MAHARAO SAHIB SRI BHIM SINGHJI ETC. ETC v. UNION OF INDIA AND ORS. ETC. ETC

Citation: [1985] SUPP. 1 S.C.R. 862

Court: Supreme Court of India

Bench: Y.V. CHANDRACHUD, P.N. BHAGWATI, V.R. KRISHNA IYER, V.D. TULZAPURKAR, A.P. SEN

Case summary

31 culminating in the present provision which provides for the payment of an "amount" disclose a determined approach by parliament in exercise of its constituent power to ensure that full compensation or even fair compensation cannot be claimed as a fundamental right by the...

Judgment text

MAHARAO SAHIB SRI BHIM SINGHJI ETC. ETC v. UNION OF INDIA AND ORS. ETC. ETC. November 13, 1980/July 1, 1985 [Y. V. CHANDRACHUD C. J. , P. N. BEIAGWATI, V. R. KRISEINA IYER, V,0, TULZAPURKAR AND A. P. SEN, JJ. ) A. Urban Land (Celling and Regulation) Act, 1976 (Act XXX/l/ of1976) -Whether constitutionally vai/d •is-a-vis Articles 39(b) and (c) of tht Constitution. B. Urban Land (Celling and Regulation) Act, 1976 (Act XXX/l/ of 1976), 1ection 2(g),-Artificlal definitio11 offamily in section 2(/), whether offends against Article 14 ofthe Constltut ion. C. Urban Land (Ceiling and Regulation) Act, 1976 (Act XXXJJ/ of 1976), section 11(6) ralidity of-~Vhether the maximum limit of the amount of compen· sation payablefixed at Rupees two lakhs is illusory and confiscatory and therefore. violative ofArticle 14 and 31(2) of the Constitution, as amended by the Twentyfiflh Amendment Act, 1971-Ejft'Cl of the Amendment • D. Urban Land (Ceiling and Regulation).

Act, 1976 (Act XXX/// of 1976), section 23 validity of-The provision subserves the objectives ofArticles 39(b) and (c) and hence protected by Articles 31 Band C, but the governing test of disposal ofexcess lands being ''social good'', any disposal in any particular case or cases which does not subserve that purpos~ will be invalid. r E. Urban I. and (Ceiling and Regulatian) Act, 1976 section 27(1), validity of- Whtther offends Articles 14 and 19(1) (/). P. Interpretation of statutes-Rule of reading down the provision. Perml8'ibillty as a part ofthe judicial proce&S. G. Constitution of India, 1950 Articles 31 and 300. A-Baslc structure of the Constitution, thereby applicability of-Whether right to property is a part of the basic structure ofthe Constitution-State's power of "eminent domain", and conditions precedent to exercise ofthat power, t! Xplained. H. Constitution ofIndia, 1950-Part IV-Directi•e Principles of State Palley, character and cognisabllity by the Courts.

MSS, BHIM SINGH P. UNION I. Interpretation of Constitution and tht approach to be adopted, explained. A. J. lnterpretali•n ofstatulls-External and Internal Aid•,. ,. •f LIC. W11r4. s and Phrase1-Conctpt and meaning of"PMbli1 Purpose. '' The Urban Land (Ceiling and Regulation) Act, 1976 (Act XXXIll or n 1976) it in force in 17 States and all tho Union Territories in the country. · It seet:s to impose a ceiling on vacant lands in urban agglomerations having a population of two lakhs or more and for that purpose classifies such urban agglomerations in various cities and towns in all the States and Union Territories into four categoric• and fixes the ccilina limit for each aucb cateaory. The primary object and purpose of tho Act, as its long title and tho Preamble show, is to provide for the imposition ofa ceiling on vacant land in •rban agglomerations.

for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land for matters connected there with, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bring about an equitable distribution of land in urban agglomerations to subsl! rve the common good, presumably in furtherance of the Directive Principles of State Policy contained in Article 39(c) and (b) respectively. The enactment has also been put in the Ninth Schedule as Item 132 by the Constitution (Fortieth Amendment) Act, 1976; in other words, the enactment enjoys the benefit of protective umbrella of both the articles, Article 31-B and 31-C as it stood prior to its amendment by the Constitution (Forty-second Amendment) Act, 1976.

By these writ octltions the petitio:iers, w:10 are holders of vacant land in the urban agglomerations in various States, are seeking to challenge the vires of some of the salient provisions of the Urban Land (CeHin1r and Regulation) Act, 1976 (XXXIII of 1976) and since, according to them, some of tho impugned provisions are pivotal and non-severable, having an impact on its entire scheme, the whole Act is liable to be struck down as being in-va1id and unconstitutional. The petitioners have, therefore, prayed for an order quashing notices issued to them by the concerned competent authorities under the Act and a mandamus directing the respondents not to implement the provisions thereof against them. Dismissing the petitions and upholding the constitutional validity save and except section 27(1) by a majority of 4:1 (A. P. Son, J. partially dissenting on tho validity of sub-sections (I), (2), (3) and tho opening words of sub-section (4) of aection 23), tho Court.

If HELD: Per majority: (Y. V. Chandrachud, C. J. , P. N. Bhapati, V. R, Krishna I7cr a. nd an. Sen JJ; V. D, Tulzapurkar, J. dissentins)· J. The Urban Land (Ceiling and Regulation) Act, 1976 is constitutional· ly valid save and ex. cept section 27(1) in so far as it imposes a restriction on transfer of any urban of urbanisable land with a building or of a portion of such building, which is within the ceiling area. [871 E-F] Per Chandrachud, C. J. and P. N. Bhagwati, J. I. The Urban Land (Ceiling and Regulation) Act, 1976 is valid. The vice from which a pro·dsion here or a provision there of the impugned Act may be shown to suffer will not justify the conclusion that the Act is not intended to or does not, by its scheme; in fact implement or achieve the purposes of clauses (b) and (c) of Article 39 or the Constitution. [8 ,g C-D] 2. The definition of "family" jn section, 2(f) of the Act, which in relation to a person means the individual, the wife or husband, as the case may he.

of such individual and their unmarried minor children, will not necessarily lead to concentration of wealth in the hands of a few persons or families. Such is eot the intendment, nor the drive, nor the direct and inevitable consequences of the definition of "family", [87d D-E] 3. Section 11(6) of the Urban Land (Ceiling and Regulation) Act, 1976 which provides that the amount payable under sub-section (1) or sub-section (5) of section 11 shall, in no cast', exceed two Iakhs of rupees is valid. The amount thus payable, is not illusory and the provision is not confiscatory. Rupees iwo lakhs is not like a farthing even if the excess land may be a fortune. [879 F] 4. Section 23 of the Urf'>an Land (Ceiling and Regulation) Act is valid and does not suffer from any constitutional infirn'ity. Sub-fection (~)of section 23 is the prepondering provision governing the disposal of excess vacant land acquired under the Act.

Though it is "subject to the provisions of sub-section (l), (2), and (3)", the provisions of sub-section (1) are enabling and not compulsive and those of sub-sections (2) and {3) are incidental to the provisions of sub-section (1). The disposal of excess vacant lands must therefore be made strictly in accordance with the mandate of sub-section (4) of section 23, subject to this, that in a given case such land may be allotted to any person, for any purpose relatiug to, or in connection with any ''industry" or the other purposes mentioned in sub~section (1). provided that by such allotment, common good will be subserved. The governing test of disposal of excess land being "social good'', any disposal in any pasticular case or cases which docs not subserve that purpose will be liable, to be struck down as being contrary to the scheme and intendment of the Act. The preamble to the Act ought to resolve interpretational doubts arising out of the defective drafting of section 23.

"Common Good", being the writing on the wall, any disposal which does not serve that purpose will be outside the scope of the Act and, therefore, lacking, lacking in competence in diverse senses. Private property cannot under the Constitution be acquired or allotted for private purposes though an enabling power like that contained in sub-section (1) of section 23 MSS, BHIM SINGH 1, UNION 865 may be exercised in cases where the common good dictates the distribution of excess vacant land to an industry, as defined in clause (b) of the Explanation to Section 23. [. l78 G-H;. 879 A-El 5. Sub-section (J) of section 27 of the Act is invalid insofar as it imposes a restriction on transfer of any urbanisable land with a building or a portion only of such building, which is within the ceiling area. Such property will therefore be transferable without the constraints mentioned in sub-section (1) of Section 27 of the Act.

