Girijananda Chaudhury vs State of Assam and Another

Sarjoo Prosad, C.J.—The principal question which arises for determination in this application for writ is the constitutional validity of the Assam Assessment of Revenue Free Waste Land Grants Act (Act 24. of 1948).

Most of the grounds on which the legislation is challenged are covered by the decision, of this Court in--''All India Tea & Trading Co Ltd. v. State of Assam'' ILR (1953) 5 Assam 200 (A). It was, however, contended with some-amount of reason that the decision required reconsideration and as we considered the question, of sufficient importance, we referred this matter to a Special Bench.

The material facts are almost undisputed. The petitioner is owner of certain revenue free estates commonly known as the Greenwood Fee Simple Grant, Bhogargaon Fee Simple grant and the Odal Bakara Fee Simple grant in Mauza Beltola of Kamrup district.

The said estates were conveyed to the predecessor in interest of the petitioner by the Government of India in 1874 under registered sale deeds executed by the then Deputy Commissioner of Kamrup on behalf of the Secretary of State for India in Council. The lands covered by the aforesaid deeds were permanently released and for ever discharged of all Government land revenue accrued, or but for the aforesaid deeds so executed, would have accrued.

The owner of the lands was thereafter entitled to hold them for ever free from the liability for payment of all Government land revenue, but subject to all general taxes and local rates, then existing or thereafter to be imposed by law in respect thereof.

Since the date of acquisition, the above estates were held and enjoyed by the petitioner and his predecessors in interest free of land revenue until the legislation in question came to be passed and received the assent of the Governor on 14-11-1948. The said Act provides, inter alia, for assessment of land revenue on all revenue free waste land grants with effect from 1-4-1948.

Accordingly, the petitioner was assessed to land revenue in respect of the said estates and the same was realised by the Government for the years 1358 B.S. (1949-50), 1357 B.S. (1950-51) and 1358 B.S. (1951-52). The petitioner has again been served with notices by the officers concerned for payment of land revenue in respect of those estates for the year 1359 B.S. (1952-53) and distress warrants have been issued against; him for realisation of the same leading to various Bakijai cases pending against the petitioner.

He submits that the Assam Act in question in so far as it purports to assess the estates of the petitioner which were revenue free grants with payment of revenue, contravenes Section 299, Government of India Act, 1935, as also the provisions of the Constitution and is an inroad upon his fundamental rights guaranteed by Articles 19(1)(f) and 31 of the Constitution.

He, therefore, contends that the Act in question being repugnant to the Constitution, is void and inoperative and cannot be acted upon and the steps taken by the respondents against him on the authority of the said legislation are unwarranted and illegal. He accordingly prays that an appropriate writ be issued directing the respondents to recall the demand notice for payment of revenue issued against the petitioner and the proceedings instituted to enforce those demands.

The whole question, therefore, is whether the legislation in question is ultra vires the Government of India Act 1935 and the present Constitution, in so far as it purports to affect the estates of the petitioner which had been held by him until the Act in question came into force, free from the payment of revenue by virtue of the stipulation contained in the sale deeds executed by the Government, conveying these lands for consideration to the petitioner''s predecessors-in-interest and alienating also there under the right to realise land revenue.

The introduction to the Assam Land and Revenue Regulation supplies some interesting and historical data as to the origin of these revenue-free grants. It appears that for nearly a century after the discovery of tea in Assam in 1826 the policy of Government was to encourage opening out of the sparsely populated tracts of the province by the offer of land on specially favourable terms.

In every district there were large areas of un-classed and uncultivable lands, much of which, though unsuitable for cultivation of transplanted paddy, was eminently suitable for the cultivation of tea. For many years to come there was no competition between ordinary cultivators and those who sought lands for tea plantation.

A good deal of development was necessary in clearing the jungles and Special Waste Land Rules were framed to encourage the investors to take up lands for special cultivation only, that is to say for the cultivation of tea and coffee, etc., as distinguished from that of the staple crops of the country. The first Special Grant Rules came into operation on 6-3-1838 and related only to Assam proper.

Under these rules no grant was to be made of as area less than 100 acres or greater than 1000 acres. One-fourth of the entire area was to be brought under cultivation by the expiration of the fifth year from the date of grant, on failure-of which the whole grant was liable to resumption. One-fourth of the grant was to be held in perpetuity revenue-free and on the remaining three-fourths no revenue was to be assessed for the first five years if the land was under grass, 10 years if under reeds and high grass, and 20 years if under forest.

On the expiry of this term revenue was to be assessed at graded rates. The next rules came into operation on 23-10-1854 for lease-hold grants.

Under these rules no grant was to be less than 500 acres in extent (afterwards reduced to 200 and 100 acres respectively), one-fourth of the grant was exempted from assessment of land revenue in perpetuity, and the remaining three-fourths were granted revenue free for 15 years to be assessed thereafter at comparatively easier rates. One-eighth of the grant was to be cleared and made fit for cultivation in five years, one-fourth in ten years, one-half in twenty years and three-fourths by the end of the thirtieth year.

In case of non-fulfilment of these conditions the entire grant was liable to be forfeited. These grants were transferable. The above rules remained in force till 1861 when they were superseded by the rules for grants in fee simple, which at the same time allowed holders of lease-hold grants under the prior rules to redeem their revenue payments on condition that the stipulated area had been duly cleared at twenty years purchase of revenue payable at that time.

The first Pee Simple Rules were issued in October, 1861 and then they were replaced by a fresh set of rules on 30-8-1862. Under these rules provision was made for survey of lands previous to sale and for the demarcation of proper boundaries and for the protection of proprietary or occupancy rights in the lands. The rules were later substituted by a revised set of Pee Simple

Rules in February, 1874 just before the constitution of the Province of Assam as a separate administrative unit.

These rules were again revised in 1876 which continued to remain in force. We find a reference to those Pee Simple Grant Rules also in Section 2 of the Act now impugned. The growth of competition in tea plantation and increasing scarcity of land suitable for that purpose has necessitated in recent years a thorough revision of the whole situation with the result that special terms are no longer offered to applicants for grants for special cultivation, but a premium at varying rates has to be charged.

It is by virtue of the Rules above referred to which were prevalent at the time, that the revenue payable in respect of these estates was capitalised and the right to hold the lands free from payment of revenue by the petitioner was acquired by the petitioner''s ancestors for valuable consideration. Since then the estates have been admittedly held by the owners as revenue free estates.

The right to redeem the estates from their revenue payments was recognised by the above Rules and was capable of being transferred and was in fact transferred by the Provincial Government in favour of the petitioner''s ancestors. It is accordingly claimed that the right to hold the estates revenue-free is a right of property or in other words "property" itself, and formed an integral part of the ownership of the estates ever since they were transferred by the State Government.

I have referred to this historical background in order to appreciate the nature of the petitioner''s claim, and because in my estimation it has a relevant bearing on the point whether the right in claim is a right in property.

I shall now turn to examine the competency of the legislation itself, which is impugned before us. The legislation came into operation with effect from 1-4-1948 although it received the assent of the Governor in November of that year. u/s 3 of the Act it is enacted that

notwithstanding anything contained in the Assam Land and Revenue Regulation or in any other law for the time being in force, or in any contract, and notwithstanding any express exemption from assessment under the terms of any Grant, a Revenue Free Waste Land or Grant shall be deemed liable to assessment to revenue on and from 1-4-1948, and such Grant be liable to the payment of revenue, in addition to the local rates and cesses, if any, assessed thereon....

The Act was passed by the Provincial Legislature which functioned then under the Government of India Act 1925 Section 99, Government of India Act, provided for the distribution of legislative powers between the Central and Provincial Legislatures and the section empowered the Provincial Legislature to make laws for the Province or for any part thereof.

Under Section 100 of the Act, this power of legislation by the latter was to be exercised with respect to any of the matters enumerated in List II of the Seventh Schedule to the Act and also in respect of List III of the Schedule which was the Concurrent Legislative List. Item 39 of List II referred to

land revenue, including the assessment and collection of revenue, the maintenance of land records, survey for revenue purposes and records of rights, and alienation of revenue.

Under this legislative head, therefore, the Provincial Legislature was entitled to enact the legislation in question and had the right to impose land revenue on the estates within its territory. Section 299, Government of India Act put certain limitations upon the legislative powers of the Legislatures concerned in regard to property and land. It provided that no person shall be deprived of his property in British India save by authority of law.

In other words legislation was necessary to deprive a person of his property, which could not be done merely by an executive or administrative act on the part of the Government. It further provided that the Federal or Provincial Legislature shall have no power to make any law authorising compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking or any interest therein, unless the law made provisions for compensation, or specified the principles on which, and the manner in which, it was to be determined.

The word "land" used in the section was defined to include Immovable property of every kind and any right in or over such property. It is contended that in view of Section 299 of the Constitution Act, the Provincial Legislature was not authorised to pass the Act in question without providing for and fulfilling the conditions laid down by Clause(2) of that section.

