to   clause   (1)   to   protect   a 

person   of   being   deprived   of   land   less   than   the 

relevant   land   ceiling   limits   held   by   him   for 

personal   cultivation,   except   on   payment   of   full 

market value thereof by way of compensation.  

99.     This   Court   in  P.   Vajravelu   Mudaliar's  case 

(supra)   examined   the   scope   of   the   Land   Acquisition 

(Madras Amendment) Act 1961 by which the lands were 

acquired   for   the   purpose   of   building   houses   which 

move   was   challenged   under   Articles   31   and   14.     The 

Court   held   that   if   the   compensation   fixed   was 

illusory   or   the   principles   prescribed   were 

                                                                81

irrelevant to the value of the property at or about 

the   time   of   acquisition,   it   could   be   said   that   the 

Legislature   had   committed   a   fraud   on   power   and 

therefore the law was inadequate.   Speaking for the 

Bench,   Justice   Subha   Rao   stated   that   "If   the 

legislature,   through   its  ex   facie  purports   to 

provide for compensation or indicates the principles 

for   ascertaining   the   same,   but   in   effect   and 

substance   takes   away   a   property   without   paying 

compensation for it, it will be exercising power it 

does   not   possess.     If   the   Legislature   makes   a   law 

for   acquiring   a   property   by   providing   for   an 

illusory   compensation   or   by   indicating   the 

principles   for   ascertaining   the   compensation   which 

do   not   relate   to   the   property   acquired   or   to   the 

value   of   such   property   at   or   within   a   reasonable 

proximity   of   the   date   of   acquisition   or   the 

principles   are   so   designed   and   so   arbitrary   that 

they do not provide for compensation at all, one can 

easily   hold   that   the   legislature   made   the   law   in 

fraud of its powers."            Justice          Subha         Rao 

reiterated   his   view   in  Union   of   India   v.     Metal  

                                                                 82

Corporation of India Ltd. & Another AIR 1967 SC 637. 

100.    In  Shantilal   Mangaldas's   case  (supra),   the 

validity   of   Bombay   Town   Planning   Act   1958   was 

challenged before this Court on the ground that the 

owner  was to  be given  market value  of land  at date 

of   declaration   of   scheme,   which   was   not   the   just 

equivalent of the property acquired, the Court held 

that     after   the   Fourth   Amendment   resulting   in   the 

changes   to   Article   31(2)   the   question   of   `adequacy 

of   compensation'   could   not   be   entertained. 

Justice Hidayatullah stated that the stance taken in 

the   previous   case   by   Justice   Subha   Rao   as  "obiter  

and   not   binding".     The   validity   of   the   Banking 

Companies (Acquisition and Transfer of Undertakings) 

Act 1969 came up for consideration before the eleven 

judges Bench of this Court in Rustom Cowasjee Cooper  

v. Union of India  (1970) 2 SCC 298. The Act, it was 

pointed   out,   did   lay   down   principles   for 

determination   and   payment   of   compensation   to   the 

banks,   which   was   to   be   paid   for   in   form   of   bonds, 

securities   etc.,   and   compensation   would   not   fulfil 

the   requirement   of   Article   31(2).       A   majority   of 

                                                              83

the   judges   accepted   that   view   and   held   that   both 

before   and   after   the   amendment   to   Article   31(2) 

there   was   a   right   to   compensation   and   by   giving 

illusory   compensation   the   constitutional   guarantee 

to   provide   compensation   for   an   acquisition   was   not 

complied   with.              The   Court   held   that   the 

Constitution guarantees a right to compensation - an 

equivalent   in   money   of   the   property   compulsorily 

acquired   which   is   the   basic   guarantee   and, 

therefore,   the   law   must   provide   compensation,   and 

for   determining   compensation   relevant   principles 

must   be   specified;   if   the   principles   are   not 

relevant   the   ultimate   value   determined   is   not 

compensation.

101.    The   validity   of   Articles   19(1)(f)   and   (g)   was 

also the subject matter of  I.C. Golaknath and Others  

v. State of Punjab, AIR 1967 SC 1643.   In that case, 

a large portion of the lands of Golak Nath family was 

declared   surplus   under   the   Punjab   Security   of   Land 

Tenures Act 1953.       They challenged the act on the 

grounds   that   it   denied   them   their   Constitutional 

Rights to acquire and hold property and practice any 

                                                              84

profession.   Validity   of   Articles   19(1)(f)   and   (g), 

the   17th   Amendment,   the   1st   Amendment   and   the   4th 

Amendment were also questioned.   Chief Justice Subha 

Rao   speaking   for   the   majority   said   that   the 

Parliament   could   not   take   away   or   abridge   the 

Fundamental Rights and opined that those rights form 

`basic   structure'   of   the   Constitution   and   any 

amendment to the Constitution can be made to preserve 

them, not to annihilate.

102.    The Parliament enacted the (24th  Amendment) Act 

1971,   by   which   the   Parliament   restored   to   the 

amending   power   of   the   Parliament   and   also   extended 

the   scope   of   Article   368   which   authorised   the 

Parliament to amend any part of the Constitution.

103.    Parliament   then   brought   in   the   25th   Amendment 

Act, 1971 by which Article 31(2) was amended by which 

private   property   could   be   acquired   on   payment   of   an 

"amount"   instead   of   "compensation".       A   new   Article 

31(C)   was   also   inserted   stating   that   "no   law   giving 

effect   to   the   policy   of   the   State   towards   acquiring 

the principles specified in clause (b) or clause (c) 

of   Article   39   shall   be   deemed   to   be   void   on   the 

                                                               85

ground that it is inconsistent with, or takes away or 

abridges   any   of   the   rights   conferred   by   Article   14, 

Article   19   or   Article   31;   and   no   law   containing   a 

declaration   that   it   is   for   giving   effect   to   such 

policy   shall   be   called   in   question   in   any   court   on 

the   ground   that   it   does   not   give   effect   to   such 

policy.  

104.    The   constitutionality   of   the   above   amendments 

was   also   the   subject   matter   in          His   Holiness  

Kesavananda Bharati Sripadagalvaru v. State of Kerala  

&   Another  (1973)   4   SCC   225,   which   overruled   the 

principles laid down in  Gokalnath's  case (supra) and 

held that a Constitutional amendment could not alter 

the   basic   structure   of   the   Constitution,   and   hence 

Article   19(1)(f)   was   not   considered   to   be   the   basic 

structure of the Constitution, as later explained in 

Indira Nehru Gandhi  v.  Raj Narain  (1975) Supp. SCC 

1.