Nothing usefully can be added to the Judgment delivered by Krishna Iyer, J and the reasons given therein are fully agreed to. [819 G-H] Per Krishna Iyer, J. (Concurring) 1. The legislation on the Ceiling and Regulation of urban lands is constitutionally valid, though section 27(1) is partially invalid. The legislation is obviously a measure for inhibiting concentration of urban lands in the hands of a few persons and for equitable dis~ribution of such land to subserve the common good. Article 39(b) and (c) of the Constitution are directly attracted and the fullest exploitation of the material resources of the community undoubtedly requires distribution of urban land geared to the common good. [880 E-F] 2, Family as defined in section 2(f) of the Act accords with the current life style in urban conditions and is neither artificial nor arbitrary nor violative of Article 14.

And the courts, in these days of family planning and self-reliance of the adult cannot condemn as arbitrary, by a process ofjudicial ratiocination, the legislative provision that a family shall be defined as the parents plus their minor children. [886 B-Cj 3. 1 The payment, fixed under section 11(6) of the Act of a sum of Rs. two lakhs whatever be the total value of the property in the market is not so fictitious and flimsy as to be a farthing. There are no absolutes in law as in life and the compulsions of social realities must unquestionably enter the judicial verdict. [881 G-H] 3. 2 The various amendments to Article 31 culminating in the present provision which provides for the payment of the "amount" disc.

lose a determined approach by Parliament in exercise of its constituent power to ensure that full compensation or even fair compensation cannot be claimed as fundamental right by the private owner and that short of paying a "farthing for a fortune'' the question of compensation is out of bounds for the court to investigate. ['81 r-F] 3. 3 Having regard to the human condition of a lara:e percentage of pavement dwellers and slum dwellers in our urban areas and proletarian miscR rabies in our rural vastnesses, any one who gets Rs. 2 lakhs can well be regarded as having got something substantial to go by. In a society where half of humanity lives below the breadline, to regard Rs. 2 lakhs as a farthing is farewell to poignant facts and difficult to accept. Therefore, section 11(6) is jnvulnerablc and does not contravene Article 31 (2) the payment stipulated is re~sonable, neither a mere mockery or discriminatory. (884 E-Fj 4.

The whole story of the legislation, the long gestation Qf pre-legislative consideration, the brooJing presence of Article 39(b) and (c) and the emphasis in Section 23(4) on common good as the guiding: factor for distribution point to public purpose. national development and social justice as the cornerstone of of the policy of distribution. Any transgression of Article 39(b) and (c) is beyond the scope of Section 23(1) and disposal of land thereunder must sub. serve the common good and not the reverse. This limitation on the wide words ofsection 23(1) is a matter of semantics and reading down the judicial process. To sustain a Jaw by interpretation is the rule. To be trigger-happy in shootine at sight every suspect law is judicial legicide. Courts can and must interpret words and road their meanings so that public good is promoted and power mlsuse is interdicted. The wide definition of ''industry" or the use of general words like ••any person.. and ..

any purpose" cannot free the whole clause from the inarticulate major premise that only a public purpose to subserve the com· mon good and filing the bill of Article 39;. b) and (c) will be permissible. The_ touchstone is public purpose, community good and like criteria. Jf the power is used for favouring a private industrialist or for nepotistic reasons the oblique act wiU meet with its judicial Waterloo. To presume as probable graft, nepo. tism, patronage, political clout, friendly pressure or corrupt purpase is imper· missible. The Jaw will be food, lhc power will be inlpeccable but if lhe parti· cular act of allotment is ma/a fide or beyound the statutory and constitutional paramete"rs such exercise will be a casualty in court and will be struck down. The poWer ofjudicial review to strike at excess or ma/a fel11 is always there· for vigilant exercise. Hence, even the crude drafting of section 23(4) by the unwanted ••subject to••will not whittle down the power, why the obligation.

to distribute vacant land, no1 according to personal, political or official Janey but •trictly geared to the eood set down in Article 39(b) and (c). . (887 D·H; 888A; 8890) S. Se~ion 27(1) of the Act, is. invalid, partially. [880 AJ 6. 1 The. question of 1:-asic structure being breached cannot arise when examining the Yires of an ordinary legislation as distinguished from a Constitu· . F tional amendment. Nor, indeed, can every breach of equality spell disaster as a lethal violation of the basic structure. Peripheral inequality is inevitable when large-scale equilisation processes aro put into action. What is a betrayal of the basic feature is not a mere violalion of Article 14 but a shocking, onconscienablo or unscrupulous travesty of the quintessence of equal justice. If a legislation docs go that far it shakes' 1he democratic foundation and must suffer the death penalty.

· But to permit the Bharti ghost to haunt the corridors of the court brandishing fatal writs for evefy every feature of inequality is judicial paralysation of parliamentary function. Nor can the constitutional fascination for the basic structure doctrine be made a: Trojan horse to penetrate the entire legislative camp fighting for a new social order and to overpower the battle for abolition or basic poverty by the "basic structure·• missile. . (889 E·H; 890AJ IJ 6 2 Rjght to property is not p. lrt of the basic structure even hiS right to develop is not the basic structure of India forever. The whole adventure ofthe- CQn~titq~~Qll f' t~ re~ove povcrtr and in that pro~c;:ss r~~9v~ ~. p~ntration of MSS. BRIM SINGH v. UNIO? I 867 property. not for a return. but for almost free, if the justice of the situation commended itself to the legislation to take it that way. Kes••anda Bharall v. State ofKera/a [1972] Supp. SCR p. I referred to. 6.

3 Part IV which seeks to build a Social Justice Society, is basic to our constitutional order. The Directive Principles of State Policy being paramount in character and fundamental in the country's governance, distributive justice, envisaged in Ariiclc 39(b) and (c) has a key role in the developmental process ll or tho Socialist Republic that India has adopted. [888 C; 880 G] Per Tulzapurkar, J. (dissenting) 1. The urban Land (Ceiling and Regulation) Act, 1976, though purporting to do so, does not. in fact, further the directive principles in· Aiti:le 39(b) and (c). The measure was, undoubtedly, taken in hand with a view to achieve the unexceptional objectives underlying ArticJe 39lb) and (c) and suppo:tcd by several State Legislatures as per their resolutions passed under · Article 252(1) with a laudable object namely, to clothe the Parliament with legislative competence to enact a law for the imposition of celiog on urban immovable property for the country as a whole.

but the enacted provisions misfire a'. nd produce the opposite results and also damage or destroy the essentia't features or basic structure of . the C. Onstitution. Section 2(f) in relation to prescription of ceiling area permits unwarranted and unjustified concCntration of wealth instead of preventing the same and is in teeth of the o! :-jective under Article 39(c): Similarly section 23 produces results contrary to the objectives under Article 39(b) Therefore, the impugned Act is outside the protective umbrella of Article 31-C. Further, sections 2(f), 23 and 11(6) which puts maximum limit on the quantum of the amount payable in respect or excess ,E vacant land acquired . from a holder irrespective of the ex.

tent of area held by him-these three prnvisions flagrantly violate those aspects of Articles 14 and 31 which constitute the essential and basic features of the Constitution and hence the protective umbrella of Article 31-B is not available to the impugned ·Act inasmuch as the Fortieth Constitution Amendment Act, 1976 to the extent to which it inserts the Act in the Ninth Schedule is beyond the consti- :F tuent power of the Parliament. Section 21 which authorises compulsory acquisition of property for private purposes is in breach of the doctrine of eminent domain and since it flagrantly violates Article 31(1) is ultra vires and unconstitutional. Similarly section 27 being severable is partially. ultra i·Ires and unconstitutional, being beyond the a. t>bit of the Act and also violative of Article 14oftheCon ing violence to the Parli1ment s intention stated in ·express term•. (908 G-H. 909A] 4.

11 Nor can sub-section (1) of section 21 of the Act be read aa containing merely an enabling provision; the sch-:me of sub-sections (1) to (4) read together ciearly shows that the disposal of excess vacant land is first to be done under sub·section (lJ aod disposal under sub·section (4J comes thereafter. · The opening words of sub·section (4), "'subject to sub-sections (I), (2) and (3)'' cannot be read as constituting a non obstante clause giving an overriding effect to sub-section (4) nor can sub-section (4• be read as if the opening words were absent. By indulging in such interpretative acrobatics, the Court cannot reach the opposit~ result than is ·warranted by the plain text of the provision. Further, to say that every disposal of excess v:icant la. ad ur. d 34 G-H, 935 A-BJ Indira Nehru Gandhi v. Raj Narain, {1976} 2 SCH. 347 rehed on H. H. Kesai·ananda Bharyti v. State of Kera/a [I 973J Supp. SCR p. I explained. 4.