It is argued that the word "land", including as it does any right in or over such property, any legislation authorising compulsory acquisition of such property must of necessity show that the acquisition was for a public purpose and provided for payment of compensation for the property acquired. These elements are absent in the legislation impugned before us.

It is claimed that the words "any rights in land" occurring in Section 299(2) of the Act are comprehensive enough to include the right to hold the estates revenue-free, the right having been duly conveyed to the petitioner''s ancestor by the Government. That the revenue payable was alienable could not be doubted, as it was apparent from item No. 39 of the Seventh Schedule of the Act itself.

The revenue so alienated therefore constituted an integral part of the petitioner''s interest in the estates aforesaid. It is, therefore, urged that the law in question must be held to be repugnant to Section 299(2), Government of India Act, and as such ultra vires the Act itself. It is contended that the position is even worse under the present Constitution.

Article 245 of the Constitution of India empowers the Legislature of a State to make laws for the whole or any part of the State and under. Article 246 it is provided that the Legislature of a State is authorised to legislate about any matter, enumerated in List II of the Seventh Schedule of the Constitution.

The subject of

land revenue, including the assessment and collection thereof, the maintenance of land records, survey for revenue purposes and records of rights and alienation of revenue

is item No. 45 of that List. As such the Provincial Legislature is entitled to legislate on the subject.

But under the present Constitution also a safeguard has been provided in regard to legislations affecting rights in property. Article 31 of the Constitution which falls in Part III dealing with fundamental rights has definitely enacted as in Section 299 of the old Constitution Act that no person; shall be deprived of his property save by authority of law. Clause (2) of that Article further lays down that

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

A further safeguard provided under the Article is that no such law as is referred to in Clause (2) made by the Legislature of a State shall have effect unless such law, having been reserved for the consideration of the President, has received his assent. I need not refer to the other provisions of the Article at this stage. Clause (2) of the Article refers to both moveable and Immovable property and includes any interest therein.

It is, therefore, much wider than the expression "land" used in Section 299, Government of India Act, and the petitioner contends that the interest claimed by him in the estates in question constitutes an interest in Immovable "property" within the meaning of the Article. Therefore, in the absence of any provision in the law, for compensation or public purpose, the legislation it is asserted, must be hit by Article 13 of the Constitution and must be void on account of its inconsistency.

It is also argued that the legislation in question is in violation of Article 19(1)(f) of the Constitution, which guarantees all citizens right to acquire or hold property, and that the legislation is not saved by Clause 5 of the Article in question.

The decision, therefore, turns upon the interpretation of the word "property" as used in Section 299, Government of India Act, or under Article 31(2) of the Constitution, and also upon the meaning of the words "taken possession of or acquired" in that Article and the words "compulsory acquisition" in Section 299 of the Constitution Act.

The word "property", it may be recalled, in the context of Section 299(2) has been meant to include land or any commercial or industrial undertaking or any interest therein. The words "moveable" and "immovable" property do not occur in Section 299 as they do in Article 31 of the Constitution. In this case the claim is confined to this that the right to hold the estates revenue-free is a property right. As such the question of moveable property does not arise at all.

Now it is an accepted principle that the words of the Constitution must be naturally and liberally construed, and no narrow or restricted interpretation should be put upon the words unless such interpretation is forced by the context in which they occur. Each general word should be held to include all ancillary or subsidiary matters which can be fairly and reasonably said to be comprehended in It.

The word "property" has not been defined in the Government of India Act, 1935 or in the Constitution itself. Article 31 like Article 19(1)(f) of the Constitution is concerned with "property." The two Articles occur in the same chapter which deals with fundamental. rights.

It may be, therefore, safely assumed that in construing the said Articles, the word "property" must bear the same meaning. The word apparently connotes all those bundle of rights, tangible or intangible, corporeal or incorporeal which go to make up ownership. It is not possible to attempt an all comprehensive survey of the various rights, privileges and immunities which a man enjoys in respect of his property. and which may be legitimately described as "property" itself.

The determination of the question will depend upon the facts and circumstances of each case. The dictum of Patanjali Sastri, C.J. in the case of The State of West Bengal Vs. Subodh Gopal Bose and Others, at p. 101 (B) is relevant in this connection. He explained the meaning of the word "property" thus:

Now, the word "property" in the context of Article 31 which is designed to protect private property in all its forms, must be understood both in a corporeal sense as having reference to all those specific things that are susceptible of private appropriation and enjoyment as well as in its juridical or legal sense of a bundle of rights which the owner can exercise under the municipal law with respect to the user and enjoyment of those things to the exclusion of all others.

This wide connotation of the term makes it sometimes difficult to determine whether an impugned law is a deprivation of property within the meaning of Article 31(2), for, any restriction imposed on the use and enjoyment of property can be regarded as a "deprivation" of one or more of the rights theretofore exercised by the owner.

In the above case S.R. Das, J. was inclined to approve the view

that the ownership of a thing, tangible or intangible, was made up of the rights, powers, privileges and immunities concerning that thing and that the property was not the thing itself but consisted of these rights, powers, privileges and immunities.

The subject again came up for review by the Supreme Court in the well-known case of '' Dwarkadas Shrinivas of Bombay Vs. The Sholapur Spinning and Weaving Co. Ltd. and Others, and in that decision the law bearing on fundamental rights under the heading "Right of Property" was comprehensively examined by their Lordships.

A perusal of the judgment furnishes highly instructive exposition of the various concepts involved. It was there held that a contract or agreement which a person may have with a company as share-holder and which may be cancelled by the Directors in exercise of powers under a legislation will undoubtedly be "property" within the meaning of the two Articles 19(1)(f) and 31 of the Constitution, and that being so the legislation in question had to provide for payment of compensation.

The word "property" as used in the said (sic) should be accepted with wide connotation (sic) so interpreted should be extended to these well recognised types of interest which have the insignia or characteristic of property. Thus understood it seems to me that the word property as used in the Articles of the Constitution would include, generally speaking, the interest claimed by the petitioner.

The fact that by virtue of the transfers the petitioner''s ancestors acquired a right to hold these estates free from payment of the Government revenue for ever constituted an important attribute of ownership and should be regarded as a property right. I have no doubt that the term "property" bore the same meaning in the context of Section 299 of the last Constitution Act. It appears to me therefore that the decision in ILR (1953) 5 Assam 200 (A) requires modification to that extent.

The question still remains whether it is such a property right as may be said to be capable of acquisition and being taken possession of within the meaning of Article 31(2) of the Constitution HO as to necessitate provision for payment of compensation and in the absence of which the legislation should be held void.

Article 31(2) presupposes that the property or the interest in property should be of that nature; in other words, that it should be capable of acquisition and being taken possession of. If it is not so capable, then evidently a legislation affecting such interest, although it may amount to deprivation of some interest in property, would not come within the scope of Clause (2) of that Article.

The conveyance of the right, to hold the property exempt from the payment of revenue for ever, was evidently recognised both by the then Government of India Act as also by the present Constitution as the relevant legislative items mentioned in List II of their respective Schedules themselves indicate. But can it be said that the owner of the property could part with this right alone independently of the corpus, or that this right could alone be acquired or taken possession of by some person without the property itself?

The answer to the question is obviously in the negative. It is true that so long as the properties are held by the owner, the entire fee-simple right including the one in claim continues to vest in him and constitutes an important interest in the property; but this interest cannot by itself be alienated by the owner without the corpus of the estate or a part of the estate itself.

Therefore, it would be difficult to assume that this interest was capable of being acquired or taken possession of within the meaning of Article 31(2) of the Constitution. The legislation now impugned before us may have the effect of abridging the right of the owner in this respect, but does not in any manner otherwise affect his ownership of the property which the owner continues to enjoy and in which he has all the other rights of heritability and alienation.

The usufruct or enjoyment of the property has not been affected in any manner. I recognise that the deprivation may even materially affect the value of the property. The fact that the petitioner is now liable to pay Government revenue, whereas previously he was not so liable under a definite contract is bound to reflect adversely on the value of the property because of the deprivation of this interest.

But that in my opinion, is not sufficient to attract the protection of Article 31(2) of the Constitution. Patanjali Sastri, C.J. observed in the above case of ''State of West Bengal v. Subodh Gopal Bose'' (B) that:

Broadly speaking, it may be said that an abridgment would be so substantial as to amount to a deprivation within the meaning of Article 31 if, in effect, it withheld the property from the possession and enjoyment of the owner, or seriously impaired its use and enjoyment by him, or materially reduced its value.

and in dealing with the same problem discussed in that case S.R. Das, J. pointed out as follows:

Assuming that the right to annul under-tenure and to eject under-tenants and the decree for ejectment come within the term "property", as used in Article 31(2) as to which I have considerable doubts, the question at once arises whether they have been taken possession of or acquired under the impugned Act. The Touzi still remains the property of the respondent Subodh Gopal Bose.