105.    We are in these cases, primarily concerned with 

the   scope   of   the   Forty   Fourth   Amendment   1978,   which 

deleted   Article   19(1)(f)   and   Article   31   from   the 

Constitution   of   India   and   introduced   Article   300A, 

                                                                 86

and   its   impact   on   the   rights   of   persons,   who   are 

deprived   of   their   properties.       We   have   extensively 

dealt with the scope of Articles 19(1)(f) and Article 

31   as   interpreted   in   the   various   decisions   of   this 

Court   so   as   to   examine   the   scope   and   content   of 

Article   300A   and   the   circumstances   which   led   to   its 

introduction.       The   Forty   Fourth   Amendment   Act, 

inserted   in   Part   XII,   a   new   chapter:   "Chapter   IV   - 

Right   to   Property   and   inserted   Article   300A,   which 

reads as follows:-

        "No person shall be deprived of property
        save by authority of law."  

106.    Reference   to   the   Statement   of   Objects   and 

Reasons of the 44th Amendment in this connection may 

be apposite.   Paragraphs 3, 4 and 5 of the Statement 

of Objects and Reasons reads as follows:    

                "3.   In   view   of   the   special
        position   sought   to   be   given   to
        fundamental   rights,   the   right   to
        property,   which   has   been   the   occasion
        for   more   than   one   Amendment   of   the
        Constitution,   would   cease   to   be   a
        fundamental   right   and   become   only   a
        legal   right.   Necessary   amendments   for
        this   purpose   are   being   made   to   Article
        19   and   Article   31   is   being   deleted.   It
        would,   however,   be   ensured   that   the
        removal   of   property   from   the   list   of
        fundamental   rights   would   not   affect   the 

                                                                87

        right   of   minorities   to   establish   and
        administer   educational   institutions   of
        their choice. 

        4.   Similarly,   the   right   of   persons
        holding   land   for   personal   cultivation
        and   within   the   ceiling   limit   to   receive
        compensation   at   the   market   value   would
        not be affected. 

        5.   Property,   while   ceasing   to   be   a
        fundamental   right,   would,   however,   be
        given   express   recognition   as   a   legal
        right,   provision   being   made   that   no
        person shall be deprived of his property
        save in accordance with law."

107.    In  Jilubhai Nanbhai Khachar & Others v. State  

of   Gujarat   &   Another  (1995)   Supp.   1   SC   596,   this 

Court   examined   whether   Section   69-A,   introduced   by 

the   Gujarat   Amendment   Act   8   of   1982   in   the   Bombay 

Land   Revenue   Code   which   dealt   with   vesting   mines, 

minerals   and   quarries   in   lands   held   by   persons 

including  Girasdars  and  Barkhalidars  in   the   State 

violated Article 300A of the Constitution.  The Court 

held   that   the   `property'   in   Article   300A   includes 

mines,  minerals and  quarries and  deprivation thereof 

having been made by authority of law was held to be 

valid and not violative of Article 300A.  

108.    Article 300A, when examined in the light of the 

circumstances   under   which   it   was   inserted,   would 

                                                                       88

reveal the following changes:

        1.    Right   to   acquire,   hold   and   dispose
              of   property   has   ceased   to   be   a
              fundamental          right         under         the
              Constitution of India.

        2.    Legislature   can   deprive   a   person   of
              his   property   only   by   authority   of
              law.

        3.    Right   to   acquire,   hold   and   dispose
              of   property   is   not   a   basic   feature
              of   the   Constitution,   but   only   a
              Constitutional right.

        4.    Right   to   Property,   since   no   more   a
              fundamental   right,   the   jurisdiction
              of   the   Supreme   Court   under   Article
              32   cannot   be   generally   invoked,
              aggrieved person has to approach the
              High Court under Article 226 of the
              Constitution.

109.    Arguments   have   been   advanced   before   us 

stating   that   the   concept   of   eminent   domain   and   its 

key   components   be   read   into   Article   300A   and   if   a 

statute   deprives   a   person   of   his   property 

unauthorizedly,   without   adequate   compensation,   then 

the statute is liable to be challenged as violative 

of   Articles   14,   19   and   21   and   on   the   principle   of 

rule   of   law,   which   is   the   basic   structure   of   our 

Constitution.     Further   it   was   also   contended   that 

the interpretation given by this Court on the scope 

                                                              89

of Article 31(1) and (2) in various judgments be not 

ignored   while   examining   the   meaning   and   content   of 

Article 300A. 

110.    Article  300A   proclaims  that   no  person   can  be 

deprived   of   his   property   save   by   authority   of   law, 

meaning thereby that a person cannot be deprived of 

his   property   merely   by   an   executive   fiat,   without 

any specific legal authority or without the support 

of   law   made   by   a   competent   legislature.     The 

expression   `Property'   in   Art.300A   confined   not   to 

land alone, it includes intangibles like copyrights 

and   other   intellectual   property   and   embraces   every 

possible interest recognised by law.   This Court in 

State   of   W.   B.   &   Others   v.   Vishnunarayan   &  

Associates (P) Ltd & Another (2002) 4 SCC 134, while 

examining   the   provisions   of   the   West   Bengal   Great 

Eastern   Hotel   (Acquisition   of   Undertaking)   Act, 

1980,   held  in   the  context   of  Article   300A  that   the 

State or executive offices cannot interfere with the 

right   of   others   unless   they   can   point   out   the 

specific   provisions   of   law   which   authorises   their 

rights.     Article   300A,   therefore,   protects   private 

                                                                    90

property against executive action.  But the question 

that   looms  large   is  as   to  what   extent  their   rights 

will   be   protected   when   they   are   sought   to   be 

illegally   deprived   of   their   properties   on   the 

strength   of   a   legislation.     Further,   it   was   also 

argued   that   the   twin   requirements   of   `public 

purpose'   and   `compensation'   in   case   of   deprivation 

of   property   are   inherent   and   essential   elements   or 

ingredients,   or   "inseparable   concomitants"   of   the 

power of eminent domain and, therefore, of entry 42, 

List   III,  as   well  and,   hence,  would   apply  when   the 

validity of a statute is in question.   On the other 

hand, it was the contention of the State that since 

the   Constitution   consciously   omitted   Article 

19(1)(f), Articles 31(1) and 31(2), the intention of 

the   Parliament   was   to   do   away   the   doctrine   of 

eminent   domain   which   highlights   the   principles   of 

public purpose and compensation.    