3 It is extremely doubtful whether compulsory acquistion of all the excess vacant land in all urban agglomeration throughout the country for a bold, indefinite and unspecified objective like' industry", simliciter would be a valid exercise of the power of eminent domain. [928H·929A] 4. 4 Although the impugned Act is enacted with a laudable object to subserve the common good, in furtherance of the Directive Principles of State Policy under Article 39(b) and (c), in terms of sub-sections (I), (2J and (3) of section 23 it would be p:rmissible to acquire vacant land in urban agglomerations and divert it for private purpo5es, the whole emphasis being on industrialisation. The opening words in section 23 (4) "subji! ct to the provisions of subsections (I), {2) and (3)'' make the provisions of seation 23(4J subservient to section 23(1), which maket it lawful for tho allottee that is the industrialist to hold such land in excess of the colling limit. [928 D-F] 4.

5 The provisions of sub-sections (1), (2) and (3) of •ection 23 cannot be read in the light of the Preamble of the Act or the Directive Principles under Article 39(b) and (c). [929 B·CJ When the language of the section is clear and explicit, its meaning cannot be contrOlled by the Preamble. It is not for the Court to restructute the section. The restructuring of a statute is obviously a legislative function. The matter is essentially of political cx. pendiency and as such it is the concern of the statesmens and, therefore, the domain of the legislature and not the judiciary. [929 C-E] MSS. BRIM SINGH f. UNION ins The use of the words "subject to the provisions or sub-sections (1), (2) and (3)'' in section 23(4) takes away the complusion on the State Government to adhere to the Directive Principles under Article 39 (b) and (c) in making allotment of the vacant lands in an urban aggolomeration acquired under the Act.

The words "subject to the provisions of sub-sections (1), (2) and (3)'' i. 1 in section 23(4), appearing in the context means "in addition to if anything l; kft over after the allotment under section 23(1)". [929 F-G] A legislation built on the foundation of Article 39(b) and (c) permitting acquisition of private prop:rty must be for a Public purpose. that is to subserve the common good Sub-sections (I), (2) and (3) of section 23 of the Act negate that principle. Furthern1ore, Article 31(2) consists of three prerequisites, namely, (i) the property shall be acquired by or under a valid law; (ii) it shall be acquired only for a publi ·purpose, and (iii) the person whose property has bee:-i acquired shall be given an amount in lieu thereof. The definition of ·'industry·• in Explanation (b) to section 23(1) is wide enough to include any business, trade or vocation carried on for private grain.

Tllere cannot be "mixed purpose·' of public and private to substain under legislation Article 39(b) and (c). The vice lies in section 23(1) and the Explanation (b) thereto, which on a c0mbi11ed reading, frustrate the very object of the legislation. [930 A-CJ 4. 6 The concept of '•public purpose" necessarily implies that it should be a law for the acquisitio;i or requisition of property in the interest of the general public, and the purpose of such a law directly and vitally subserves public interest. If in reality the object of the acquistion under the Act is to set up industries in the private sector as is permissible fro n the provisions of section 23(1) of the Act, nothing prevents rhc State from taking recourse to section 40 of the Land Acquisition Act, 1894, for which there must be quid pro quo, that is, payn1~nt of compensation. according to the 1narket value.

[930 F-G] 4 7 The guidelines issued by the Government of India, Ministry of Works and Housing clarifying the intent and purpose of the provisions of the Act cannot supersede or alter any of the provisions of the Act or the rules made thereunder. The Guidelines cannot alter the "priorities'' laid in the NCtion~. The 1uidelin1s are nothina but in the nature of Executive Instructions and cannot obviou'3ly control the plain meanina of the section. [930 O~H, 932EJ Where the language of the Act is clear and explicit, the Courts must give effect to it. whatever may be the consequences for in that case the words of the statute speak the intention of the legislature. Therefore, the courts cannot be called upon the interpret the provisions of section 23 of the Act in the light of the Guidelines issued by the Government of India, Ministry of Works and Housing. 932 E-Fl 4. 8 The provisions of sub-sections (I).

(2) and (3) of section 21 and the opening words "'subject to the provisions of sub~sections (J), (2) and (3) in section 23(4) which makes tho settina up of industries the dominent object for the acquisition of vacant land in urban agglomerations under the Act are not in keeping with Part IV of the Constitution and, therefore, not protected under Article 31-C. [932 G-H] 4. 9 A legislation which directly runs counter to the Directive Principles of State Policy enshrined in Article 39(b) and (c) cannot by the mere inclusion in the Ninth Schedule receive im:nunity under Article 31-B. The Directive Principles are not mere homilies. Tl1ough these Directives are not cognisable by the Courts and if the Government of the day fails to carry out these objects no court can make the Government ensure them, yet these principles have been d~cla:red to be fundamental to the governance of the country. In short, the Directives emphasise.

in amplification of the Preamble, that the goal of the Indian policy is not laissez faire, liut a welfare State, where the State has a positive duty to ensure to its citizens social and economic justice and dignity of 1 the individual. It would serve as an ' Instrument of Instructions" upon all future governments, irrespective of their party creeds. 933A-B, E-F] 5. 1 The provisions of sub-section (1) of section 27 of the Act is invalid in so far as it seek to affect a citizen's right to dispose of his urban property in an urban agglom~ration within the ceiling limits. [946 B-Cj 5. 2 The right to acquire, hold and dispose of property guaranteed to a citizen under Article 19(1)(f) carries with it the right not to hold any property.

As such a, citizen cannot be compelled to own property against his will [945 G-H) There is no justification at aJl for the freezing of transactions by way of sale, mortgage, gift or lease of vacant land or building for a period exceeding ten years or otherwise for a period of ten years from the date of the commencement of the Act, even though such vacant land with or without building thereon falls within the ceiling limits. [945 E-F] If vacant land owned by a person falls within the ceiling limits for an urban agglomeration. he is outside the purview of section 3 of the Act. That being so, such a person is not governed by any of the provisions of the Act. [946AJ Excel Wear v. Union ofIndia and Ors. [1979) I SCR 1009 relied on. ORIGINAL JURISDICTION: Writ Petition No. 350/of 1977 etc. Under Article 32 of the Constitution of India. S. K. Jain and S. S. Khanduja for the Petitioners. R. N. Poddar and Ms. A. Subhashinl for the Respondents. The following Judgments were delivered MSS.

BHIM SINGH v. UNION (Chandrachud, C. J. ) 877 CHANDRACHuo, C. J. : A large group of persons holding vacant lands in different urban agglomerations in the country had filed writ petitions in this Court, challenging the validity of some of the key provisions of the Urban Land (Ceiling and Regulation) Act, 33 of 1976. Those writ petitions were disposed of on November 13, 1980 by a Constitution Bench consisling of Krishna Iyer J. , Talzapurkar J. , A. P. Sen J. , and the two of us. Each of our three 8 learned Brethren delivred a full judgment. We delivered a short judgment and stated that fuller reasons will follow later. We had discussed with one another the several points arising in the writ petitions. But, we were running against time, not an unusual predicament, since Krishna Iyer J. was due to retire on November 15, 1980, Tulzarpurkar J.

differed from all of us, holding that the impugned Act is not protected under Article 31·C or under Article 31-B since, it did not further the Directive principles contained in clauses (bl and (c) of Article 39 of the Constitution. The learned Judge held further that since Chapter III of the Act, comprising the substratum of the very scheme of the Act was invalid the entire Act had to be struck down as uncostitutional. A. P. Sen J. agreed with us on all the points e~cept that according to him, subsections tI), (2) and (3) of section 23 and the opening words of section 23(4) of the Act are unconstitutional. not being protected by Articles 31-B and 31-C of the Constitution. Krishna Iyer J. • concurred w•th us in holding that the entire Act is valid save and e~cept section 27(1 ), insofar as that section imposes restrictions on the transfer of any urban or urbanisable land with a building or portion of such building, which is within the ceiling area.