He can realise rents and exercise all acts of ownership except that he cannot exercise the right to annul the under-tenures or eject any under-tenants or execute the decree he has obtained. But have these last mentioned rights been taken possession'' of or acquired by the State within the meaning of Article 31(2)?

The other learned Judges expressed themselves similarly, on this point. Jagannadhadas, J. also held; that.

in the context of Article 31(2), as in the cognate context of Article 19(1)(f)--the connotation of the word ''property'' is limited by the accompanying words ''acquisition'' and ''taken possession of.

It must be, therefore, a substantial abridgment of right or deprivation of property which is the sine qua non for payment of compensation under Article 31(2) and not deprivation of the nature complained of in the present case. The observations of Ghulam Hussain, J. in the Sholapur case'' (C) elucidate the same principle. As I understand it, the test is whether the interference amounts to substantial interference with the use and enjoyment of property and tantamounts to acquisition and taking possession thereof.

I must, therefore, hold that although the interest in question was an interest in property it is not such a deprivation of interest in property as would fall within the ambit of Article 31(2) of the Constitution.

In every other respect the petitioner is in possession and enjoyment of the usufruct of the property and exercises all other acts of ownership in the estates. In the earlier case of Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, the Supreme, Court took the same view of these relevant expression in Article 31(2) of the Constitution.

I am also not prepared to hold that it is unreasonable interference with the right to hold property within the meaning of Article 19(1)(f) of the Constitution.

The right of the State to impose land revenue is a sovereign right vested in it by virtue of the Constitution. The State had of course surrendered the right of. imposing land revenue on the property in question by virtue of the transfers or grants which it made in favour of the petitioner''s ancestor.

Nevertheless, the Legislature of the State, if otherwise competent to do so, had power to impose land revenue on the estates. This imposition would not amount to any derogation from the grants, because the executive Government of the country could not by its administrative acts impose any fetters on the legislative powers of the State.

In this, context the observations of Lux-moore J. in--''North Charterland Exploration Co.'' (1910) Ltd. v. The King'' 1931 1 Ch. 169 at p 187 (E) are significant.

In my judgment the Crown cannot deprive itself of or fetter its legislative authority by the mere fact that in, the exercise of is prerogative it makes a grant of land within the territory over which such legislative authority exists.

The above doctrine was adopted by the Privy Council in AIR 1946 127 (Privy Council) where it was held that to regulate the relations of landlord and tenant and thereby diminish rights, hither to exercised by the landlord in connection with the land, was something different from compulsory acquisition of land as contemplated by Section 299 Government of India Act.

What is true of the legislative powers of the Crown is equally true of the legislative powers of the Provincial or State Legislature which is sovereign in its own sphere of legislative activity, subject to constitutional limitations, if any. The limitation here is that if the State; purports to deprive a person of his property it can only do so under authority of law and if the deprivation amounts to acquisition or taking possession of that property it must be for public purpose and must provide for payment of compensation.

The imposition of land revenue ''per se'' is not deprivation of property and although in the circumstances of this case, I have held that in imposing land revenue the State does affect a valuable interest of ownership or even a right in property, it is not any and every deprivation of property or interest therein which falls within the ambit of Clause (2) of Article 31 of the Constitution. The deprivation must be of a material and substantial nature interfering with the rights of enjoyment and possession thereof. It is not possible to attempt any general enunciation or propose any inflexible rule. In each case the provisions of the particular law in question will have to be carefully scutinised in order to determine the effect of the law upon the property or the rights of property enjoyed therein.

The consideration of the ultimate aim, immediate purpose and the mode and manner of acquisition or taking possession, and the duration for which it is to last and the effect thereof on the lights of persons dispossessed and other like elements, must all go to the formation of the judicial verdict.

If it were merely a case of imposition of land revenue, the matter would have presented no difficulty and the legislation could be upheld straightway as such without any further discussion.

But the position has been complicated by the fact that Government by themselves surrendered for consideration their right to impose revenue for all times to come. Such an alienation created in my opinion a right of property to the transferee and a legislation which purported to extinguish such a right by levying afresh impositions of land revenue in their State was bound to give rise to constitutional questions of some importance and the problem had to be faced whether the legislation did not purport to take away a valuable right of the petitioner which constituted his interest in property and if so whether it was necessary to provide for compensation for the same.

The case of AIR 1946 127 (Privy Council) was simply a case of regulation of rights of landlords and tenants; so was the case of The State of West Bengal Vs. Subodh Gopal Bose and Others, It is quite clear that in those cases the Government or the State had not acquired any right or interest in property or taken possession of the same but had brought forward legislations affecting the right of landlords in relation to their tenants.

Such legislations could not be defeated on the ground of there being no provision for compensation for the deprivation of their rights. Cases which dealt purely with taxation measures also could not be of much assistance in solving the points raised. Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, and Dwarkadas Shrinivas of Bombay Vs. The Sholapur Spinning and Weaving Co. Ltd. and Others, on facts, also stood on a different footing, though as I have shown the observations of their Lordships, in some of these judgments, in elucidation of the legal concepts involved throw a flood of light on the problem and help in coming Jo a right decision in the matter.

The case which makes the nearest approach to the facts of the case in hand is the decision in Lal Singh v. C P. and Berar'' AIR 1944 PC 62 (G). The appellant in that case was a Zamindar holding three estates in the Central Provinces, known as Kamtha, Wadad and Deori-Kishori. These estates were liable to periodical assessments of ''takoli''. Such assessments were made as part and parcel of the periodical settlement of land revenue for the areas in which the estates were situate.

Under the provisions of the Central Provinces Land Revenue Act, the estates were settled with the appellant; the Kabuliyats in respect of the Kamtha and Wadad estates purported to make the assessment binding for the period of "19 years, that is from 1st July 1919 A.D. up to 30th June 1938, and thereafter till fresh settlement is made", whereas the Kabuliyat and order in respect of the Deori-Kishori estate were for the period of 19 years from 1st July 1920 to 30th June 1939 and thereafter till a fresh settlement was made.

The law provided that during the period of the settlement the proprietors were bound to pay the land revenue assessed accordingly, and if after the expiry of such period no new assessment was made at the rates already assessed, until the assessments were altered. Therefore under the law and by virtue of the settlements the proprietors were entitled to hold the estates at the rates of assessments payable during the period.

On 16-1-1939 a new Act came into operation which replaced or substantially amended the earlier Act. Under this Act, the land revenue payable to Government in respect of the estates in question was enhanced with effect from 1-7-1938. This was evidently during the period of subsistence of the earlier assessment in respect of the state of Deori-Kishori which operated till the end of June 1939.

It was contended that the Act in question extinguished or deprived the appellant of his contractual as well as statutory rights in his Zamindaris and was thus an expropriation or acquisition of his rights as contemplated by Section 299 Government of India Act, 1935. This contention of the appellant was rejected by the Court on the ground that there was nothing in the Acts or documents referred to (viz. the leases of settlement).

which amounted to any contractual or statutory rights of the appellant which could not at any time be varied, suspended or repealed by enactment of the competent legislature.

Their Lordships further held that mere increase of any assessment of land revenue did not involve any acquisition of land or any rights in or over Immovable property. The point to note, however, is that there was no contractual right in that case which could be sustained or recognised in the eye of law. The right to hold a particular assessment arose under a certain statute and a competent Legislature could, therefore, alter the statute so as to augment the assessment of revenue.

There was no question there of the appellant having acquired the right under a valid deed of transfer from the State itself to hold his property free from the payment of land revenue for all times to come. My attention has also been drawn to a very recent decision of the Supreme Court in The Collector of Bombay Vs. Nusserwanji Rattanji Mistri and Others, . There also the deed of sale in favour of the respondents by the appellant, the Collector of Bombay, after the land acquisition proceedings, did not impose any limitation on the right of the Crown, or, for the matter of that, the Government, to assess the lands. There was no recital in the deed that the purchaser was entitled to hold the land free of assessment.

On the other hand the deed expressly provided that the properties would be subject to the payment, inter alia, of all assessments whatsoever, then or thereafter payable in respect thereof. This case is also clearly distinguishable on that account. I cannot help quoting at this place the following observations of Das, J. in ''Collector of Bombay v. Municipal Corporation of the City of Bombay'', AIR 1952 SC 469 at p. 473 (I) which has been referred to in the decision aforesaid.

The immunity from the liability to pay rent is just as much an integral part or an in sever able incident of the title acquired as is the obligation to hold the land for the purposes of a market and for no other purpose.

If at all, these cases, to my mind, support the conclusion at which I have arrived that the interest claimed by the petitioner in this case is an interest in Immovable property, though for the reasons already discussed it does not strictly come within the purview of those Articles of the Constitution on which the petitioner relies for his contention that the Act impugned is void.