111.     Seervai         in         his         celebrated         book 

`Constitutional   Law   of   India'   (Edn.   IV),   spent   a 

whole   Chapter   XIV   on   the   44th   Amendment,   while 

dealing with Article 300A.  In paragraph 15.2 (pages 

                                                             91

1157-1158)   the   author   opined   that   confiscation   of 

property   of   innocent   people   for   the   benefit   of 

private persons is a kind of confiscation unknown to 

our law and whatever meaning the word "acquisition" 

may   have   does   not   cover   "confiscation"   for,   to 

confiscate   means   "to   appropriate   to   the   public 

treasury   (by   way   of   penalty)".     Consequently,   the 

law   taking   private   property   for   a   public   purpose 

without   compensation   would   fall   outside   Entry   42 

List III and cannot be supported by another Entry in 

List III.   Requirements of a public purpose and the 

payment   of   compensation   according   to   the   learned 

author be read into Entry 42 List III.   Further the 

learned   author   has   also   opined   that   the   repeal   of 

Article 19(1)(f) and 31(2) could have repercussions 

on   other   fundamental   rights   or   other   provisions 

which   are   to   be   regarded   as   part   of   the   basic 

structure   and   also   stated   that   notwithstanding   the 

repeal of Article 31(2), the word "compensation" or 

the   concept   thereof   is   still   retained   in   Article 

30(1A)   and   in   the   second  proviso  to   Article   31A(1) 

meaning   thereby   that   payment   of   compensation   is   a 

                                                              92

condition of legislative power in Entry 42 List III. 

112.    Learned senior counsel Shri T.R. Andhyarujina, 

also   referred   to   the   opinion   expressed   by   another 

learned   author   Prof.   P.K.   Tripathi,   in   his   article 

"Right   to   Property   after   44th   Amendment   -   Better 

Protected than Ever Before" (reported in AIR 1980 J 

pg.   49-52).    Learned   author   expressed   the   opinion 

and   the   right   of   the   individual   to   receive 

compensation   when   his   property   is   acquired   or 

requisitioned   by   the   State,   continues   to   be 

available in the form of an implied condition of the 

power   of   the   State   to   legislate   on   "acquisition   or 

requisition   of   property"   while   all   the   exceptions 

and   limitations   set   up   against   and   around   it   in 

Article   31,   31A   and   31B   have   disappeared.     Learned 

author   opined   that   Article   300A   will   require 

obviously,  that the  law must  be a  valid law  and no 

law   of   acquisition   or   requisitioning   can   be   valid 

unless   the   acquisition   or   requisition   is   for   a 

public purpose, unless there is provision in law for 

paying compensation, will continue to have a meaning 

given to it, by Bela Banerjee's case (supra).

                                                            93

113.    Learned   author,   Shri   S.B.   Sathe,   in   his 

article "Right to Property after the 44th Amendment" 

(AIR 1980 Journal 97),  to some extent, endorsed the 

view   of   Prof.   Tripathi   and   opined   that   the   44th 

amendment has increased the scope of judicial review 

in respect of right to property.  Learned author has 

stated although Article 300A says that no one shall 

be   deprived   of   his   property   save   by   authority   of 

law,   there   is   no   reason   to   expect   that   this 

provision   would   protect   private   property   only 

against   executive   action.     Learned   author   also 

expresses   the   wish   that   Article   21   may   provide 

viable check upon Article 300A. 

114.    Durga   Das   Basu   in   his   book   "Shorter 

Constitution   of   India",   13th  Edition,   dealt   with 

Article   300A   in   Chapter   IV   wherein   the   learned 

author   expressed   some   reservation   about   the   views 

expressed   by   Seervai,   as   well   as   Prof.   Tripathi 

Learned   author   expressed   the   view,   that   after   the 

44th amendment Act there is no express provision in 

the   Constitution   outside   the   two   cases   specified 

under   Article   30(1A)   and   the   second  proviso  to 

                                                             94

31(1A) requiring the State to pay compensation to an 

expropriated   owner.     Learned   author   also   expressed 

the opinion that no reliance could be placed on the 

legislative   Entry   42   of   List   III   so   as   to   claim 

compensation on the touchstone of fundamental rights 

since   the   entry   in   a   legislative   list   does   not 

confer   any   legislative   power   but   only   enumerates 

fields   of   legislation.       Learned   counsel   on   the 

either   side,   apart   from   other   contentions, 

highlighted the above views expressed by the learned 

authors to urge their respective contentions.  

115.    Principles of eminent domain, as such, is not 

seen   incorporated   in   Article   300A,   as   we   see,   in 

Article   30(1A),   as   well   as   in   the   2nd  proviso   to 

Article 31A(1) though we can infer those principles 

in   Article   300A.         Provision   for   payment   of 

compensation   has   been   specifically   incorporated   in 

Article   30(1A)   as   well   as   in   the   2nd  proviso   to 

Article   31A(1)   for   achieving   specific   objectives. 

Constitution's   44th   Amendment   Act,   1978   while 

omitting   Article   31   brought   in   a   substantive 

provision Clause (1A) to Article 30.     Resultantly, 

                                                              95

though no individual or even educational institution 

belonging   to   majority   community   shall   have   any 

fundamental   right   to   compensation   in   case   of 

compulsory acquisition of his property by the State, 

an   educational   institution   belonging   to   a   minority 

community shall have such fundamental right to claim 

compensation   in   case   State   enacts   a   law   providing 

for   compulsory   acquisition   of   any   property   of   an 

educational institution established and administered 

by   a   minority   community.     Further,   the   second 

proviso   to   Article   31A(1)   prohibits   the   Legislature 

from making a law which does not contain a provision 

for payment of compensation at a rate not less than 

the market value which follows that a law which does 

not contain such provision shall be invalid and the 

acquisition proceedings would be rendered void.   

116.    Looking   at   the   history   of   the   various 

constitutional   amendments,   judicial   pronouncements 

and   the   statement   of   objects   and   reasons   contained 

in   the   44th  Amendment   Bill   which   led   to   the   44th 

Amendment Act we have no doubt that the intention of 

the   Parliament   was   to   do   away   with   the   fundamental 

                                                                  96

right to acquire, hold and dispose of the property. 

But   the   question   is   whether   the   principles   of 

eminent   domain   are   completely   obliterated   when   a 

person is deprived of his property by the authority 

of law under Article 300A of the Constitution.   