We took the view that the impugned Act was intended to and did in fact implement or achieve the purpose of clauses (b) and (c) of Article 39 and that, the vice from which a few provisions of the Act could be shown to suffer, would not justify a contrary conclusion. We are free to confess that if the full text of the judgment of Krishna Tyer J. were available to us sufficiently in advance we would not have delivered a separate order stating that fuller reasons will follow later. The judgment had to be pronounced on November 13, 1980 since, Krishna Iyer J. was due to retire two days later. As we have stated earlier, all of us had together-discussed the various points arising in these cases and we knew the conclusions to which we had respectively come. But, it is not possible to express agree· ment with the ! in~ Qf rea,soning of a jud11me11t, without examining (1985] SUPPL. s. c. R. the jud2ment carefully. That opportunity became available to us latter.

We have gone through Krishna Iyer J. 's judgment closely and find that there is nothing that we can usefully add to it. The only further order whicli we propose to piss now is 11ay that we agree fully with the reasons given by Kri,hn2 Iyer J. in his 8 judgment reported in 1981(1) S. C. C'. 166. CH \NDRACHUD, C. J. We have peru>ed the judgment prepared by Brother Tulzapurkar with care bill, with respect, we are unable to agree with him that the Urban Land (Ceiling and Regulation) Act 33 of 1976, does not further the Directive Principles of State Policy in clauses (bl and (c) of Article 39 of the Constitution. The vice from which a provision here or a provision there of tbe impugned Act may be shown to suffer will not justify the conclusion that the Act is not intended to or does not, by its scheme, in fact implement or achieve the purposes of clauses (b) and (c) of Article 39.

The definition of 'family' in section 2(f), which in relation to a person means the individual, the wife or husband, as the case may be, of such injividual and t! 1eir u~mirrid minor childorn, will not necessarily lead to concentration of wealth in the hands of a few person or familie1. Such is not the intendment, nor the drive, nor the direct and inevitablo consequence of the aforesaid dofinition of 'family'. Section 23 of the Act i; in our opinion valid and does not suffer from any constitutional infirmity. The definition of the word 'industry' in clause (b} of the Explanation to that section is undoubtedly unduly wide sine~ it include; "any business, profession, trade, undertaking or manufacture". If sub-section (I) of section 23 were to stand alone, no doubt could have arisen that the Urban Land Ceiling Act is a facade of a social welfare legislation and that its true, though concealed, purpose is to benefit favoured private individuals or associations or individuals.

But the preponderating provision aoverning the disposal of exce;s vacant land acquired under the Act is the one contained in sub-section (4) of of section 23 whereby, all vacant lands deemed to have been acquired by the State Goveenment under the Act "shall be disposed of... to subserve the common good". The provisions of sub-section (4) are "subject to the provisions of ~uh-sections (1), (2) and (3J "but the provisions of sub-section (I) MSS BHIM SINGH v. UNION (Chandrachud, C. J. ) 879 are enabliug and not compulsive and those of sub-sections (2) and (3) are incidental to the provisions of sub-section (1). The disposal of excess vacant lands must therefore be made strictly in accordance with the mandate of sub-section (4) of section 23, subject to this, that in a given case such land may be allotted to any person; for any purpose relating to, or in connection with, any 'industry' or for the other purposes mentioned in sub-section (!

), provided that by such allotment, common good will be subserved. The governing test of disposal of excess land being 'social good', any disposal in any particular c. se or cases which does not subserve that purpose will be liable to be struck down as being contrary to the scheme and intendment of •he Act. The Preamble to the Act ought to resolve interpre· tational doubts arising out of the defective drafting of section 23. It shows that the Act was passed with the object of preventing concentration of urban land in the hands of a few persons and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good. 'Common good' being the writing on the wall, any disposal which does not serve that purpose will be outside the scope of the Act and therefore Jacking in competence in diverse senses.

Private property cannot under our Constitution be acquired or allotted for private purposes though an enabling power like that contained in sub-section (1) of section 23 mw be exercised in cases where the common good dictates the distribution of excess vacant land to an industry, as defined in clause (b) of the Explanation to section 23. Section 11(6) which provides that the amount payable under sub-section (1) or sub-section (5) of section 11 shall, in no case, exceed two Jakhs of rupees is valid. The amount thus payable·is not illusory and the provision is not confiscatory. Rupees two lakhs is not like a farthing even if the excees land may be a fortune. Finally, we are of the opinion that sub-secton (1) of section 27 of the Act is invalid in so far as it imposes a restrictiou on transfer of any urban or urbanisable land with a building or a portion only of such building, which is wrthin the ceiling area.

Such property will therefore be transferable without the constraints mentioned in sub-section (I) of section 27 of the Act. The Writ Petitions are accordingly dismissed except for the restricted striking down of section 27, I) of the Act. There will be no order as to costs. Fuller reasons will follow latter. K~1SHAN IYER, J. I agree with the learned Chief Justice both regardmg the constitutionality of the legislation and regarding the partial invalidation of s. 27 (1). Nevertheless, I consider it necessary to strike a few emphatic notes of concordance having special regard to the discordance of my learned brother Tulzapurkar, J. I have carefully perused the judgment of Tulzapurkar, J, but must express my deferential disagreement because on a few fundamentals there is sharp divergence batween us. I proceed to turn the focus only on three issues, namely, tbe alleged artifbiality of 'family' as defined in s.

2 (f) of the Urban Land (Ceiling and Regulation) Act, 1976 (for short, the Act), the invalidity of s. 23 of the Act as discriminatory and, therefore, unconstitutional and the invalidity of s. 11 (6) of the Act on the score that the compensation offered is illusory and, therefore, violative of Art. 31 (2) of the Constitution. The legislation, as its title indicates, is obviously a measure for inhipiting concentration of urban lands in the hands of a few persons and fore quitetable distribution of such land to subserve the common good. Article 39 (b) and (c) of the Constitution are directly attraced and there is no doubt that the fullest exploitation of the material resources of the community undoubtedly requires distribution of urban land geared to the common good.

It is also a notorious fact that cocentration of urban land in private hands is an effective forbiddance of the maximum use of such land for industrial purposes at a critical juncture when the nation is fighting for survial thro. ugh industrialisation. It ~eeds no argument to conclude that the objective of the legislation as set out in the long title and in the statutory scheme is implementation of Part IV of the Constitution. The Directive principles of State policy being paramount in character and fundamental in the country's governance, distributive justice envisaged in Art. 39 (b) and (c) has key role in the developmental process of the socialist Republic that India has adopted. The conclu,ion is inevitable that is a broad measure of State policy, ceiling on and regulation of urban land ownership is an imperative of economic independence and is, therefore, on the national agenda of planned development. Indeed, there was no controversy on this question before us.

One of the points which has been argued and has found approval with my learned brother MSS BHIM SINGH v. UNION (Krishna Iyer, J. ) 881 Tulzapurkar, J. , turns on the gross inadequacy of compensation fixed under s. 11 (6) of the Act. There is a specific case before us that urban land worth a few crores will fall a prey to acquisition under this Act, but thanks to s. 11 (6), "the amount" payable in return to the owner shall not exceed Rs. 2 lakhs. This, it is contended, is an illusory compensation in reckless disregard of the market value of the property acquired. I am unable to agree with this submission. The taking over of large conglomerations of vacant land is national necessity if Art. 39 is a constitutional reality. "Law can never be higher than the economic order and the cultural development of society brought to pass by that economic order. " (Marx). Therefore, if Art.

38 of the Constitution which speaks of a social order informed by economic justice, is to materialise, law must respond effectively and rise to the needs of the transformation invisioned by the founding fathers. But it is contended that any legislation which violates Art. 31 (2) or Art. 19 (! ) (f) (both of them have since been deleted by the 44th Amendment to the Constitution although on the relevant date they were part of part III) must fail nothithstanding the fact that Arts. 31 B and 31 C shield the legislation in question. It h said that the Act is vulnerable for the reason that right to property armoured by the abov two Articles is inviolable unless the taking is for a public purpose in contrast to a private industry and the payment in return, even if not an equivalant, is be fair enough so as not to be castigated as illusory. The various amendments to Art.