In the view which I have taken of the matter, I consider it unnecessary to enter into a discussion of the other points raised by the learned Advocate General namely that the legislation impugned is merely a taxation measure and was subject to the only limitation provided by Article 265 of the Constitution; and that in any case the rights of the petitioner, if any, having been taken away long prior to the present Constitution, he having also submitted to the measure and having paid land revenue as demanded ever since, it was no longer open to him to contest the validity of the measure subsequently after the Constitution came into force.

I also consider it unnecessary to refer to the cases cited by the parties on these points. I have read the judgment prepared by my learned brother Ram Labhaya, J. and I agree with his conclusions that the legislation should be held to be valid, and that it cannot be assailed on the ground that it contravenes the provisions of Articles 19(1)(f) and 31(2) of the Constitution or those of Section 299, Government of India Act. The application, therefore, fails and must be dismissed.

There will be no order for the costs of this application.

Ram Labhaya, J.

This is a petition under Article 226 of the Constitution of India for a writ in the nature of Mandamus or in the alternative for a writ of Certiorari.

The facts leading to this petition are as follows: The petitioner Girijananda Chaudhury is the owner of the three Revenue Free'' estates, namely, the Green Wood Fee Simple grant, the Bhogargaon Fee Simple grant and the Odal Bakara Fee Simple Grant in Beltola Mouza of Kamrup District. His case is that these estates were sold by the Government of India in 1874 for valuable consideration in favour of his predecessor-in-interest, and the Deputy Commissioner of Kamrup on behalf of the Secretary of State for India in Council executed registered deeds in 1874 acquitting, releasing and for ever discharging all the Jands of the said estates from the payment of all Government Revenue accruing or which but for the aforesaid deeds would have accrued.

These lands were to be held thereafter by the owner for the time being free from all Government revenue but subject to all general taxes and local rates then or thereafter to be imposed by law in respect thereof and to all claims of the Government of India or the Government of Bengal in respect of such lands other than the claims of Government land revenue. He has, in support of his statement filed true copies of the sale deeds executed in 1874.

He has further averred that since the execution of these deeds the lands in question were held and enjoyed without any payment of land revenue till 1948 when the Assam Assessment of Revenue Free Waste Land Grants Act, 1948 (Assam, Act 24 of 1948) was passed. Section 3 of the Act-provides that

notwithstanding anything contained in the Assam Land and Revenue Regulation, 1886, or in any other law for the time being in force, or in any contrast, and notwithstanding any express exemption from assessment under the terms of any Grant a Revenue Free Waste Land or Grant shall be deemed liable to assessment to revenue on and from 1-4-1948, and such Grant be liable to the payment of revenue, in addition to the local rates and local cesses, if any, assessed thereon, as follows:...

The provisions that follow provide for the rates at which revenue'' was to be assessed for the years 1948-49 and 1949-50. For the year 1950-51 and for subsequent years the fixation of rates was left to the State Government. There are three provisos to the section. It is not necessary to reproduce these for the purposes of this case.

In pursuance of the provisions contained in this Act the petitioner''s estates were assessed to land revenue for years 1949-50, 1950-51 and 1951-52.The revenue assessed was paid by him. He again received a notice from the Additional Deputy Commissioner, Kamrup for payment of land revenue for the year 1359 B.S. and distress warrants have been issued for the realisation of the unpaid revenue.

The petitioner has challenged the constitutional validity of the Assam Act 24 of 1948 and the legality of the assessment made thereunder, on the ground of the repugnancy of the Act to Section 299 of the Government of India Act and Article 31(2) of the Constitution.

Facts stated above have not been disputed by the learned Advocate General. He has contended that this Act was passed in 1948 long before the Constitution came into force. The Act was not repugnant to the provisions contained in Section 299 of the Government of India Act which was then applicable. The Act, therefore, was valid immediately before the Constitution came into force. The Constitution has no retrospective effect and even if retrospective effect is given to it, the law does not offend against the provisions contained in Article 31(2) of the Constitution.

Sub-section (2) of Section 299 of the Government of India Act, 1935 provided that

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

The clause in terms applies to land and commercial and industrial undertakings. Land for the purposes of Sub-section (2) includes Immovable property of every kind and any right in or over-such property.

Clause 1 of Article 31 of the Constitution; of India provides that "no person shall be deprived of his property save by authority of law". It is limited to deprivation of property and would cover within its scope everything that may be construed as property for the purposes of this clause. Clause (2) of the Article deals with acquisition. It provides that

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

This clause is wider in scope. It requires public purpose as a justifying circumstance not only where property movable or immovable is acquired but also where it is taken possession of Section 299 of the Government of India Act, 1935 was limited to acquisition. Under Article 31(2) even the taking of possession is placed on the same level with acquisition. It also applies to movable property of all description, while Section 299 of the Government of India Act was limited to commercial or industrial undertaking or any interests in them or in company''s owning any commercial or industrial undertaking apart from land.

Mr. Ahmed''s contention is that the revival of the right to, assess the land by the impugned Act which the Government had parted with in 1874 amounts to acquisition of a right in property which the petitioner had enjoyed for a long time The absence of a provision for payment of compensation and also of any public purpose for the acquisition makes the Act repugnant to the Constitution Act of 1935 and also to Article 31(2) of the Constitution. It would not be necessary to ascertain whether the impugned Act has any public-purpose to justify its validity, for, if there has been any acquisition of property belonging to the-petitioner, Section 3 of the impugned Act would be hit by both Section 299 of the Government of India Act,. 1935 and Clause (2) of Article 31 of the Constitution as it obviously does not make any provision for compensation.

The only question that arises for consideration, therefore, is whether any property belonging to the petitioner has been acquired or taken possession of and the case falls within the prohibition contained in Section 299 of the Government of India Act, 1935 or in Clause (2) of Article 31 of the Constitution.

It is necessary first to examine the implications of the expression ''property''. Acquisition is possible only if we have ''property'' within the meaning of the expression which it bears for the purposes of both, Section 299 and Article 31(2). If it is possible to find that the petitioner has been deprived of property or of any right in it, will be necessary to consider whether it has been the subject-matter of acquisition.

The history of the land tenures may be briefly traced in order to discover the nature of the right involved in the controversy. Tea was discovered in Assam in 1826. For about a century after its discovery, the policy of the Government has been to encourage the opening up of thinly populated areas of the Province by offer of lands on very generous terms for purposes of tea or coffee cultivation commonly known as special cultivation as distinguished from the ordinary cultivation of staple crops.

The first Special Grants Rules were made in March, 1838. They related to Assam proper only. Under these rules no grants could be made of less than 100 acres or of more than 10,000 acres. One-fourth of the entire area was to be in cultivation by the expiration of the fifth year from the date of grant, on failure of which the whole grant was liable to resumption. One-fourth of the grant was to be held in perpetuity revenue-free.

The rest of the area was liable to assessment in conformity with terms of the grant. The second set of rules came in October, 1854. They are known as the Old Assam Rules. Under these rules the grant could not be of less than 500 acres and one-fourth of the grant was to be exempt from assessment in perpetuity. The rest of the area was subject to assessment in accordance with the terms of the grant. A third set of rules was issued on 30-8-1862.

These rules provided for the disposal of the land at fixed rates ranging from Rs. 2-8 to Rs. 5/- per acre. The rules of August 1863 provided that the lot should be put up to auction. Grants were to be limited except under special circumstances to an area of 3,000 acres. Revised Fee-simple Rules were issued in February 1874. These rules raised the upset price of land sold to Rs. 8 per acre.

In 1876 again new rules were issued under which the land was leased for thirty years at progressive rates and the lease was put up to sale by auction but only among the applicants. When the Land Revenue Regulation was passed these rules were revised and re-issued under Sections 12 and 29. They remained in force for a long time but by reason of the continuing extension of the cultivation the need for use or application of these rules steadily declined.

The estates in question were sold in 1874. The documents of title provide that the grantee (now the petitioner) could hold the estates as owner, free from all Government revenue but subject to general and local taxes etc.

The Districts of Assam including Kamrup District were ceded to the East India Company in 1826. The theory that initially found favour with the British administrators was that the soil vested in the Sovereign. It was thought to be the Sovereign''s absolute property and the raiyats who cultivated it had no ownership rights. Cultivated land was assessed. For the first few years of the British rule the old system of administration continued in the lower Districts of Assam.

In 1832 for the first time arrangements were made to introduce a system of land assessment in the plains in place of the old poll-tax. Later on between 1861 and 1867 the question of giving cultivators a permanent, heritable and transferable right in their lands formed the subject-matter of discussion. The Bengal Government finally decided in 1867 with the approval of the Government of India that in Assam, as then constituted, it was

"in every way a preferable course to give the actual occupant of the soil as secure a tenure as can be conferred upon him, subject to the payment of revenue to the Government at rates-fixed for long periods, and to preserve a clear-distinction between the rights and obligations of proprietorship and the duties of fiscal and official administration". (Vide ''Introduction" to Assam Land and Revenue Manual Vol. I, sixth edition at pages xli and xlii).