PUBLIC PURPOSE

117.    Deprivation of property within the meaning of 

Art.300A,   generally   speaking,   must   take   place   for 

public   purpose   or   public   interest.     The   concept   of 

eminent   domain   which   applies   when   a   person   is 

deprived of his property postulates that the purpose 

must   be   primarily   public   and   not   primarily   of 

private   interest   and   merely   incidentally   beneficial 

to   the   public.   Any   law,   which   deprives   a   person   of 

his   private   property   for   private   interest,   will   be 

unlawful   and   unfair   and   undermines   the   rule   of   law 

and   can   be   subjected   to   judicial   review.     But   the 

question   as   to   whether   the   purpose   is   primarily 

public   or   private,   has   to   be   decided   by   the 

legislature,   which   of   course   should   be   made   known. 

The   concept       of       public       purpose       has       been 

                                                              97

given   fairly   expansive   meaning   which   has   to   be 

justified upon the purpose and object of statute and 

the   policy   of   the   legislation.     Public   purpose   is, 

therefore,   a   condition   precedent,   for   invoking 

Article 300A.

COMPENSATION

118.    We   have   found   that   the   requirement   of   public 

purpose   is   invariably   the   rule   for   depriving   a 

person   of   his   property,   violation   of   which   is 

amenable   to   judicial   review.   Let   us   now   examine 

whether   the   requirement   of   payment   of   compensation 

is   the   rule   after   the   deletion   of   Article   31(2). 

Payment   of   compensation   amount   is   a   constitutional 

requirement   under   Article   30(1A)   and   under   the   2nd 

proviso  to   Article   31A(1),   unlike   Article   300A. 

After   the   44th        Amendment   Act,   1978,   the 

constitutional   obligation   to   pay   compensation   to   a 

person   who   is   deprived   of   his   property   primarily 

depends   upon   the   terms   of   the   statute   and   the 

legislative   policy.   Article   300A,   however,   does   not 

prohibit   the   payment   of   just   compensation   when   a 

                                                                98

person   is     deprived   of   his   property,   but   the 

question   is   whether   a   person   is   entitled   to   get 

compensation,   as   a   matter   of   right,   in   the   absence 

of any stipulation in the statute, depriving him of 

his property.   

119.    Before   answering   those   questions,   let   us 

examine   whether   the   right   to   claim   compensation   on 

deprivation of one's property can be traced to Entry 

42 List III.   The 7th   Constitutional Amendment Act, 

1956  deleted Entry  33 List  I, Entry  36 List  II and 

reworded Entry 42 List III relating to "acquisition 

and requisitioning of property".   It was urged that 

the   above   words   be   read   with   the   requirements   of 

public   purpose   and   compensation.   Reference   was 

placed   on   the   following   judgment   of   this   Court   in 

support   of  that   contention.    In  State of Madras v.  

Gannon Dunkerley & Co. (Madras) Ltd.  (1959) SCR 379 

at   413),   this   Court   considered   Entry   48   List   II   of 

the Government of India Act, 1935, "tax on sales of 

goods",   in   accordance   with   the   established   legal 

sense   of   the   word   "sale",   which   had   acquired   a 

definite precise sense and held that the legislature 

                                                             99

must have intended the "sale", should be understood 

in that sense.   But we fail to see why we trace the 

meaning of a constitutional provision when the only 

safe and correct way of construing the statute is to 

apply the plain meaning of the words. Entry 42 List 

III   has   used   the   words   "acquisition"   and 

"requisitioning",   but   Article   300A   has   used   the 

expression   "deprivation",   though   the   word   deprived 

or   deprivation   takes   in   its   fold   "acquisition"   and 

"requisitioning",   the   initial   presumption   is   in 

favour   of   the   literal   meaning   since   the   Parliament 

is taken to mean as it says. 

120.    A Constitution Bench of this Court in Hoechst  

Pharmaceuticals   Ltd.'s   case  (supra),   held   that   the 

various   entries   in   List   III   are   not   "powers"   of 

Legislation   but   "fields"   of   Legislation.   Later,   a 

Constitution   Bench   of   this   Court   in  State   of   West  

Bengal & Another v. Kesoram Industries Ltd. & Others 

AIR   2005   SC   1646,   held   that   Article   245   of   the 

Constitution   is   the   fountain   source   of   legislative 

power. It provides that subject to the provisions of 

this Constitution, the Parliament may make laws for 

                                                                   100

the whole or any part of the territory of India, and 

the   Legislature   of   a   State   may   make   laws   for   the 

whole   or   any   part   of   the   State.   The   legislative 

field between the Parliament and the Legislature of 

any   State   is   divided   by   Article   246   of   the 

Constitution. Parliament has exclusive power to make 

laws   with   respect   to   any   of   the   matters   enumerated 

in List I in Seventh Schedule, called the Union List 

and subject to the said power of the Parliament, the 

Legislature of any State has power to make laws with 

respect   to   any   of   the   matters   enumerated   in   List 

III,   called   the   Concurrent   List.   Subject   to   the 

above,   the   Legislature   of   any   State   has   exclusive 

power   to   make   laws   with   respect   to   any   of   the 

matters   enumerated   in   List   II,   called   the   State 

List. Under Article 248, the exclusive power of the 

Parliament   to   make   laws   extends   to   any   matter   not 

enumerated in any Concurrent List or State List. 

121.    We   find   no   apparent   conflict   with   the   words 

used   in   Entry   42   List   III   so   as   to   infer   that   the 

payment   of   compensation   is   inbuilt   or   inherent 

either in the words "acquisition and requisitioning" 

                                                              101

under Entry 42 List III. Right to claim compensation 

is,   therefore,   cannot   be   read   into   the   legislative 

Entry   42   List   III.     Requirement   of   public   purpose, 

for   deprivation   of   a   person   of   his   property   under 

Article   300A,   is   a   pre-condition,   but   no 

compensation or nil compensation or its illusiveness 

has   to   be   justified   by   the   state   on   judicially 

justiciable   standards.   Measures   designed   to   achieve 

greater   social   justice,   may   call   for   lesser 

compensation   and   such   a   limitation   by   itself   will 

not   make   legislation   invalid   or   unconstitutional   or 

confiscatory.       In   other   words,   the   right   to   claim 

compensation   or   the   obligation   to   pay,   though   not 

expressly   included   in   Article   300A,   it   can   be 

inferred in that Article and it is for the State to 

justify   its   stand   on   justifiable   grounds   which   may 

depend   upon   the   legislative   policy,   object   and 

purpose of the statute and host of other factors.