31 culminating in the present provision which provides for the payment of an "amount" disclose a determined approach by parliament in exercise of its constituent power to ensure that full compensation or even fair compensation cannot be claimed as a fundamental right by the private owner and that short of paying a 'farthing for a fortune' the question of compensation is out of bounds for the court to investigate. 1 The question is whether in the light of Kesavananda Bharati ( ) (especially the observations of Chandrachud, J), a sum of Rs. 2 lakhs in s. 11 (6) is a farthing for a fortune. I repudiate the proposition that payment of a sum of Rs. 2 lakhs, whatever the total value of the property in the market may be is so fictitious and flimsy as to be farthing. There are no absolutes in law as in life and the compulsions of social realities must unquestionably enter the judicial verdict. (I) Kesavauanda Bharti v.

stat~ of ~crala [I973j 4 sec zi5 at 959, What is the dimension of Indian penury? What is the basis of our constitutional order? What is the goal of the Republic? What is the meaninig of the egalitarian ethos of our society? What do we mean by "We, the people of India"? Unless these profound roots of our social constitutional order are probed, we can never reach an effective answer to legal formal issues. The roots and fruits of our National Charter depend on a clear grasp of the constitutional fundamentals. In this context, it is important to remember what, right at the beginning even as the proceedings of the constituent Assembly were culminating, Nehru had warned: If we cannot solve this problem soon, all our paper constituti-ons will become useless and purposeless. If India goes down, all will go down; if India thrives, all will thrive; and if India lives, all will live.

Pio had repeated with emphasis: The first task of this Assembly is to free India through a new constitution, to feed the starving people and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity. Indeed, the tryst with destiny that India made when it became free found expression in a historic speech by the then Prime Minister, Jawahar Lal Nehru: The service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation bas been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and suffering, so long our work ~ .. will not be over. We must notice the Indian human condition.

"Indian poverty, to many who have an acquaintance with poverty in similar societies is unique", writes Segal in his book The Crisis of India: "It is unique in its depths, which seems incapablo of supporting life at all; unique in its blatancy, for it is everywhere, in city and village, and concealed amon~ chjmneys or trees, n t isol~ted like aq epidemic in an MSS BHIM SINGH •• UNION (Krishna Iyer, J. ) 883 inaccessible slum, but everywhere, on the movement of one's feet, always some where in the circle of one's sight; unique in its sheer magnitude. for in India the poor are not to be numbered in hundreds of thousands, but in hundres of millions; unique in the quality of its submission, which registers a kind of glazed pride.

" In this context we may also read what Rajen Babu stated as a framer of the Constitution: To all we give the assurance that it will be our endeavour to end poverty and squalor and its companions hunger and disease, to a abolish distinctions and exploitation and to ensure decent conditions of living. We may have to remember that a galaxy of Constitution-makers like Sardar Patel ane G. B. Pant and Rajagopalacbari, not to speak of Jawahar Lal Nehru, where doubtful about the court being given the power to pronounce upon the question of compensation when the State acquired property. Indeed, it is revealing to read the debates 1 in condensed form given by Granville Austin: ( ) Sardar Patel closed the debate with a speech that sounded like a requiem for land-lords ..... What did 'public use' mean be wondered. Pant then said: Suppose the government acquires zamindari rights and then abolishes them.

Or what if the Government takes over Connaught Place (the central shopping and office area of New Delhi) and then redi;tributes the buildings to the tenants? The first stage is acquisition. Does that come under this clause? To Ayyar's answer of 'Certainly', Pant replied that he opposed the wording if it means that the government would not be free to determine the com· pensation it would have to pay. If this clause covers all cases of acquisition. said Raj1gopalachari, then the question of the justness of compensation will go to the courts 'with the result that government functioning will be paralysed'. ... Panikkar suggested that they should take out the 'just' so that it would not be justiciable. Pant replied that if this covered acquisition for social purposes, 'then I submit payment of compensation should not even be compulsory'. Patel concluded the discussion. (! ) The Inl! ian copstitu\ion ; Cornerstone of a N'ation p. 88 884 SUPRBMI! COURT REPORTS (198S] SUPPi;, s. c. a.

'If the word 'just' is kept,' he said, 'we come to the conclusion that every case will go to the Federal Court. ' Therefore "just" is dropped ... ... ... ... The Assembly greeted the committee's actians favourably. We need not go into the details except to state that even Gandhiji took the view that anything like compensation could possibly not be given when property was taken from the property owners by the State for community benefit. I mention this this only to drive home the point that right to property is not part of the basic structure of the Constitution even as right to poverty is not the basic structure of India for ever. The whole adventure of the Constitution is to remove poverty and in that process remove concentration of property, not for a return, but for almost free, if the justice of the situation 1 commended it self to the legislation to take it that way. ( ) Of course, it may be a deception to say that an "amount" is paid if noth· ing is paid except a tittle.

So what we have to consider is whether the amount of Rs. 2 lakhs is so utterly deceptive and totally nominal as to be discarded as a farthing with contempt. Having regard to the human condition of a large percentage of pavement dwellers and slum dewllers in our urban areas and proletarian miserables in our rural vastnesses, any one who gets Rs. 2 lakhs can well be regarded as having got something substantial to go by. In a society where El half of humanity lives below the breadline, to regard Rs. 2 lakhs as a farthing is farewell to poignant facts and difficult to accept. In my view, with the greatest respect for my learned brother, I am unable to assent to the view thats. II (6) contravenes Art. 31 (2) because the payment stipulated is a mere mockery. ' To put a ceiling on the maximum amount payable when property is taken is reasonable and does not spell discrimination unless the maximum itself is a hoax, being trivial.

In a Constitution which creates a Socialist Republic egalite is the rule of life and where gross inequalities mar the economic order, a measure of equalisation is but one strategy of promoting equality and has to be viewed as part of the dynamics of social justice. Indeed, even in the Income Tax Act, at a certain stage, almost all the income is taken away by a steep rate of tax leaving next to nothing to the income earner. We have to be pragmatic and show empathy with the values (I) See Granville Austin, The India~ Constitution : \;ornerstone of a ! 'l~tion, p. 8~ . , , MSS BRIM SINGH v. UNION (Kri! hna iyer, i) 885 of the Constitution. Chief Justice Earl Warren's statement is 1 apposite as a reminder to our judical conscience:( ) Our judges are not monks or scientists, but parti cipants in the living stream of our national life, steering the law between the dangers of rigidity on the one hand and of formlessness on the other.

Our system faces no theortical dilemma but a single continuous problem: how to apply to ever-changing conditions the never-changing principles of freedom. I have no hesitation in holding s. 11(6) as invulnerable. 'Family' as defined in s. 2(f) has been held invalid by my learned brother Tulzapurkar, J,, as an arbiirary, artificial creation of the statute inconsistent with the natural unit prevalent in the country. Here again, I must emphasise that la·v is never static and must respond to the challenges ol change:(') The law is not an end in itself, nor does it provide ends. It is preeminently a means to serve what we think is right ..... Law is here to serve! To serve what? To serve, insofar as law can properly do so, within limits that I have already stressed, the realization of man's ends, ultimate and mediate Law cannot stand aside from the social changes around it. It is possible that in the las! century the prevalent concept of family was of a certain pattern.

Indeed, in the diversity of Indian social structure the conce 't of 'family' has varied from region to region and even from community to community and we cannot postulate any parameters in this behalf. Moreover, fission, not fusion, is the modern trend and wherever might have been the situation in Indian rural life in the 1950s there is no doubt that nuclear families are be· coming the vogue in the late 1970s and 1980s of Indian urban life. In the Western countrie; the family unit consis ts of the parents and their minor children and the West has invaded the East in life-style (I) Fortuno, November JQSS (2) William J. Brennan Jr. : Opinion, Roth v. United States 354 US 47• [1957) ' • • v atleast in our cities. Whatever may be the pastoral life of old or the Idyllic picture we may cherish the social facts tell a different tale in contemporary India of the cities.

There is hardly space for a unclear family to live in urban conditions and to think of large joint • families as the natural unit is to resurrect by gone ways of life and turn the blind eye to the rapid growth of the small family of man and wife-'we two and we shall have two' is the desideratum and social factum. In these days of family planning and self-reliance of the adult we cannot condemn as arbitrary, by a process of judicial ratiocination, the legislative provision that a family shall be defined as the parents plus their minor children. I, therefore, hold that 'family' as defined in s. 2(f) of the Act accords with the current life· style in urban conditions and is neither artificial nor arbitrary nor violative of Act 14. It is noteworthy that many agrarion legislations have been upheld by this court in a spate of recent cases where the definition of 'family' is substantially the same. I may permit myself a few observations on s.