The Government of India further suggested) that permanent occupiers of the soil should be declared to be proprietors of all lands subject of course to the fair revenue. In consequence of" the decision the first Settlement Rules of 1870 were framed. These rules embody the first public declaration on the part of the Government of the rights in land possessed by the cultivators of the soil. Government recognized a permanent,, and transferable right in land (subject to registration of all transfers and successions) as attaching to all persons who took periodic leases from Government for lands held permanently, though no such rights were conferred in the case of those who took only annual leases.

Upto 1887 settlements were made under the Settlement Rules of 1870. Then came the Assam Land and Revenue Regulation of 1886. It deals mainly with land and revenue. The word ''estate'' has been defined in Section 3(b) of the Regulation. The expression includes among other lands any estate which is for the time being entered in the Deputy Commissioner''s register of revenue free estates as a separate holding.

Fee simple grants fall within the ambit of this expression. The estates in question are estates for the purposes of the Regulation. The expression ''proprietor'' has also been defined. It means the owner of any estate permanently settled or entered, on the Deputy Commissioner''s register of revenue free estates. The owner of a permanently settled estate as also the owner of a revenue free estate are proprietors.

It would follow that liability to pay revenue in a permanently-settled estate does not detract from ownership. The land though subject to payment of revenue, vests in the holder as a proprietor. ''Land revenue'' according to the Regulation means any revenue assessed by Government on an estate and includes any tax assessed in lieu of land revenue.

Land revenue thus is convertible into any tax. This convertibility is suggestive of an affinity in the nature of the land revenue and other taxes that may be levied in lieu thereof. Seen in the light of the other provisions of the Regulation referred to above the definition supports the view that the right of the Government to assess revenue is distinct from the ownership of an estate. It is no part of those constituent rights that go to constitute ownership in an estate.

Chapter II of the Land Revenue Regulation deals with rights over the land. It applies to all land except land included in any forest constituted a reserved forest under the law for the time being in force and any land which the Provincial Government may by notification, except from the operation of the Regulation. Section 6 enumerates the rights which may be acquired over the land.

It provides that no right of any description shall be deemed to have been, or shall be, acquired by any person over any land to which this-Chapter applies, except the following:

(a) rights of proprietors, landholders and settlement-holders other than landholders as defined in this Regulation, and other rights acquired in the manner provided by this Regulation;

(b) rights legally derived from any right mentioned in Clause (a);

(c) rights acquired under Sections 26 and 28, Limitation Act;

(d)rights acquired by any person as tenant under the Rent Law for the time being in force. The proviso to this section is important. It directs that nothing in this section shall be held to derogate from the terms of any lease granted by or on behalf; of the Crown. The proprietors were permitted by Section 7 to have the same rights and enjoy the same privileges in respect of lands included in their estates as they had at the commencement of this Regulation.

A landholder under the Regulation has a permanent, heritable and transferable right of use and. occupancy in his land, subject (1) to the payment of all revenue, taxes, cases and rates from time to time legally assessed or imposed in respect of the land, (2) the reservation in favour of the Crown of all quarries and of all mines, minerals and mineral oils, and of all buried treasures, with full liberty to search for and work the same, paying to the land-holder only compensation for the. surface damage as estimated by the Deputy Commissioner, and (3) the special conditions of any, engagement into which the land-holder may have entered with the Crown.

A settlement-holder, who is not a landholder, has no rights in the land held by him beyond such as are expressed in his settlement lease.

The proprietors and landholders possess and enjoy full rights of ownership in respect of the land in their hands. They have permanent rights in it These lights are both heritable and transferable.

It is worthy of note that the expression ''proprietor'' includes persons who hold land subject to the payment of revenue and also persons whose lands are entered on the Deputy Commissioner''s register of revenue-free estates, and this brings into bold relief the fact that the Regulation treats ownership of land as distinct from the obligation of the owner or the occupier to pay land, revenue assessed on it under the law.

Where the land like forests or waste lands vests completely in the State, no question of its liability to revenue arises. When the Government parted with ownership or recognized existing ownership. It normally exercises its statutory right of assessing revenue on it except in cases where the obligation was expressly waived. But there can be no mistaking the fact that while ownership resides in the individual owner or occupier the right to assess revenue is in the Government and is, no more than an obligation on the owner or occupier of the land. This is shown clearly by the incidents of the tenures of proprietors and landholders under the Regulation.

This view is considerably strengthened by the provisions contained in Chapter III which relate to settlement and resumption. Having dealt with the rights over the land in Chapter II the Regulation provides for settlements in this chapter (Chapter III).

Part C of this Chapter deals with the assessment of land. Section 28 of the Chapter provides that all land shall be deemed liable to be assessed to revenue except (a) land for the time being exempt from assessment under the express terms of any grant made or confirmed by or on behalf of, the Crown (b) land in respect of which a tax is for the time being imposed u/s 47.

The proviso thereto lays down in Clause (3) that nothing in this section shall affect any title to hold land revenue-free if the title existed immediately before the commencement of this Regulation and was valid under the law then in force. It is the provision contained in this section which creates the liability of land to assessment. But this liability obviously can never be an ingredient of the bundle of rights that go to make ownership in law.

Clause 3 of the proviso covers the case of the petitioner. The land was held revenue-free before the commencement of the Regulation, under a valid title. The grant was made under the rules of the Government for the grant of land for special cultivation. The Regulation in 1886, therefore recognized the title of the holder of the land to hold it revenue-free.

The rights under the grant were given legislative recognition. If this exemption had not been there the land would have become liable to assessment u/s 28.

The terms of the grant itself afford intrinsic evidence that exemption from payment of land revenue is no part of the bundle of rights that go to make what may be described as ownership or full proprietary rights in land. Even with the full proprietary rights the liability to pay revenue can exist as in the case of permanently settled land. Revenue-free grants were made only to encourage special cultivation.

Rules before 1874 permitted grants in which only a part of the land could be held revenue-free. The rules as well as the regulations consistently maintained a clear distinction between rights in land and rights of the Government to assess land revenue on them. This distinction was in pursuance of a decision arrived at as early as 1867 so far as Assam is concerned.

It is true that the Government at the time, of giving the land for special cultivation also parted with its right to recover land revenue from the land by the grants in question, but it requires no great subtlety of the mind to discover that the deeds evidencing the grants dealt with two distinct rights. It was therefore, felt necessary to state that the land could be held revenue free.

If freedom from liability to pay revenue was part of the ownership rights this clause would not have been necessary. In fact revenue and other taxes are placed under a separate head and the provision was that the land was free from revenue but it would be subject to all other general taxes. The words of the grant are significant.

The Government acquitted, released and for ever discharged the land from the payment of all Government land revenue and ''to the intent that the same land may hereafter be ''held by the owner'' though for the time being for ever free from all Government land revenue but subject to general taxes'' etc. The grants relied on do not in terms confer or convey ownership in land.

The right of ownership in land in the grantee is merely recognized. Exemption from revenue is guaranteed & land revenue is distinguished from general taxes & local rates. A clear distinction runs through the tenor of the grants between the rights of ownership in the land and the right of the Government to assess land revenue. The expression ''land revenue'' in the setting in which it occurs seems to have been treated as a special tax distinguishable from general taxes and local rates.

The result is that the land which was or which might have been subject to payment of land revenue was allowed to be held revenue free or free from the obligation that attached to other lands similarly owned. The liability to payment of revenue which is statutory in character is distinct from such rights in land which taken together go to make ownership, though some of them may also have all the attributes of corporeal property.

One is irresistibly led to this conclusion from the terms of the grant and the provisions contained in the Land and Revenue Regulation. The decision arrived at in 1867 was fully kept in view and given effect to both in the grants and in the Regulation itself and the right of the Government to assess the land to revenue was kept distinct from the ownership of the land itself.

Mr. Ahmed observed that land revenue was payment for the use of land vesting in the State and what the cultivator or the occupier pays for the use of land though called revenue, is in reality rent. It is not a tax. He advanced this contention in answer to the claim of the learned. Advocate General that land revenue was a tax and could not be treated as property at all. Mr. Ahmed urged that the payment of revenue should not be confused with taxes.

He has referred us to no authority for this broad proposition. If correct its effects would be far reaching. The claim put forward however is not new or strange. It can be traced to an ancient English doctrine according to which there was no ownership of land except in the Crown itself. The fee simple of land was according to this theory not more than a mere encumbrance of the ownership of the Crown although this economic theory has ceased to be of any practical importance even in English.

Before 1926 it was responsible for some distinction between the ''escheat'' and the taking of goods as ''bona vacantia''. Even that distinction has been abolished by the Administration of Estates Act 1925 which provides that on the death of a person intestate and without next-of-kin entitled under the new rules of decent, his land shall not escheat but shall go to the Crown ''bona vacantia''.