122.    Article 300A would be equally violated if the 

provisions   of   law   authorizing   deprivation   of 

property   have   not   been   complied   with.     While 

enacting   Article   300A   Parliament   has   only   borrowed 

                                                              102

Article   31(1)   [the   "Rule   of   law"   doctrine]   and   not 

Article   31(2)   [which   had   embodied   the   doctrine   of 

Eminent Domain].   Article 300A enables the State to 

put   restrictions   on   the   right   to   property   by  law. 

That law has to be reasonable.   It must comply with 

other   provisions   of   the   Constitution.                The 

limitation or restriction should not be arbitrary or 

excessive   or   what   is   beyond   what     is   required   in 

public   interest.       The   limitation   or   restriction 

must   not   be   disproportionate   to   the   situation   or 

excessive.          The   legislation   providing   for 

deprivation   of   property   under   Article   300A   must   be 

"just,   fair   and   reasonable"   as   understood   in   terms 

of Articles 14, 19(1)(g), 26(b), 301, etc.   Thus in 

each case, courts will have to examine the scheme of 

the   impugned   Act,   its   object,   purpose   as   also   the 

question   whether   payment   of   nil   compensation   or 

nominal   compensation   would   make   the   impugned   law 

unjust,   unfair   or   unreasonable   in   terms   of   other 

provisions   of   the   Constitution   as   indicated   above. 

At   this   stage,   we   may   clarify   that   there   is   a 

difference   between   "no"   compensation   and   "nil" 

                                                              103

compensation.     A   law   seeking   to   acquire   private 

property   for   public   purpose   cannot   say   that   "no 

compensation   shall   be   paid".     However,   there   could 

be a law awarding "nil" compensation in cases where 

the   State   undertakes   to   discharge   the   liabilities 

charged   on   the   property   under   acquisition   and   onus 

is   on   the   government   to   establish   validity   of   such 

law.   In  the latter  case, the  court in  exercise of 

judicial review will test such a law keeping in mind 

the above parameters.

123.    Right   to   property   no   more   remains   an 

overarching   guarantee   in   our   Constitution,   then   is 

it   the   law,   that   such   a   legislation   enacted   under 

the authority of law as provided in Article 300A is 

immune   from   challenge   before   a   Constitutional   Court 

for violation of Articles 14, 21 or the overarching 

principle   of   Rule   of   Law,   a   basic   feature   of   our 

Constitution,   especially   when   such   a   right   is   not 

specifically   incorporated   in   Article   300A,   unlike 

Article 30(1A) and the 2nd proviso to Article 31A.  

                                                               104

124.    Article  31A   was  inserted   by  the   1st  Amendment 

Act,   1951   to   protect   the   abolition   of   Jamindari 

Abolition   Laws   and   also   the   other   types   of   social, 

welfare   and   regulatory   legislations   effecting 

private   property.       The   right   to   challenge   laws 

enacted   in   respect   of   subject   matter   enumerated 

under   Article   31A(1)(a)   to   (g)   on   the   ground   of 

violation   of   Article   14   was   also   constitutionally 

excluded.     Article   31B   read   with   Ninth   Schedule 

protects all laws even if they are violative of the 

fundamental   rights,   but   in  I.R.   Coelho's   case 

(supra),   a   Constitution   Bench   of   this   Court   held 

that   the   laws   added   to   the   Ninth   Schedule,   by 

violating   the   constitutional   amendments   after 

24.12.1973,   if   challenged,   will   be   decided   on   the 

touchstone   of   right   to   freedom   guaranteed   by   Part 

III   of   the   Constitution   and   with   reference   to   the 

basic   structure   doctrine,   which   includes   reference 

under   Article   21   read   with   Articles   14,   15   etc. 

Article   14   as   a   ground   would   also   be   available   to 

challenge a law if made in contravention of Article 

30(1)(A).

                                                              105

125.    Article 265 states that no tax shall be levied 

or   collected   except   by   authority   of   law,   then   the 

essential   characteristics   of   tax   is   that   it   is 

imposed   under   statute   power,   without   tax   payer's 

consent   and   the   payment   is   enforced   by   law.   A 

Constitution   Bench   of   this   Court   in  Kunnathat  

Thathunni   Moopil   Nair's   case  (supra)   held   that 

Sections 4, 5-A and 7 of the Travancore-Cochin Land 

Tax   Act   are   unconstitutional   as   being   violative   of 

Article   14   and   was   held   to   be   in   violation   of 

Article   19(1)(f).       Of   course,   this   decision   was 

rendered   when   the   right   to   property   was   a 

fundamental right.      Article   300A,   unlike   Articles 

31A(1)   and   31C,   has   not   made   the   legislation 

depriving   a   person   of   his   property   immune   from 

challenge   on   the   ground   of   violation   of   Article   14 

or Article 21 of the Constitution of India, but let 

us   first   examine   whether   Article   21   as   such   is 

available to challenge a statute providing for no or 

illusory compensation and, hence, expropriatory. 

126.    A  Constitution   Bench  of   this  Court   in  Ambika  

Prasad Mishra v. State of U.P. & Others (1980) 3 SCC 

                                                                  106

719,   while   examining   the   constitutional   validity   of 

Article   31A,   had   occasion   to   consider   the   scope   of 

Article   21   in   the   light   of   the   judgment   of   this 

Court in Maneka Gandhi's case (supra).  Dealing with 

the   contention   that   deprivation   of   property   amounts 

to   violation   of   the   right   guaranteed   under   Article 

21 of the Constitution of India, this Court held as 

follows:

        "12.     Proprietary          personality         was
        integral   to   personal   liberty   and   a
        mayhem inflicted on a man's property was
        an   amputation   of   his   personal   liberty.
        Therefore,   land   reform   law,   if
        unreasonable,   violates   Article   21   as
        expansively   construed   in  Maneka   Gandhi.
        The   dichotomy   between   personal   liberty,
        in   Article   21,   and   proprietary   status,
        in Articles 31 and 19 is plain, whatever
        philosophical justification or pragmatic
        realisation   it   may   possess   in   political
        or   juristic   theory.   Maybe,   a   penniless
        proletarian,   is   unfree   in   his   movements
        and   has   nothing   to   lose   except   his
        chains. But we are in another domain of
        constitutional jurisprudence. Of course,
        counsel's   resort   to   Article   21   is
        prompted   by   the   absence   of   mention   of
        Article   21   in   Article   31-A   and   the
        illusory hope of inflating  Maneka Gandhi
        to impart a healing touch to those whose
        property   is   taken   by   feigning   loss   of
        personal   liberty   when   the   State   takes
        only   property,  Maneka   Gandhi  is   no
        universal   nostrum   or   cure-all,   when   all
        other arguments fail!"