23 of the Act and the grounds of invalidation relied on by the challengers. The section bas been loosely or ambivalently drafted and runs thus : 23. Disposal of vacant land acquired under the Act. (I) It shall be competent for the State Government to allot, by order, in excess of the ceiling limit any vacant land which is deemed to have been acquired by the State Goverment under this Act or is acquired by the State Government under any other law to any person for any prupose relating to, or in connection with, any industry or for providing residential accommodation of such type as may be approved by the State Government to the employees of any industry and it shall be lawful for such person to hold such land in excess of the ceiling limit. ,,, .

Explanation - For the purposes of this section, (a) where any land with a bulding has been acquired by the State Government under any other ff Jaw and such building has been subsequently demoli· shed by the State Government, than, such land shall be deemed to be vacant land acquired under such other law: MSS BHill SINGH '· UNION (Krishna Iyer, J. ) 887 (b) "industry" means any business, profession, trade, undertaking or manufacture. (4) Subject to the provisionio of sub-sections (I), (2) and (3), all vacant lands deemed to have been acquired by the State Government under this Act shall be disposed of by the State Government to subserve the common 30od on such terms and conditiom as the State Government may deem fil to impose. Certain basics must be remembered as ideological tools of legal interpretation. The purpose of the enactment, garnered from the Preamble, is to set a ceiling on vacant urban land, to take over the excess and to distribute it on a certain basis of priority.

The whole story of the _legislation, the long gestation of pre-legislative consideration, the brooding presence of Art. 39\b) and (c) and the emphasis in s. 23(4) on common good as the guiding factor for distribution point to public purpose, national development and social justice as the cornerstone of the policy of distribution. It is not and never can be compulsory taking from some private owners to favo1ir by transfer other private owners. The prevalent pathology of corrupt use of public power cannot be assu· med by the court lest the same charge be levelled against its echelons. The wide definition of 'industry' or the use of general words like 'any person' and 'any purpose' cannot free the whole clause from the inarticulate major premise that only a public purpose to subserve the common good and filling the bill of Art. 39(b) and (c) will be permissible. Even a private industry may be for a national need and may serve common good.

Even a medical clinic, legal aid bureau, engineering consultant's office, private ambulance garage, pharmacist's shop or even a funeral home may be a public utility. . i~ Professions for the people, trade at the service of the community and industry in the strategic sector of the nation's development may well be in private hands in the transitional stage of our pluralist economy undergoin11 a fabian transformation. Why should lands allotted to such private industries or professionals be condemned? The touch· stone is public purpose, community 1ood and like criteria. If the power is used for favouring a private industrialist or for nepotistic reasons the oblique act will meet with its judicial Waterloo.. To presume as probable araft, nepotism, patronaae, political cloth, 888 SUPREME COURT REroRTS (198S] SUPPL. 8. C,J\. friendly pressure or corrupt purpose is impermissible.

The law will be good, the power will be impeccable but if the particular act of allotment is malafide or beyond the statutory and constitutional parameters such exercise will be a casualty in court and will be struck down. We must interpret wide words used in a statute by reading them down to fit into the constitutional mould. The confusion between the power and its oblique exercise is an intellectual fallacy we must guard against. Fanciful possibilities, freak exereise and speculative aberrations are not realistic enough for constitutional invalidation. The legislature cannot be stultified by the suspticious improvidence or worse of the Executive. r wholly agree with the perspective of my learned brother Sen, J. that Part IV which seeks to build a Social Justice Society, is basic to our constitutional order. Any transgression of Art. 39(b) and (c) is beyond the scope of s. 23(1J and disposal of land thereunder must subserve the common good and not the reverse.

This limitation on the wide words of s. 23(1) is a matter of semantics and reading down meanings of words with loose lexical amplitude is permissible as part of the judicial process. To sustain a law by interpretation is the rule. To be trigger-happy in shooting at sight every suspect law is judicial legicide. Courts can and must interpret words and read their meanings so that public good is promoted and power misuse is interdicted. As Lord Denning said: "A judge should llVt be a servant of the words used. He should not be a mere mechanic in the power-house of semantics". May Lord Denning live long, and his shadow never grow less. "(1) The power of judicial review to stricke at excess or malafides is always there for vigilant exercise untrammelled by the narrow precedents of Victorian vintage. Prof. H. W. R.

Wade's note of judicial activism, in his recent Hamlyn Lectures, will set the sights 2 right:{ ) Brainwashed though British lawyers are in their professional infancy by the dogma of legislative sovereignty, they ought to excuse rather than criticise the logical contortions and evasions to which Judges must resort in their struggle to preserve their powers. I do not see how (I) "Lawyer" October 1980 Silver Jubilee 18\ue p. 172 (2) Hamlyn Lectures (32nd series) Constitutional Fundamentals. i. iss BHIM SINGH v. UNION (Krishna Iyer, J. ) 889 they can fairly be accu1ed, to borrow words used by Lord Devlin, of moving too far from their base. They would be much more open to criticism if they remained content with the wretchedly narrow base to which they confined themselves 30 years ago, when they took clauses of the "if the minister is satsfied" type at face value. For judicial control, particularly over disrcetionary power, is a constitutional fundmental.

In their self-defensive campaign the judges have almost given us a constitution, establishing a kind of entrenched provision to the effect that even Parliament cannot deprive them of their proper function. They may be discovering a deeper constitutional logic than the the crude absolute of statutory omnipotence. I have no doubt even the crude drafting of s. 23 (4) by the unwanted 'subject to' will not whittle down the power, why the obligation, to distribute vacant land, not according to personal, political or official fancy but strictly geared to the good set down in Art. 39 (b) and (c) The question of basic structure being breached cannot arise when we examine vires of an ordinary legislation as distinguished from a constitutional amendment. Kesavananda Bharati (1) cannot be the last refuge of the proprietariat when bening legislation takes away their 'excess' for societal weal. Nor, indeed, can every breach of equality spell disaster as a lethal violation of the basic structure.

Peripheral inequality is inevitable when largescale equalisation processes are but into action. If all the judges of the Supreme Court in solemn session sit and deliberate for half a year to produce a legislation for reducing glaring economic inequality their genius will let them down if the essay is to avoid even peripheral inequalities Every large cause claims some martyr, as sociologists will know. Therefore, what is a betrayal of the basic feature is not a mere violation if Art. 14 but a shocking, unconscienable or unscrupulous travesty of the quintessence of equal justice. If a legislation does go that far it shakes the democratic foundation and must suffer the death penalty. But to permit the Bharati (') ghost to haunt the corridors of the court brandishing fatal writs for every feature of (t) [t973J 4 sec 255 inequality is judicial paralysation of parliamentary function. Nor can the constitutional fascination for the basic structure doctrine be made a Trojen horse to penetrate!

he entire legislative camp fighting for a new social order and to overpower the battle for abolition of basic poverty by the 'basic structure' missile. Which is more basic? Eradication of die-hard, deadly and pervasive penury degrading all human rights or upholding of the legal luxury of perfect symmetry ... and absolute equality attractively presented to preserve the status quo ante? To use the Constitution to defeat the Constitution cannot find favour whit the judiciary! [have no doubt that the strategy of using the missile of 'equality' to preserve die-hard, dreadful societal inequality is a strategem which must be given short shrift by this court. The imperatives of equality and development are impatient for implementation and judicial scapegoats must never be offered so thlt those responsible for stalling economic transformation with a social justice slant may be identified and exposed of.

Part IV is a basic goal of the nation and now that the court uphold; the urban ceiling law, a social audit of the E 11ce11tr11tio11 of MSS BHIM SINGH v. UNION (Tulzapurkar, J. ) 899 wealth (urban vacant land) in the hands of a family having major sons in it as compared to the family having minor children. In the illustration given above a family of a father with four major sons is allowed to retain with itself 2,500 sq. metres of vacant land while a family of a father mother and three minor sons is permitted to retain only 500 sq. metres. The position becomes more glaring if I take the illustration of a Joint Hindu Family consisting of five brothers, each having five major sons, as, in such a case the said Joint Hindu Family will be entitled to retain 15,000 sq. metres of vocant land as against 500 sq. metres permitted to be retained by the artificial family.