The fee simple of land at present is ownership of land and the Government has only a contingent right of succession to an intestate ownership. The State has no right in land. There is no right while the owner is holding it, vide Salmond''s Jurisprudence, tenth edition, page 427. It is under the influence of this theory now discarded that British administrators had on certain occasions and in certain territories put forward the claim that ownership of land vested in, the Crown.

The doctrine did not gain universal acceptance at any time in India. There was however divergence of opinion amongst administrators and economists on this point.

The question was examined by the Taxation Enquiry Committee under the following needs:

(1) Did the State claim exclusive proprietary rights over the land?

(a) Under Hindu Rule (b) Under Muslim rule.

(2) Did the British Government succeed to any such rights?

(3) Is the State now the proprietor of the land held?

(a) Zamindari or (b) Ryotwari.

(4) If not, are the Zamindars and Ryots respectively the possessors of the proprietary right subject to the payment of* land revenue?

(5) Should the land revenue be described as a tax or rent?

As regards the first two points the Taxation Enquiry Committee were unanimously of opinion that under both Hindu and Muslim Rule, the State never claimed the absolute or exclusive ownership of the land and definitely recognized the existence of private property in it. The British Government could not be said to have succeeded to any such right. The Bengal Land Revenue Commission (1940) also found that though the State was regarded theoretically in parts of India as the supreme owner of the land, it never in practice claimed any actual proprietary rights in the soil.

Its claim had been limited to a share of the produce. The Committee also agreed that the land revenue should be regarded as tax in considering the incidence of taxation vide Jathar and Beri''s ''Indian Economics pages 372, 377, Vol. I.

The claims put forward by the British Government were not quite consistent or uniform even in theory. In actual practice the general trend of their policy was towards admitting private ownership in land. Referring to the cultivated land in villages and estates (not the waste land and lands of which the Government are admittedly the immediate owners), Baden-Powell observed that

the British Government everywhere conferred or recognised a private right in land, and in large areas of the country (Bengal, Oudh, the whole of Northern India for example) they expressly declared the proprietary right of the landlords and the villages owners.

Proprietary rights were recognized in Assam also. The controversy in the matter has been of an academical nature. It was a ''profitless war of words''. The Government though appearing to put its faith in the theory of State ownership was actually pursuing the policy laid down after careful deliberation, that it was expedient to develop a strong sense of individual ownership and did nothing to disturb it.

When a cultivator or an occupier is free to sell, lease, mortgage and inherit landed property rights which the most extreme advocates of State ownership in India were not prepared to disturb--the idea of Government ownership loses all practical importance it is reduced to a mere name. I am persuaded to believe that there is now a general consensus of opinion that land revenue should be regarded as a tax.

The State in India has been receiving from the occupier such portion of the surplus profit after defraying the expenses of cultivation as it has found possible or expedient to take. The land revenue is a portion of the surplus. On these facts it is difficult to say that land revenue is anything but a tax. It is merely a portion of the profits of agriculture compulsorily appropriated by the State without any consideration.

These facts in jurisprudence would satisfy the requirements of a tax which is no more than a compulsory exaction of money by the State in the exercise of its sovereign power for public purposes. Any chunk or slice cut off from profits of an individual is a tax a compulsory deduction, from salary, from the profits of business or the income of property is a tax. All bits of income or profit taken by the State in the exercise of its sovereign powers are in reality taxes, no matter under what name they appear.

I have shown above by reference to the provisions contained in the Land Revenue Regulation that a proprietor of land under the Regulation is such a complete owner of his land that no part of his rights of ownership remains in the Government. In other words so far as he is concerned if Government ever had any rights of ownership they were surrendered. It is, therefore, not necessary to base the decision on the point on the views of economists or even on the opinion-expressed by the Taxation Enquiry Committee or the Bengal Land Revenue Commission.

The provisions contained in the Regulation afford ample justification for the view that proprietors under the Land Revenue Regulation are full and absolute owners of their land and their liability to pay revenue does not arise from the fact that they cultivate or utilise Government land. The revenue that they pay is part of a statutory liability and the State imposes it in the exercise of its sovereign right of taxing properties privately owned.

Mr. Ahmed has referred us to some important decisions of the Supreme Court in support of the view that the expression ''property'' in the relevant provisions of the Government of India Act, 1935 and the Constitution should receive a very wide connotation. The question in Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, was whether by virtue of the impugned legislation any property or interest of the petitioner himself, as a share-holder of the company, had been taken possession of by the State.

The controversy centred round the point whether the share-holder had been dispossessed of his rights. The same question arose in AIR 1954 SO 119 (C). This time it was raised by a holder of preference shares on behalf of himself and others. In this case certain observations were made by Ghulam Hasan J. (page 139). These observations bear on the connotation of the expression ''property''. They are as follows:

Having regard to the setting in which Article 31 is placed, the word ''property'' used in the Article must be construed in the widest sense as connoting a bundle of rights exercisable by the owner in respect thereof and embracing within its purview both corporeal and incorporeal rights. The word ''property'' is not denned in the Constitution and there is no good reason to restrict its meaning.

Whether the facts in the given case amount for deprivation of property within the meaning of Article 31 will depend upon the circumstances of each case and it is not possible, in the nature of things, to lay down any inflexible test which may be universally applicable. When it can be shown that the Statute sub-statically interferes with the right of enjoyment of property, it will, in my opinion, be hit by Article 31(2) and declared vold, unless compensation is provided.

So far as the meaning of the expression ''property is concerned the learned Judge was definitely of opinion that the word ''property'' included both corporeal and incorporeal rights and that the expression was to be given its widest amplitude as importing a bundle of rights exercisable by the owner thereof.

Mukherjee, J. as he then was, elucidated the meaning--of the expression ''property'' in The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., in the following terms'':

The word ''property'' as used in Article 19(1) (f) of the Constitution, should be given a liberal and wide connotation and so interpreted, should be extended to those well recognised types of interest which have the insignia or characteristics; of proprietary right. Thus, Article 19(1)(f) applies equally to concrete as well as abstract right of property. The ingredients of both office and; property, of duties and personal interest are-blended together in the rights of a Mahant.

The Mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office. To take away this beneficial interest and leave him merely to the discharge of his duties will be to destroy his character as a Mahant altogether.

We have also been referred to some decisions from some of the High Courts. Of these decisions-- Dwarkadas Shrinivas Vs. The Sholapur Spg. and Wvg. Co. Ltd. and Others, is important. Chief Justice Chagla gave his interpretation of the expression ''property'' in this case. He observed that

when we find in Article 19(1)(f) the right to acquire, hold and dispose of property, ''property'' can only mean all the attributes and indicia which result in the legal conception of property. The right of dominion, the right of possession, the right of control, would all be included in the expression ''property''. One does not speak of acquiring, holding and disposing of one individual attribute of property.

One acquires, holds, or disposes of all those qualities which together and in combination constitute ''property'' in law. If that be so, then in Article 31(2) the same meaning and intendment must be given to the expression ''property''. Therefore, it is only when the State is acquiring front a subject or taking possession of from a subject property in this sense of the term that there is-an obligation upon it to pay compensation.... In our opinion, it is also necessary that the property referred to in Article 31(2) must be property which is capable of being acquired or taken possession of.

In Kidangazhi Manakkal Narayanan Nambudiripad and Others Vs. State of Madras and Another, trusteeship where it was hereditary was regarded as property. In Venkat Munga Bai v. State of Hyderabad'' (S) AIR 1955 Hyd 44 (M) resumption of ''rusums'' which the petitioner was entitled to was treated as acquisition of property. The ''rusums'' entitled the petitioner to periodical cash payments under grants which had become irresumable on account of political changes.

There was thus in the petitioner an absolute right to recurring payments by the Government, The right resembled an annuity. It was held to be movable property. The loss to the petitioner by the resumption of the grants was the gain of the Government. Resumption was regarded as acquisition of movable property. But the learned Judges did not lay down any general proposition. This case and the Madras case referred to above are both distinguishable on facts.

The two decisions of the Supreme Court lay down one general rule to the effect that the expression ''property'' should receive a very wide connotation. There is no justification for giving it any limited or narrow meaning. Ownership of property in a narrow sense connotes not owning; acquiring or transferring rights in property but the ownership of movable or immovable property itself. This is corporeal ownership.

Incorporeal properties consist of patents, copyrights, trade marks, leases, servitudes, securities, easements etc. The owner of corporeal property is one who owns a right to the totality of the uses of the things. No person having merely a temporary right to the use of a thing can be the owner of the thing. The owner should have the right to all lawful uses. The right should be general. There should be no encumbrance on it.

It should be also of a permanent character and this permanency brings in also the attribute of heritability. The right of ownership is essentially heritable. It survives its owner for the time being. It is not extinguished by death. It follows that the right of ownership in a material thing should be general, permanent, heritable and transferable. The owner should have the right to all conceivable uses of it.