                                                             107

127.    The question of applicability of Article 21 to 

the   laws   protected   under   Article   31C   also   came   up 

for   consideration   before   this   Court   in  State   of  

Maharashtra & Another v. Basantibai Mohanlal Khetan  

& Others  (1986) 2 SCC 516, wherein this Court held 

that   Article   21   essentially   deals   with   personal 

liberty  and has  little to  do with  the right  to own 

property as such. Of course, the Court in that case 

was   not   concerned   with   the   question   whether   the 

deprivation of property would lead to deprivation of 

life or liberty or livelihood, but was dealing with 

a case, where land was acquired for improving living 

conditions   of   a   large   number   of   people.   The   Court 

held that the Land Ceiling Laws, laws providing for 

acquisition   of   land   for   providing   housing 

accommodation,   laws   imposing   ceiling   on   urban 

property   etc.   cannot   be   struck   down   by   invoking 

Article   21   of   the   Constitution.     This   Court   in 

Jilubhai   Nanbhai   Khachar's   case  (supra)   took   the 

view   that   the   principle   of   unfairness   of   procedure 

attracting   Article   21   does   not   apply   to   the 

                                                             108

acquisition or deprivation of property under Article 

300A.

128.       Acquisition of property for a public purpose 

may meet with lot of contingencies, like deprivation 

of   livelihood,   leading   to   violation   of   Art.21,   but 

that per se is not a ground to strike down a statute 

or its provisions.   But at the same time, is it the 

law that a Constitutional Court is powerless when it 

confronts   with   a   situation   where   a   person   is 

deprived   of   his   property,   by   law,   for   a   private 

purpose   with   or   without   providing   compensation? 

For   example,   a   political   party   in   power   with   a 

massive mandate enact a law to acquire the property 

of the political party in opposition not for public 

purpose,   with   or   without   compensation,   is   it   the 

law, that such a statute is immune from challenge in 

a   Constitutional   Court?     Can   such   a   challenge   be 

rejected on the ground that statute does not violate 

the   Fundamental   Rights   (due   to   deletion   of 

Art.19(1)(f)) and that the legislation does not lack 

legislative   competence?         In   such   a   situation,   is 

non-availability of a third ground as propounded in 

                                                                           109

State   of   A.P.   &   Others   v.   Mcdowell   &   Co.   &   Others 

(1996) 3 SCC 709, is an answer?   Even in  Mcdowell's 

case  (supra),  it   was   pointed   out   some   other 

constitutional   infirmity   may   be   sufficient   to 

invalidate   the   statute.    A   three   judges   Bench   of 

this   Court   in  Mcdowell  &  Co.  &  Others  case  (supra) 

held as follows:

        "43.   .......The   power   of   Parliament   or   for
        that   matter,   the   State   Legislature   is
        restricted   in   two   ways.   A   law   made   by
        Parliament   or   the   legislature   can   be
        struck down by courts on two grounds and
        two   grounds   alone,   viz.,   (1)   lack   of
        legislative competence and (2) violation
        of   any   of   the   fundamental   rights
        guaranteed   in   Part   III   of   the
        Constitution           or         of         any         other
        constitutional   provision.   There   is   no
        third   ground.........   No   enactment   can   be
        struck   down   by   just   saying   that   it   is
        arbitrary or unreasonable. Some or other
        constitutional infirmity has to be found
        before invalidating an Act. An enactment
        cannot be struck down on the ground that
        court   thinks   it   unjustified.   Parliament
        and   the   legislatures,   composed   as   they
        are   of   the   representatives   of   the
        people,   are   supposed   to   know   and   be
        aware   of   the   needs   of   the   people   and
        what is good and bad for them. The court
        cannot   sit   in   judgment   over   their
        wisdom.........."

                                                                            110

129.      A two judges Bench of this Court in  Union of  

India & Another v. G. Ganayutham  (1997) 7 SCC 463, 

after referring to Mcdowell's case (supra) stated as 

under:

            "that   a   statute   can   be   struck   down   if
          the   restrictions   imposed   by   it   are
          disproportionate   or   excessive   having
          regard to the purpose of the statute and
          that the Court can go into the question
          whether   there   is   a   proper   balancing   of
          the         fundamental         right         and         the
          restriction imposed, is well settled." 

130.      Plea   of   unreasonableness,   arbitrariness, 

proportionality,   etc.   always   raises   an   element   of 

subjectivity   on   which   a   court   cannot   strike   down   a 

statute   or   a   statutory   provision,   especially   when 

the   right   to   property   is   no   more   a   fundamental 

right.  Otherwise the court will be substituting its 

wisdom   to   that   of   the   legislature,   which   is 

impermissible in our constitutional democracy.   

131.      In  Dr.   Subramanian   Swamy   v.   Director,   CBI   &  

Others (2005) 2 SCC 317, the validity of Section 6-A 

of the Delhi Special Police Establishment Act, 1946, 

was   questioned   as   violative   of   Article   14   of   the 

Constitution. This Court after referring to several 

                                                            111

decisions   of   this   Court   including  Mcdowell's   case 

(supra),  Khoday Distilleries Ltd. & Others v. State  

of Karnataka & Others (1996) 10 SCC 304, Ajay Hasia 

& Others v. Khalid Mujib Sehravardi & Others  (1981) 

1  SCC 722,  Mardia Chemicals Ltd. & Others v. Union  

of India & Others (2004) 4 SCC 311, Malpe Vishwanath 

Achraya  & Others  v. State  of Maharashtra  & Another 

(1998)   2  SCC   1  etc.   felt  that   the  question   whether 

arbitrariness   and   unreasonableness   or   manifest 

arbitrariness   and   unreasonableness   being   facets   of 

Article 14 of the Constitution are available or not 

as grounds to invalidate a legislation, is a matter 

requiring   examination   by   a   larger   Bench   and 

accordingly,   referred   the   matter   for   consideration 

by a Larger Bench.   

132.    Later, it is pertinent to note that a   five-

judges Bench of this Court in  Ashok Kumar Thakur v.  