It cannot be said that large joint Hindu familis are unknown in urban agglomerations in various cities and towns of the country and instances more glaring than the preceding illustration could be multiplied. In other words, by adopting the artificial defintion of 'family' and double standard for fixing the ceiling area the Act enables unwarranted and unjustified concentration of wealth in the hands of few rather than preventing the same and this certainly would be in teeth of and not in furtherance of the directive principle of Art. 39(c); in fact, it is a negation of that principle. It is not possible to take the view that the Parliament out of inadvertance ignored joint Hindu Family or forgot the possible concentration of vacant land in the hands of major members of large joint Hindu families, because in another context the concept of Joint Hindu Family was present to the mind of the draftsman as is clear from s. 4(7) of the Act.

In my view, therefore, the adoption of the artificial definition of 'family' and double standard for fixing ceiling area one for a family with minor cbildern and another for a family with major children and completely ignoring the concept of Joint Hindu Family in relation to prescription of ceiling area clearly lead to results which run counter to the directive principle contained in Art. 39(c) of the Constition. The Act which contains such provision being in teeth of that directive principle must fall outside the pale of protective umbrella of Art. 31C. Re : s. 23 relating to disposal of excess vacant land acquired under the Act. Jt may be stated that under s.

6 every person holding vacant land in excess of the ceiling limit at the commencement of the Act is required to file within the period prescribed a statement before the QOmpetent ~uthority havin11 jurisdiction ~ivin~ full particulars thereof and also specifying the vacant land within the ceiling limit which he • desires to retain. Sections 8 and 9 provide for preparation of draft statement as regards vacant land held in excess of the ceiling limit, holding of an inquiry in that behalf and preparation of final state· ment and service thereof on the concerned person by the competent authority, Section I0 provides for acquisition of excess vacant land by the concerned State Government and determination of claims of 8 all persons interested in such excess vacant-land and under sub·s.

(3) it is provided that upon the publication of a notification in that behalf such excess vacant land as may be specified therein shall be deemed to have been acquired by the State Government and the same shall vest absolutely in the State Government free from all encumbrances with effect from the date specified in the notification. Then comes s. 23 which deals with disposal of such excess vacant land acquired by the State Government under the Act. It runs as follows: "23.

(1) It shall be competent for the State Government to allot, by order, in excess of the ceiling limit, any vacant land, which is deemed to have been acquired by the State Government under this act or is acquired by the State Government under any other law, to any person for any purpose relating to, or in connection with, any industry or for providing residential accommodation of such type as may be approved by the State Government to the employees of any industry and it shall he lawful for such person to hold such land in excess of the ceiling limit. Explanalion,. -For the purposes of this section,- (a) Where any land with a building has been acquired by the State Government under any other law and such building bas been subsequently demolished by State Government, then, such land shall be deemed to be vacant land acquired under such other law; (b) "industry" means any business, profession, trade, undertaking or mrnufacture.

(c) In making an order of allotment under wb-section (I), \be S\ate Government may impose such cQtJditions Mss BlllM SINOll Ii. UNION (Tulzapurkur, J. ) 901 as may be specified therein including a condition as to the period within which the industry shall be put in operation or, as the case may be, the residential accommodation shall be provided for : Provided that if, on a representation made in this behalf by the allottee, the State Government is satisfied that the allottee could not put the industry in operation, or provide the residential accommodation, within the period specified in the order of allotment, for any good and sufficient reason, the State Government may extend such period to such further period or periods as it may deem fit.

(3) Where any condition imposed in an order of allotment is not complied with by the allottee, the State Government shall, after giving an opportunity to the allottee to be heard in the matter, cancel the allotment with effect from the date of the non-compliance of such condition and the land allotted shall revest in the State Government free from all encumbrances. (4) Subject to the provisions of sub-sections (I), (2) and (3), all vacant lands deemed to have been acquired by the State Government under this Act shall bo disposed of by the State Government to subserve the common good on such terms and conditions as the State Government may deem fit to impose.

(5) Notwithstanding anything contained in sub· sections (I) to (4), where the State Government is satisfied that it is neces>ary to retain or reserve any vacant land, deemed to have been acquired by that Government under this Act, for the benefit of the public, it shall be competent for the State Government to retain or reserve such land for the same. " Five or six aspocts or peculiar features emerge clearly from the provisions contained ins. 23 in the context of the entire Act. In the first place unlike agrarian ceiling which deals with land as means of production, urban ceiling under the impugned Act deals with vacant 902 StlPRBMi! CoURT REPORTS (i98S) SUPPL. s. c. i. land in urban agglomerations not as a means of production but as a part of the holder's wealth or capital asset.

Secondly, unlike agrarian ceiling which has the objective of distributing surplus agricultural land straightway among landless persons, under the impugned Act excess vacant land in urban agglomerations is acquired by and vests in the State to be disposed of as indicated in the section; clearly a legislation in exercise of the State's power of eminent domain (i. e. power of compulsory acquisition of private property). Thirdly, such excess vacant land thus acquired is to be disposed of by the State Government "for any purpose relating to or connected with industry or for providing residential accommodation to the employees of any Industry". Fourthly, under cl. (b) of the Explanation, 'industry' bas been very widely defined for the purposes of this section to mean any business, profession, trade, undertaking or manufacture; the word 'any' clearly suggests that business, profession, trade, undertaking or manufacture even in private sector is included. Fithly. sub-s.

(I) confers absolute power and discretion on the State Government to allot any amount of such excess vacant land to any person for any industry. Reading the fourth and fifth aspects together, it is clear that it is open to the State Government to allot any extent of such excess vacant land to any professional person, say a lawyer a medical practioner or even an astrologer for the purpose of carrying on his private profession. Sixthly, the section contemplates utilisation of such excess vacant land by the Stele Government in three ways: (a) allotment for industry (b) allotment to subserve the common good and (c) retention or reservation for the benefit of the public, but, the priorities in the matter of disposal or distrbution of such excess vacant land have boen peculiarly fixed in the section these priorities, as indicated in sub·SS.

(1) and (4), are:=(i) allotment for the purpose of an industry, namely any business, profession, undert king trade or manufacture, (ii) allotment for the purpose of construction of houses for the employees of an industry specified in item (i) above and (iii) disposal to subserve the common good which would include allotment of vacant land for governmental purpose or local authorities or for institutions etc. In other words, it is after the disposal of such excess vacant land for items (i) and (ii) above that the balance thereof can be disposed of "to subserve the common good" which means private purposes have precedence over public purposes, and this is clear from the fact that disposal under sub-s. (4) is "subject to" the prior disposal under sub-s. (I) for purposes of industry. In fact, disposal of excess vacant land for subserving the common good is last in the priorities Sub. s (5) undoubtedly has an MSS BRIM SINGH v. UNION (Tu/zapurkar, J. ) 903 overriding effect over sub·ss.

(I) to (4) but that provision deals not with disposal or distribution of excess vacant land but with retention and reservation of such vacant land by State Government for the benefit of the public like social housing and provision for basic arenities etc. Having regard to the aforesaid peculiar _feature~ that energe from a consideration of the provisions contained in s. 23, counsel for the petitioners contended that the acquisition of excess vacant land in urban agglomerations cannot be said for a public purpose at all and hence the ehactment which is primarily for compulsory acquisition of private property runs counter to a valid exercise of the State's power of 'eminent domain'.

He pointed out that no scheme for any industrial development for any urban aggloneration has been indicated in the Act, nor any such scheme seems to have been prepared by any State Government or even by the Union Government before undertaking the legislative measure in hand and no definite public purpose of industrialisation with any plan or blue print with set specifications or standards seems to have been within the contem· plation of the sponsoring States or the Union Government; at any rate no material in that behalf has been placed on record before the Court and, therefore, according to counsel, compulsory acquisition of all exces~ vacant land in all urban agglomerations throughout the Union Territories and the 17 States of the country for achieving a bald, indefinite and unspecified objective of an 'industry' would not be a valid exercise of the power of eminent domain.

Alternatively, counsel contended that even if it were assumed for the purpose of argument that a bald, indefinite and unspecified objective of 'industry' is a public purpose, when that concept of 'industry' is widely defined so as to include any business, trade or profession in privare sector, the purpose 'beds its character as a real public purpose, which posi· tion is further componded by the priorities laid down in the section and the acquisition becomes acquisition for private purpose amount· ing to an invalid exercise of the States's power of eminent domain. Counsel, therefore, urged thats. 23 flagrantly violates Art. 31 (2) and is, therefore, ultra vires and unconstitutional and since it is a pivotal provision having an impact on the entire Ceiling scheme and at the same a non-severable provision from the rest of the provisions contained in that chapter, the whole of Chapter III must fall with it.