The rights in land or property viz. incorporeal rights, should possess all the attributes of property before they can attract the application of Article 31(2). They have to be capable of possession or acquisition, otherwise Article 31(2) can-not apply.

In short as observed by Mukherjea J. in AIR 1954 SC 252 (J) the expression property would extend to all well-recognized types of interests which have the insignia or characteristics of proprietary rights. The same view is expressed in slightly different terms by Ghulam Hasan, J. Chagla, C.J. also gave it the same meaning. It may now be regarded as settled law that the right in property to which Article 31(2) of the Constitution or Section 299 of the Government of India Act 1935 may be applied should possess all the attributes of proprietary rights in corporeal property.

The right of a share-holder in a company is such a right. So is the right of management in a religious endowment. Movable property like an annuity is also within the scope of Article 31(2).

These decisions are of no assistance to the petitioner. The right of Government to assess revenue on land which has been revenue free under valid grants cannot be regarded as an incorporeal right in the land. It is as shown above, not a right in land. It is no part of the rights which when bundled up result in ownership.

Full ownership of land vests in the owner even when his land is liable to pay revenue. When he secures freedom from payment of revenue, he obtains a release from an obligation which is no part of the constituent rights of property.

As early as 1875 the Bombay High Court had to consider the question of State (sic) in land. It produced a classical judgment ''Vyakunta Bapuji v. Govt. of Bombay'' 12 Bom HCR App 1 (N). It traces the history of land tenures from the time of Manu. It was found in that case that the proprietary right of the sovereign found no justification from the ancient laws or institutions of the Hindus and was not recognized by modern Hindu lawyers as exclusive or incompatible with individual ownership. The conclusion of Colonel Galloway was referred to with approval in regard to the position that obtained during the Muslim Rule.

His view was that

the soil was the property of the cultivators as much as it could be Law gave no power, policy gave no motive to remove him, to disturb him, so long as he paid his taxes. When he did not, his lands could be attached; and so can those of the first peer holding by the firmest tenure of the English law.

The Taxation Enquiry Committee derived support from this judgment when coming to the conclusion that under the Hindu and Muslim rule the (State never claimed absolute or exclusive ownership of land and that it definitely recognized the existence of private property in it The British rulers therefore did not succeed to any such right.

In regard to Kanara the learned Judges in the Bombay case referred to above found that the holder of the land on Muli tenure enjoyed a hereditary and transferable property in the soil and could not be ousted so long as he paid land revenue assessed upon his land. The finding is inconsistent with the theory that the cultivator or the occupier held land only as a tenant and paid for the use of the land.

The only other authority which has a direct bearing on the question before us is a very recent pronouncement of their The Collector of Bombay Vs. Nusserwanji Rattanji Mistri and Others, It was held in this case that ownership in land could not include the right to levy assessment on the land. Venkatarama Aiyar, J. who delivered the judgment of the Court observed as follows:

We have so far assumed with the respondents that the right of the Government to levy assessment is an interest in land within the meaning of Section 8 of Act 6 of 1857....

In its normal acceptation, ''interest'' means one or more of those rights which go to make up ''ownership''. It will include for example, mortgage, lease, charge, easement and the like, but the right to impose a tax on land is a prerogative of the Crown, paramount to the ownership over the land and outside it.

Under the scheme of the Land Acquisition Act, what is required is only the ownership over the lands, or the inferior rights comprised therein.... It cannot include the right of Government to levy assessment on the lands.

The explicit statement that ''the right to impose a tax on land is a prerogative of the Crown, paramount to the ownership over the land and outside it'' leaves no room for controversy in the matter. Revenue is treated as a tax which is levied in the exercise of the prerogative of the Crown and the right is paramount to ownership. In consequence it was held that by reason of the land acquisition proceedings the right of the Provincial Government to levy assessment was not extinguished.

It was further found that the deed of sale executed after the acquisition proceedings did not place any limitation on the right of the Crown to assess the land. The existence of the sale deed though a distinguishing feature of the case so far as facts go, did not provide any basis for the pronouncement that the right to impose a tax on land is a prerogative of the Crown, paramount to the ownership over the land and outside it.

The proposition of law is of general application and is not limited in its application to the facts of the case. In these circumstances there is no basis for the contention that Government even when withdrawing the right of the occupier to hold land free of revenue is acquiring property or any right in property vesting in the owner for the time being. Since no right is being acquired neither Section 299 of the Government of India Act nor Article 31(2) of the Constitution can have any application.

Acquisition is possible only when some right in property is transferred from the owner to the Government. The impugned Act involves no transfer of the property from the petitioner to the'' Government. It does not, therefore, offend against Section 299 of the Govt. of India Act, 1935 or Article 31(2) of the Constitution.

There is yet another aspect of the matter which requires consideration. While contending that the impugned Act offended against Article 31(2) of the Constitution Mr. Ahmed laid considerable emphasis on the fact that the grants in this case were for consideration. The Government'' had parted with, not only ownership but with the right to assess revenue for pecuniary consideration.

There was legislative recognition of the relinquishment of the right for all times. The implication of the argument was that the Legislature even, in the exercise of its powers to assess revenue on land, could not withdraw a privilege of which full value had been received by the Government acting under the rules then in force. This contention raises the question of the powers of the Legislature.

The impugned Act was passed when the Government of India, 1935 was in force. Section 100(3) of the Government of India Act 1935 provided that

subject to the two preceding sub-sections the Provincial Legislature has, and the Federal Legislature has not, power to make laws for a Province or any part thereof with respect to any of the matters enumerated in List II in the said Schedule (hereinafter called the Provincial Legislative List)

Matters enumerated in List II were within the exclusive jurisdiction of the Provincial Legislature. (sic) No. 39 of List II of Sch. VII relates to land revenue, including the assessment and collection of revenue, the maintenance of land records, survey for revenue purposes and records of rights, and alienation of revenue. The broad heading is land revenue and therefore any matter connected with land revenue would be within the scope of the entry.

The description of other matters is not exhaustive. The impugned Act deals with land revenue. The creation or the revival of liability to assessment of revenue would be directly covered by this entry notwithstanding the fact that in order to assess land revenue it is necessary to withdraw the privileges which had been conferred on the owner of the land under valid grants made about, seventy years before.

The power that the entry places at the disposal of the Legislature is very wide and limited only by the scope of the subject-matter of the entry itself. In-- AIR 1941 16 (Privy Council) Chief Justice Gwyer observed that within their own sphere the powers of the Indian Legislatures are as large and ample as those of Parliament itself.

It was further held in that case that if once It is found that the subject-matter of Crown grant is within the competence of the Provincial Legislature, nothing can prevent that Legislature from legislating about it unless the Constitution itself expressly prohibits legislation on the subject either absolutely or conditionally. In AIR 1944 PC 62 (G) the validity of the C.P. Land Revenue of Estates Act, 1 of 1939 was challenged on the ground that the revenue assessed could not be enhanced until a new settlement was made in accordance with the provisions of law.

Plaintiff''s case was that at the time the impugned Act came into force he was entitled Under the provisions of the existing settlement and the Act of 1917 and some material Kabuliats and orders to continue to hold his Zemindary estate so long as the respective amounts of takoli for which they were assessed by that settlement were-paid until a new settlement was made in accordance with provisions of the law that is applicable to all proprietors owning land-revenue-paying estates or properties.

The question was whether the rights under the settlement and the Kabuliats which all came into existence under the law then in force could be taken away by a subsequent Act of the Legislature. Dealing with this question Chief Justice Spens observed as follows:

As regards the first point, it may well be that the appellant may have believed, reasonably enough, in reliance upon the provisions and. documents referred to, that he was going to hold his estates subject to the payment only of the takoli fixed in 1921 for the period specified in the Kabuliyats and thereafter until a new settlement was made and that new settlement would be made in accordance with the Acts of 1917 and. 1929.

But we can find absolutely nothing in any of the Acts or documents referred to which amounted to any contractual or statutory rights of the appellant which could not at any time be varied, suspended or repealed by enactment of the competent Legislature. The settlement was made and took effect under and by virtue of statutory powers and provisions which could at any time be repealed, varied or replaced by other statutory provisions duly enacted.

In particular by enactment any new form or provisions for the next settlement could have been prescribed at any time. In our judgment there was nothing to prevent the Legislature of the Central Provinces and Berar to which u/s 100 and Item 39 of List II in Sch. 7, Constitution Act, are given powers to legislate in regard'' to land revenue, acting directly in the matter and enacting in respect of all or some existing assessments that the same should be increased as from a specified date to a specified amount.

It may be regarded by some persons as a drastic form of legislation; in so far as it only increases some and not all assessments it may also-be regarded as invidious legislation, but these are not matters for us. We are only concerned with the legality of the legislation; and we are quite unable on the suggested grounds to find any reason for questioning the validity of the Act under consideration.