Union   of   India   &   Others  (2008)   6   SCC   1   while 

examining   the   validity   of   the   Central   Educational 

Institutions   (Reservation   in   Admission)   Act,   2006 

held as follows:   

                                                                     112

       219.  A   legislation   passed   by   Parliament
       can         be         challenged         only         on
       constitutionally   recognised   grounds.
       Ordinarily,   grounds   of   attack   of   a
       legislation   is   whether   the   legislature
       has   legislative   competence   or   whether
       the   legislation   is  ultra   vires  the
       provisions   of   the   Constitution.   If   any
       of   the   provisions   of   the   legislation
       violates fundamental rights or any other
       provisions of the Constitution, it could
       certainly be a valid ground to set aside
       the legislation by invoking the power of
       judicial   review.   A   legislation   could
       also be challenged as unreasonable if it
       violates   the   principles   of   equality
       adumbrated   in   our   Constitution   or   it
       unreasonably   restricts   the   fundamental
       rights   under   Article   19   of   the
       Constitution.   A   legislation   cannot   be
       challenged   simply   on   the   ground   of
       unreasonableness   because   that   by   itself
       does   not   constitute   a   ground.   The
       validity   of   a   constitutional   amendment
       and   the   validity   of   plenary   legislation
       have   to   be   decided   purely   as   questions
       of constitutional law........."

Court   also   generally   expressed   the   view   that   the 

doctrines   of   "strict   scrutiny",   "compelling 

evidence" and "suspect legislation" followed by the 

U.S.   Courts   have   no   application   to   the   Indian 

Constitutional Law.

                                                                   113

133.     We have already found, on facts as well as on 

law, that the impugned Act has got the assent of the 

President   as   required   under   the   proviso   to   Article 

31A(1),   hence,   immune   from   challenge   on   the   ground 

of   arbitrariness,   unreasonableness   under   Article   14 

of the Constitution of India.

134.     Statutes   are   many   which   though   deprives   a 

person   of   his   property,   have   the   protection   of 

Article   30(1A),   Article   31A,   31B,   31C   and   hence 

immune   from   challenge   under   Article   19   or   Article 

14.       On   deletion   of   Article   19(1(f)   the   available 

grounds   of   challenge   are   Article   14,   the   basic 

structure and the rule of law, apart from the ground 

of legislative competence.       In  I.R. Coelho's case 

(supra),   basic   structure   was   defined   in   terms   of 

fundamental   rights   as   reflected   under   Articles   14, 

15,   19,   20,   21   and   32.         In   that   case   the   court 

held   that   statutes   mentioned   in   the   IXth   Schedule 

are immune from challenge on the ground of violation 

of fundamental rights, but if such laws violate the 

basic   structure,   they   no   longer   enjoy   the   immunity 

offered, by the IXth Schedule.   

                                                                114

135.    The Acquisition Act, it may be noted, has not 

been included in the IXth Schedule but since the Act 

is   protected   by   Article   31A,   it   is   immune   from   the 

challenge on the ground of violation of Article 14, 

but in a given case, if a statute violates the rule 

of   law   or   the   basic   structure   of   the   Constitution, 

is it the law that it is immune from challenge under 

Article   32   and   Article   226   of   the   Constitution   of 

India?  

136.    Rule of law as a concept finds no place in our 

Constitution, but has been characterized as a basic 

feature   of   our   Constitution   which   cannot   be 

abrogated or destroyed even by the Parliament and in 

fact   binds   the   Parliament.     In  Kesavanda   Bharati's 

case   (supra),   this   Court   enunciated   rule   of   law   as 

one of the most important aspects of the doctrine of 

basic   structure.   Rule   of   law   affirms   parliament's 

supremacy   while   at   the   same   time   denying   it 

sovereignty over the Constitution. 

137.    Rule   of   law   can   be   traced   back   to   Aristotle 

and   has   been   championed   by   Roman   jurists;   medieval 

                                                                115

natural   law   thinkers;   Enlightenment   philosophers 

such   as   Hobbes,   Locke,   Rousseau,   Montesquieu,   Dicey 

etc.       Rule   of   law   has   also   been   accepted   as   the 

basic principle of Canadian Constitution order. Rule 

of   law   has   been   considered   to   be   as   an   implied 

limitation   on   Parliament's   powers   to   legislate.   In 

Reference   Re   Manitoba   Language   Rights  (1985)   1   SCR 

721,   the   Supreme   Court   of   Canada   described   the 

constitutional status of the rule of law as follows:

             "The  Constitution   Act,   1982  ...   is
        explicit   recognition   that   "the   rule   of
        law   is   a   fundamental   postulate   of   our
        constitutional   structure."   The   rule   of
        law   has   always   been   understood   as   the
        very   basis   of   the   English   Constitution
        characterising             the           political
        institutions of England from the time of
        the   Norman   Conquest.   It   becomes   a
        postulate   of   our   own   constitutional
        order   by   way   of   the   preamble   to   the
        Constitution   Act,   1982  and   its   implicit
        inclusion   in   the   preamble   to   the
        Constitution   Act,   1867  by   virtue   of   the
        words   "with   a   Constitution   similar   in
        principle   to   that   of   the   United
        Kingdom." 

        Additional   to   the   inclusion   of   the   rule
        of   law   in   the   preamble   of   the
        Constitution   Acts  of   1867   and   1982,   the
        principle   is   clearly   implicit   in   the
        very   nature   of   a   Constitution.   The
        Constitution,   as   the   Supreme   Law,   must
        be understood as a purposive ordering of 

                                                                   116

        social   relations   providing   a   basis   upon
        which   an   actual   order   of   positive   laws
        can   be   brought   into   existence.   The
        founders   of   this   nation   must   have
        intended, as one of the basic principles
        of   nation   building,   that   Canada   be   a
        society   of   legal   order   and   normative
        structure:   one   governed   by   the   rule   of
        law.  While   this   is   not   set   out   in   a
        specific provision, the principle of the
        rule   of   law   is   clearly   a   principle   of
        our Constitution."

138.    In  Re:   Resolution   to   Amend   the   Constitution 

(1981)   1   SCR   753,   the   Supreme   Court   of   Canada 

utilized   the   principle   of   rule   of   law   to   uphold 

legislation,   rather   than   to   strike   it   down.   The 

Court   held   that   the   implied   principles   of   the 

Constitution   are   limits   on   the   sovereignty   of 

Parliament   and   the   provincial   legislatures.   The 

Court   reaffirmed   this   conclusion   later   in  OPSEU   v.  