Article 31 of tlic Constitution has more than one facet, it undoubtedly confers upon individuals (including non-citizens) and 904 SUPREME touin REPORTS (198$j SUPPL. s,t. R. corporate bodies a fundamental right to property but because of conflict of views in Keshavanada Bharati's case (supra) it may be debatable whether that right forms part of basic structure or not, but that apart, Art. 31 incorporates in our Constitution the concept of State's power of eminent domain i. e. power of compulsory acquisition of private property and prescribes two conditions precedent to the exercise of the power, namely, (i) such acquisition cannot be except for a public purpose and (ii) it must be on payment of compensation (now termed 'amount') to the claimant having interest in the propaty. In Kameshwar Singh's(') case this position has been clarifie where Mahajan, J.

, after referring to some authoritative books has summed up the definition of the concept in one sentence thus· "Authority is universal in support of the amplified definition of 'eminent domain' as the power of the sovereign to take property for public use without the owner's consent upon making just compensation," The requirement of just compensation under the latter condition is diluted to payment of non-illusory amount under the 25th Amendment of the Constitution and subsequent decisions of this Court. But it is well settled that these two conditions precedent are sine qua non for the exercise of the State's power of eminent domain' and, in my view, represent those aspects of the right to property under Art.

31 which constitute the essential or basic features of our Constitution and for that matter these would be so of any democratic constitutiQn and, therefore, any law authorising expropriation of private property in breach of any one of 1hose condit10ns would damage or destroy the basic structure of our constitution. It is extremely doubtful whether a bald, indefinite and unspecified objective like 'industry' simpliciter without any attempt at dovetailing it by having a proper scheme for industrial development will constitute a valid public purpose for the exercise of the power of 'eminent domain'. It is because of the absence of any definite scheme for industrial development with plans or blue prints with set specifications or standarads for any of the urban agglomerations that wide power has been conferred on the State Government under sub-s. (1) in vague terms to allot any extent of such excess vacant land to any person for any industry.

I am conscious that in Kameshwar Singh's case (supra) this Court speaking through M1hajan, J,, observed that "the phrase 'public purpose' has to be (I) [1952]3 SCR 889 Mss BIHM SINGH v. UNION (Tulzapurkar, J. ) 905 construed according to the spirit of times in which the particular legislation is enacted" and held that so construed, acquisition of estates for the purpose of preventing the concentration of huge blocks of land in the hands of a few individuals and to do away with intermediaries was for a public purpose. But that case dealt with three statutes (the Bihar Land Reforns Act, 1950, the M. P. Aboli· tion of proprietary Rights Act, 1950 and the U. P.

Zamindari Abolition and Land Reforms Act, 1950), the common aim of which, generally speaking, was to abolish zamindaries and other proprietary estates and tenures in the three States, so as to eliminate the inter· mediaries by means of compulsory acquisition of their rights and interests and to bring the raiyats and other occupants of lands in those areas into direct relation with the Government and therefore, that case is distinguishable and its ratio would not apply to the instant case where the purpose of acquistition of excess vacant (urban) land is a bald objective like 'industry· simpliciter, surely different considerations would apply. In my view it is extremely doubtful whether compulsory acquisition of all the excess vacant land in all 0 urban agglomerations throughout the country for a bald, indefinite and unspecified objective like 'industry' simpliciter would be a valid exercise of the power of 'eminent domain'.

·However, it is not necessary for me to decide this larger question inasmuch as in my view the alternative submission of counsel for the petitioners clinches the issue in this case. Assuming that a bald objective of 'industry' simpliciter partakes of the character of a public purpose, what Parlia· ment intended by the said objective bas been expressly clarified by cl. (b) of the Explanation where 'industry' has been very widely defined so as to include any business, trade or profession in private sector which makes a mockery of such public purpose. Whatever be the merits or demerits of a wide definition of 'industry' for the purposes of industrial-cum-labour relations, adoption of such wide definition of the concept in the context of eminent domain is clearly suicidal. By adopting such definition for the purposes of s. 23 the State Government has been empowered under sub·s.

(I) to allot any extent of such excess vacant land to any businessman, trader or professional man like a lawyer, doctor and astrologer to enable him to carry on his private business, trade or profession. In other words, acquisition of excess vacant land in urban agglomeration would clearly be for private purposes and what is worse is that under the priorities laid down such private purposes are to be catered to first and then comes the disposal or distribution thereof to subserve common good. This clearly smacks of depriving peter of his property to give it to Paul 9()6 SUPRiiMB cOURT REPORTS [19s5j SUPPL. s. c. a. and, therefore, clearly amounts to an invalid exercise of State's power of 'eminent domain'. Section 23, which thus authorises compulsory acquisitions of property for private purposes flagrantly violates those aspects of Art. 31 which constitute the essential or basic features of the Constitution and is, therefore, ultra vires and unconstitutional.

Further, indisputeably it is the most vital, integral and non-severable part of the entire scheme of urban ceiling as without it the scheme will merely remain a scheme for unjust and illegal enrichment of the State and, therefore, the whole of Chapter III, in which it occurs, must fall with it. Apart from the unconstitutionality of s. 23 as indicated above, it is clear that the wide definition of 'industry' and the priorities for disposal or distribution of excess vacant land laid down therein have adverse impact on the directive principle contained in Art. 39(b'. In the first place instead of confining the objective of industrialisation to public sector or cooperative sector and the like where benefit to community or public at large would be the sole consideration, the concept is widely defined to include any business, trade or profession in private sector which enables the disposal or distribution of excess vacant land for private purposes and sub-s.

(I) authorises the State Government to allot any extent of such land to individuals or bodies for private purposes. Secondly, the priorities in the matter of disposal or distribution of the excess vacant land under sub-sections (! ) and (4) are as indicated above, which show that disposal or distribution of excess vacant land for subserving the common good comes last in the priorities. I have already indicated that the postulate underlying the directive principle of Art. 39(b) is that diffusion of ownership and control of the meterial resources of the community is always in the public interest and, therefore, the State is directed to ensure such distribution (equitable) thereof as best to subserve the common good but the priorities prescribed in sub-ss. (! )and (4) of s. 23 in regard to distribution of material resource produce contrary results or results in the opposite direction inasmuch as private purposes receive precedence over common good.

The enactment which contains such provisions that produce contra resultes cannot be said to be in furtherance of the directive principle of Art. 39(b) and cannot receive the benefit of the protective umre! la of Art. 31C. Counsel for the respondents, however, relied upon three aspects to counter-act the aforesaid. result flowing from the priorities MSS BH! M SINGH v. UNION (Tuizapurkar, i. ) 907 given in s. 23(1) and (4). It was urged that the disposal of excess vacant land acquired by the State under the Act will be guided by the Preamble which says that enactment was put on the Statute Book with a view to bringing abou! the equitable distribution of land in urban agglomerations to subserve the common good. In the first place, it is well settled that it is only when there is some ambiguity in test of any provision in the enactment that the preamble could be looked at and here there is no ambiguity whatsoever in s 23, I) and (4).

Secondly, far from there being any ambiguity there is express provision in s. 23(1) and (4) indicating the priorities in the matter of disposal or distribution of excess vacant land, in face of which, the preamble cannot control, guide or direct the disposal or distribution in any other manner. Next, reliance was placed on s. 46( I) which empowers the Central Government to make rules for carrying out the prosisions of the Act and the disposal or distribution of excess vacant land could be prescribed by rules. It may, however be stated that no rules under s. 46 have so far been framed by the Central Government and, in any event, no rules framed thereunder can over-ride the express provisions of s. 23. Lastly, reliance was placed on certain guidelines issued by the Central Government in its Ministry of Works and Housing under the Act and at page 83 of the "Compendium of Guidelines" (a Govt.

of India publication dated February 22, 1917) a note containing guidelines on utilization of excess vacant land acquired under the Act is published. Paragraphs 3 and 4 of the said Note deal with the topic of priorities. In para 3 the disposal or distribution of excess vacant land as per the priorities ins. 23 bas been set out (which are the same as given above) while para 4 sets out the priorities in accordance with the recommendations m1de by the 9th Conference of State Ministers of Housing and Urban D'velopment held at Calcutt