The Kabuliyats embodying terms of the settlement including their duration were held to contain nothing which could not be varied by a competent Legislature subsequently.

It is quite clear that so long as the Provincial Legislature was acting within the limits of its authority, it had the full power to levy assessments under Item 39 of List II, notwithstanding any previous contracts or legislative enactments. No Legislature can bind succeeding Legislatures for all times by its Acts; much less could the contracts of the Government produce that result whether with or without consideration. Whatever rights may exist in the owners or occupiers of any land in regard to revenue are a legitimate subject-matter of legislation and the Legislature for the time being has the full right to modify the laws under which any assessment was made or any concession or privilege was given.

Section 28 of the Land and Revenue Regulation recognized immunity of lands in question from land revenue. But that Act is subject to legislative modification. The immunity conferred can be withdrawn by repeal or modification of the provisions of the Act. In fact the impugned Act has the effect of repealing those provisions of Section 28 of the Land and Revenue Regulation which exempt revenue free grants from assessments to land revenue.

If Acts of the Legislature were to bind subsequent Legislatures for all times, the sovereignty vesting in the State would keep on dwindling until it may reach a vanishing point. No Legislature, therefore, is handicapped by what has been done previously by it or by any previous Legislature. Nothing in any contract or in any enactment can prevent the Legislature for the time being from varying, suspending or repealing any Act of the competent Legislature when acting within its own competence. It may thus revive obligations which were waived under valid grants.

The view of Chief Justice Gwyer in AIR 1941 16 (Federal Court) has been completely concurred in by their Lordships of the Privy Council in AIR 1946 127 (Privy Council) In this case a talukdar who was a grantee of a sanad from the Governor-General brought a suit for declaration that the U.P. Tenancy Act, 1939, was ultra vires of the Provincial Legislature with respect to certain of its provisions on the ground that the Act; created rights and interests in land in favour of other persons contrary to the sanad granted to him by the Crown and thus derogated from the terms of the Crown grant, because it modified or curtailed the rights conferred by the Crown.

Mr. Ahmed did not omit to rely on this contention also and derived further support for it from the fact that there was consideration for the grant. The impugned Act in that case was found to be within the powers of the Legislature u/s 100 of the Government of India Act, 1935 read with the relevant entry in List II of Schedule VII. It was held in these circumstances that no Court could annul the enactment of the legislative body acting within the legislative scope of its sovereign competence.

Within its own sphere it has sovereign authority. There are no limits on it and if the legislation falls within its defined sphere, the enactment could not be annulled or declared void on the ground that some rights under a grant are adversely affected or infringed thereby. Their Lordships observed that the powers of the Indian Legislatures within their own spheres were as large and ample as those of Parliament itself.

The same principle applies even now, the State Legislature having the same powers in matters on which they can legislate exclusively.

Another general proposition laid down was that the Crown cannot deprive itself of its legislative authority by the mere fact that in the exercise of its prerogative it makes a grant of land within the territory over which such legislative authority exists. Reliance was placed on (1931) 1 Ch 169(E) in support of this view. In that case the Crown which made the grant was also the supreme legislative authority in the protectorate. But the two powers were held to be separate and distinguishable.

Luxmoore, J. at p. 186, observed:

The doctrine of derogation from grant cannot be applied in the case of a grant by the Crown so as to deprive it of its paramount right (i.e. as the legislative authority) to legislate for the Protectorate in which the subject of the grant is situate. To do SO would be to place the Crown with reference to any land granted by it in an inferior position to that occupied by other owners of land within the same Protectorate.

This proposition completely answers the argument based on the fact that there was a grant by the Government under the rules then in force and there was a consideration for it.

No grant whether with or without consideration can affect the legislative power of the State, nor could any legislative Act bind the same or the succeeding Legislatures. The State Legislature therefore was fully competent to legislate under Item 39.and the terms of the grant or the provisions contained in the Land and Revenue Regulation could not curtail or limit its sovereign authority within the limits of its legislative field.

In ILR (1953) 5 Assam 200 (A) the constitutional validity of the impugned Act was challenged. It was found that the Act was valid. The question whether Section 3 of the Act involves acquisition of any property vesting in the petitioner was also considered. It was found that no-acquisition of property was involved. The conclusion reached above is that the right of assessment which the State possesses as part of its-sovereign authority is no part of the rights in land.

It is independent of and paramount to it. It is not a right in land at all; nor does the right vest in the owner or the occupier. Where land is-liable to assessment, an obligation attaches to it, where immunity from land revenue is conferred on it, an obligation is annulled or cancelled. In both the cases, viz. whether the obligation is withdrawn or revived by an executive or legislative act, there is no transfer of any right in land.

Therefore the Act by declaring the land as-liable to assessment does not authorise acquisition of any property or right in land; nor can the declaration of liability to assessment be regarded as acquisition in the sense the word is used either in Section 299 of the Government of India Act, 1935 or Article 31(2) of the Constitution. As held by Chief Justice Spens in AIR 1944 PC 62 (G) "the mere increase of an assessment for land revenue-does not involve any acquisition of the land or any rights in or over immovable property". He observed further that

the word ''acquisition'' implies that there must be an actual transference of, and it must be possible to indicate some person or body to whom is or are transferred, the land or rights-referred to. It is impossible to suggest that when the land revenue is increased, there is any transference to the Provincial Government or any other person of any land or rights in or over immovable property, which remain in the same-possession or ownership as immediately before the increase of the assessment.

These observations fully support the view the learned Advocate General has advanced. They would apply equally well to a case where the liability to pay revenue is revived. There is no distinction in principle between the two cases. The impugned Act does not deal with any property or right in land; nor can it be said that there is any acquisition by the Government of any land or any right in it.

In view of the importance of the question the case was referred to the Special Bench though a Division Bench of this Court had already found the Act to be constitutionally valid.

After a reconsideration of the whole case in the light of arguments advanced my conclusion is that the view taken in the earlier decision of this Court is correct. The petition therefore fails and is dismissed.

Deka, J.M.

I have had the advantage of reading the judgments of my Lord the Chief Justice and my learned brother Ram Labhaya, J. who have elaborately prepared the same.

The main point that arises in this writ petition is--the validity of Assam Act 24 of 1948--the Assam Assessment of Revenue Free Waste Land Grants Act, (hereinafter called the Act), which came into operation with effect from 1-44948. The identical point came up for decision before a Division Bench of this Court, which held that the Act is intra vires the Provincial Legislature, and Section 3 Of the Act, which represents the operative portion of the Act, is not hit by the provisions of Section 299 of the Government of India Act, 1935. (Vide ILR (1953) 5 Assam 200 (A)).

In this case, what has been argued is not the incompetence of the Provincial Legislature to pass this Act, but that it transgressed the provisions of Article 19(1)(f) and Article 31(2) of the Constitution.

The relevant passage in the previous judgment of my Lord Thadani, Chief Justice (to which I was a party) reads as follows:

It was next contended by Mr. Ghose that in any case, the Act contravenes the provision of S 299 of, the Government of India Act. Section 299 deals with deprivation of property. The appellant has not been deprived of property in this case.

What was contained in Section 299 of the Government of India Act has practically been reintroduced in Article 31(2) of the Constitution. In the case of All India Tea and Trading Co. Ltd. (A), it was not argued before the Bench as to whether enjoyment of a landed property without paying land revenue, itself amounted to a property in the eye of law, and, therefore, the Court was not called upon to express any opinion on the point.

My learned colleagues have in this case arrived at: divergent views on this particular point, as if appears from their respective judgments. It will suffice for me to say that I agree with my learned brother, Ram Labhaya, J. in the view that it does not amount to property, a right which does not vest in the holder of the property. Non-payment of land-revenue might be an advantage'' enjoyed by the landlord, and it might go along with the land, but since it cannot be alienated from the corpus for the purpose of enjoyment or acquisition, in my opinion, this fails to constitute a property, even as an incorporeal right in land (vide (S) The Collector of Bombay Vs. Nusserwanji Rattanji Mistri and Others,

My learned colleagues are agreed in the view that there could be no acquisition of this right, and there could, therefore, be no question of paying compensation, when the land is assessed to land revenue, which was so long held free of land revenue and, in this view, it is held that the impugned Act is not hit by the provisions of Article 31(2) or Article 19(1)(f) of the Constitution. With this view, I most respectfully agree.

In my opinion AIR 1944 62 (Federal Court) gives a decisive (sic) in the matter, where it was held that mere increase of an assessment of land revenue does not involve any acquisition of land or any rights in or over immovable property. In ILR (1953) 5 Assam 200 (A) this principle was followed.

Assuming, for argument''s sake, that the right to enjoy the landed property free from land revenue, was a property in itself, the assessment did not amount to substantial deprivation of the property, and was not barred under Article 31(2) of the Constitution or under Article 19(1)(f), therefore, agree that the Rule may be discharged.