Ontario   (A.G.)  (1987)   2   SCR   2.   This   was   a   case 

involving   a   challenge   to   Ontario   legislation 

restricting   the   political   activities   of   civil 

servants   in   Ontario.   Although   the   Court   upheld   the 

legislation,   Beetz.   J   described   the   implied 

limitations in the following terms:  

              "There   is   no   doubt   in   my   mind   that
        the basic structure of our Constitution, 

                                                                 117

        as   established   by   the  Constitution   Act,
        1867,   contemplates   the   existence   of
        certain         political          institutions,
        including   freely   elected   legislative
        bodies   at   the   federal   and   provincial
        levels.   In   the   words   of   Duff   C.J.   in
        Reference   re   Alberta   Statutes          "such
        institutions   derive   their   efficacy   from
        the   free   public   discussion   of   affairs"
        and,   in   those   of   Abbott   J.   in  Switzman
        v.  Elbling  ...   neither   a   provincial
        legislature   nor   Parliament   itself   can
        "abrogate   this   right   of   discussion   and
        debate." Speaking more generally, I hold
        that   neither   Parliament   nor   the
        provincial   legislatures   may   enact
        legislation the effect of which would be
        to   substantially   interfere   with   the
        operation   of   this   basic   constitutional
        structure."

139.    The   Canadian   Constitution   and   Courts   have, 

therefore, considered the rule of law as one of the 

"basic   structural   imperatives"   of   the   Constitution. 

Courts   in   Canada   have   exclusively   rejected   the 

notion   that   only   "provisions"   of   the   Constitution 

can   be   used   to   strike   down   legislation   and   comes 

down squarely in favour of the proposition that the 

rule   of   law   binds   legislatures   as   well   as 

governments. 

140.    Rule   of   law   as   a   principle   contains   no 

explicit   substantive   component   like   eminent   domain 

                                                              118

but   has   many   shades   and   colours.     Violation   of 

principle   of   natural   justice   may   undermine   rule   of 

law so also at times arbitrariness, proportionality, 

unreasonableness   etc.,   but   such   violations   may   not 

undermine rule of law so as to invalidate a statute. 

Violation   must   be   of   such   a   serious   nature   which 

undermines   the   very   basic   structure   of   our 

Constitution   and   our   democratic   principles.       But 

once the Court finds, a Statute, undermines the rule 

of   law   which   has   the   status   of   a   constitutional 

principle   like   the   basic   structure,   the   above 

grounds are also available and not  vice versa.   Any 

law which, in the opinion of the Court, is not just, 

fair and reasonable, is not a ground to strike down 

a   Statute   because   such   an   approach   would   always   be 

subjective,   not   the   will   of   the   people,   because 

there   is   always   a   presumption   of   constitutionality 

for a statute.   

141.    Rule   of   law   as   a   principle,   it   may   be 

mentioned, is not an absolute means of achieving the 

equality,   human   rights,   justice,   freedom   and   even 

democracy and it all depends upon the nature of the 

                                                            119

legislation   and   the   seriousness   of   the   violation. 

Rule   of   law   as   an   overarching   principle   can   be 

applied   by   the   constitutional   courts,   in   rarest   of 

rare   cases,   in   situations,   we   have   referred   to 

earlier   and   can   undo   laws   which   are   tyrannical, 

violate the basic structure of our Constitution, and 

our cherished norms of law and justice.   One of the 

fundamental   principles   of   a   democratic   society 

inherent   in   all   the   provisions   of   the   Constitution 

is that any interference with the peaceful enjoyment 

of possession should be lawful. 

142.     Let the message, therefore, be loud and clear, 

that rule of law exists in this country even when we 

interpret   a   statute,   which   has   the   blessings   of 

Article   300A.     Deprivation   of   property   may   also 

cause   serious   concern   in   the   area   of   foreign 

investment,   especially   in   the   context   of 

International   Law   and   international   investment 

agreements.     Whenever, a foreign investor operates 

within the territory of a host country the investor 

and   its   properties   are   subject   to   the   legislative 

control   of   the   host   country,   along   with   the 

                                                               120

international treaties or agreements.   Even, if the 

foreign investor has no fundamental right, let them 

know, that the rule of law prevails in this country. 

143.    We,   therefore,   answer   the   reference   as 

follows: 

(a)     Section   110   of   the   Land   Reforms   Act   and   the 

notification dated 8.3.94 are valid, and there is no 

excessive   delegation   of   legislative   power   on   the 

State Government.

(b)     Non-laying of the notification dt.8.3.94 under 

Section 140 of the Land Reforms Act before the State 

Legislature   is   a   curable   defect   and   it   will   not 

affect   the   validity   of   the   notification   or   action 

taken thereunder.

(c)     The   Acquisition   Act   is   protected   by   Article 

31A   of   the   Constitution   after   having   obtained   the 

assent   of   the   President   and   hence   immune   from 

challenge   under   Article   14   or   19   of   the 

Constitution.

                                                                121

(d)     There is no repugnancy between the provisions 

of the Land Acquisition Act, 1894 and the Karnataka 

Land   Reforms   Act,   1961,   and   hence   no   assent   of   the 

President   is   warranted   under   Article   254(2)   of   the 

Constitution.    

(e)     Public   purpose   is   a   pre-condition   for 

deprivation   of   a   person   from   his   property   under 

Article 300A and the right to claim compensation is 

also   inbuilt   in   that   Article   and   when   a   person   is 

deprived   of   his   property   the   State   has   to   justify 

both   the   grounds   which   may   depend   on   scheme   of   the 

statute,   legislative   policy,   object   and   purpose   of 

the legislature and other related factors. 

(f)     Statute,   depriving   a   person   of   his   property 

is,   therefore,   amenable   to   judicial   review   on 

grounds hereinbefore discussed. 144.              We 

accordingly   dismiss   all   the   appeals   and   direct   the 

notified   authority   under   the   Acquisition   Act   to 

disburse the amount   of    compensation   fixed by 

the   Act   to   the   legitimate   claimants   in   accordance 

with law, which will depend upon the outcome of the 

                                                                122

pending litigations between the parties.     Further, 

we   also   order   that   the   land   acquired   be   utilized 

only   for   the   purpose   for   which   it   was   acquired.   In 

the facts and circumstances of the case, there will 

be no order as to costs.

                                   ......................CJI
                                 (S.H. Kapadia)

                                    ......................J.
                                 (Mukundakam Sharma)

                                    ......................J.
                                 (K.S. Radhakrishnan)

                                    ......................J.
                                 (Swatanter Kumar)

                                    ......................J.
                                   (Anil R. Dave)
New Delhi,
August 09, 2011

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